William P. Ridgaway, Sr., Administrator v. Mount Vernon Fire Insurance Co. (2015)

MEMORANDUM OF DECISION RE MOTIONS TO SET ASIDE JUDGMENT OF NONSUIT

CORRECTED *

PREAMBLE

ATTORNEY'S OATH

“You solemnly swear or solemnly and sincerely affirm, as the case may be, that you will do nothing dishonest, and will not knowingly allow anything dishonest to be done in court, and that you will inform the court of any dishonesty of which you have knowledge;  that you will not knowingly maintain or assist in maintaining any cause of action that is false or unlawful;  that you will not obstruct any cause of action for personal gain or malice;  but that you will exercise the office of attorney in any court, in which you may practice, according to the best of your learning and judgment, faithfully, to both your client and the court;  so help you God or upon penalty of perjury.”  General Statutes § 1–25.

The matter before the court is grave.

This subrogation case is one from a thicket of litigation arising from the death of William Ridgaway, Jr., on April 16, 2000.   It is claimed the death resulted from the illicit sale of liquor to Anthony Sulls by employees of Silk, LLC, the owner of the Silk Stockings Bar. It is alleged the intoxicated Sulls caused the automobile collision which killed him (Sulls) and Ridgaway.   On April 15, 2000, Anthony Sulls, Frank Sestito, Jr. and William Ridgaway, Jr., were in the Silk Stockings Bar (the Bar) in Groton.   They stayed into the early morning of April 16, 2000.   It is alleged that the Silk Stockings Bar negligently and recklessly served Sulls liquor.   When Sulls, Sestito, and Ridgaway, Jr., left the Bar, they did so together by car, Sulls driving and Sestito and Ridgaway, Jr., his passengers.   Shortly thereafter, a one-car accident occurred in which Sulls, Sestito, and Ridgeway, Jr., were killed.   In two filings in this case, Plaintiffs state Ridgaway, Jr., was then age 20.   The legal drinking age was then 21.   It is claimed the intoxicated Sulls caused the fatality laden accident.

When asked, the ages of the others, i.e., Sulls and Sestito, plaintiffs' counsel did not know their ages or the blood alcohol content of Sulls, Sestito, or Ridgaway.   Nor did counsel have any information as to ownership, etc., of the car they were riding in at the time of the accident.   See Transcript August 19, 2014, pp.

The plaintiffs in this case are William Ridgaway, Sr., Administrator of the Estate of William Ridgaway, Jr., William Ridgaway, Sr., and Rita Grant, both individually, the parents of William Ridgaway, Jr.

The sole defendant is the Mount Vernon Fire Insurance Company (Mount Vernon).

Plaintiffs allege Mount Vernon had issued an excess (umbrella) liability policy to Silk, LLC, which provided coverage to Silk, LLC for the losses plaintiffs claim against Silk, LLC. Plaintiffs claim the Mount Vernon policy was in effect on April 15–16, 2000.   According to plaintiffs, the policy's limit of coverage was $1 million.

Mount Vernon has consistently denied it ever issued such a policy to Silk, LLC.

The plaintiffs herein brought a wrongful death action against Silk, LLC, the owner and operator of the Silk Stockings Bar. Silk, LLC was defended by attorneys provided by First Specialty Insurance Company, the primary liability insurer for Silk, LLC. First Specialty's policy provided a $100,000 limit for liquor liability.   First Specialty's policy also called for it to provide a defense and indemnification to Silk, LLC in the wrongful death action.   Attorney John K. McDonald of the firm of Kernan, Scully & McDonald represented Silk, LLC, in the wrongful death action.

Silk, LLC, and its primary liability insurer, First Specialty, contested Silk, LLC's liability in the wrongful death action.   Silk, LLC held the plaintiffs at bay for almost 10 years until Silk, LLC and plaintiffs settled in March 2011.

Silk, LLC brought an action for a declaratory judgment against Mount Vernon to force Mount Vernon to defend the plaintiffs' wrongful death action and to indemnify Silk, LLC for any loss Silk, LLC suffered in the plaintiffs' wrongful death action.   Attorney John K. McDonald of Kernan, Scully & McDonald represented Silk, LLC in the declaratory judgment action Silk, LLC brought against Mount Vernon.   Silk, LLC d/b/a Silk Stockings Bar v. Mount Vernon Fire Insurance Company, originally returnable on June 18, 2002 to the Superior Court for the judicial district of New London but subsequently transferred to the judicial district of Hartford.   HHD 02 4034598.

Later, Silk, LLC represented to plaintiffs it did not have any assets which could satisfy any award obtained by plaintiffs in their wrongful death action against Silk, LLC.

Connecticut has a direct action statute, General Statutes § 38a–321.   Its provisions pertinent here are:

Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the cause of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.

General Statutes, § 38a–321.

In March 2011, plaintiffs and Silk, LLC reached an agreement to settle.   Critical parts of that agreement are based upon the statute.

The agreement provided that Silk, LLC would stipulate to the entry of a $1 million judgment against Silk, LLC in favor of the plaintiffs in the wrongful death action.   Silk, LLC also agreed to assign to plaintiffs all its rights against Mount Vernon arising from plaintiffs' wrongful death claim.   Silk, LLC also agreed to pay plaintiffs $75,000.   See Stipulated Judgment and Assignment Agreement, Executed on various dates between March 12–16, 2011, ¶ 4, p. 2. [109.]  Exhibit C. General Statutes § 38a–321.

It is also noteworthy that the Stipulated Judgment and Assignment Agreement also provided that plaintiffs agreed to “release Silk, LLC, its officers and employees from further liability regarding the payment and satisfaction of said judgment and any other recovery that may be had.”   Stipulated Judgment and Assignment Agreement, ¶ 6.   Op. Cit.;   See also General Statutes § 38a–321.

Attorney John K. McDonald signed the Stipulated Judgment and Assignment Agreement on behalf of Silk, LLC.

There was other litigation.   Plaintiff brought suits attempting to establish liability against various individuals and entities with deep pockets to make up for the apparent dearth of insurance covering the plaintiffs' wrongful death claim against Silk, LLC.

In March 2011, these defendants entered into a Confidential Settlement Agreement with plaintiffs and Silk, LLC.

The defendant herein, the Mount Vernon Fire Insurance Company (Mount Vernon) was not a party to the Confidential Settlement Agreement.   Mount Vernon was not a participant in the negotiations which led to the Confidential Settlement Agreement.

This case is based on Plaintiffs' contention that on April 15 and 16, 2000, when Anthony Sulls and the plaintiffs' decedent William Ridgaway, Jr., were patrons at Silk, LLC's bar, and upon their leaving Silk, LLC's bar, Silk, LLC was insured by an Mount Vernon umbrella policy which covered Silk, LLC for the wrongful death claim made by plaintiffs against Silk, LLC for the death of William Ridgaway, Jr.

Mount Vernon denied and denies it ever issuing such a policy and filed Special Defenses to the plaintiffs' Revised Complaint.   Mount Vernon also counterclaimed for a declaratory judgment that it (Mount Vernon) never issued such a policy.   See Revised Answer, Special Defenses and Counterclaim to Plaintiff's Revised Complaint, October 19, 2012. [157.]

Mount Vernon's Special Defenses to plaintiffs' Revised Complaint are set forth below in Arial typeface in lieu of quotation marks.

SPECIAL DEFENSES

BY WAY OF FIRST SPECIAL DEFENSE (ALL COUNTS)

If the plaintiffs are entitled to any recovery under the policy of insurance issued by Mount Vernon Fire Insurance Company to Silk, LLC, any recovery by the plaintiffs shall be in accordance with the terms, conditions, and limitations of the policy:  the policy's “limits of insurance,” “defense settlements,” “notice,” and “other insurance” provisions, and amendments thereto.

BY WAY OF SECOND SPECIAL DEFENSE (ALL COUNTS)

Coverage for the underlying lawsuit against Silk, LLC is excluded under the subject insurance policy Endorsement UL–303 (4/94), “Exclusion—Automobile Liability”:

Notwithstanding the terms and conditions of this policy which are or may be to the contrary, it is agreed that we will not provide coverage for a loss arising out of the ownership, maintenance, operation, use, entrustment, loading or unloading of any automobile.   All other terms and provisions of this policy shall remain unchanged.

Coverage for the underlying lawsuit against, Silk, LLC is similarly excluded under the policy exclusion providing that the policy “does not apply under Coverage B” to:

14.  Bodily injury, property damage, personal injury or advertising injury arising out of the ownership, maintenance, operation, use, entrustment to others, loading or unloading of any auto.

BY WAY OF THIRD SPECIAL DEFENSE (ALL COUNTS)

Coverage for the underlying lawsuit against Silk, LLC is excluded under the subject insurance policy, which provides that the policy “does not apply under Coverage B” to:

16.  Bodily injury or property damage for which any insured may be held liable by reason of:

a.  Causing or contributing to the intoxication of any person;

b. The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol;

c. Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

BY WAY OF FOURTH SPECIAL DEFENSE (ALL COUNTS)

The stipulated judgment and assignment agreement entered into between the plaintiffs and insured, Silk, LLC, was the product of fraud or collusion between them, inasmuch as they knowingly entered into an unreasonable agreement.   By way of the agreement, Silk, LLC stipulated to reckless service of alcohol, when Silk, LLC previously denied this claim and the parties to the agreement knew there was insufficient evidence to support it, in exchange for the plaintiffs' agreement not to pursue Silk, LLC for the amount of the stipulated judgment.   Additionally, the stipulated judgment and assignment agreement negated Silk, LLC's viable special defenses of participation and contributory recklessness, against the plaintiffs' decedent, both of which, if proven, would serve as complete bars to any recovery by the plaintiffs against Silk, LLC, and now the plaintiffs' claim against Mount Vernon.

Accordingly, the stipulated judgment and assignment were an improper means for the plaintiffs to circumvent the statutory damages cap for a Dram Shop Act violation, and were predicated upon the agreement that only Mount Vernon could be liable to bear the increased cost of the claim.   As such, the stipulated judgment and assignment agreement provides an improper basis for recovery by the plaintiffs against Mount Vernon.

BY WAY OF FIFTH SPECIAL DEFENSE (FIRST COUNT)

The plaintiffs' allegations regarding acts or omissions of Mount Vernon are barred by Connecticut General Statutes Section 52–576, to the extent those acts or omissions occurred more than six years prior to the institution of this lawsuit in June 7, 2011.

BY WAY OF SIXTH SPECIAL DEFENSE (SECOND AND THIRD COUNTS)

The plaintiffs' [allegations] regarding acts or omissions of Mount Vernon are barred by the statute of limitations set forth in Connecticut General Statutes Section 42–110g(f), to the extent those alleged acts or omissions occurred more than three years prior to the institution of this lawsuit on June 7, 2011.

Revised Answer, Special Defenses and Counterclaim to Plaintiff's Revised Complaint, October 19, 2012, pp. 7–10. [157.]

Plaintiffs denied “each and every allegation contained in” Mount Vernon's six Special Defenses.   Reply, January 16, 2012. [165.]

Mount Vernon counterclaimed for a declaratory judgment.

Several relevant paragraphs (22) of Mount Vernon's Counterclaim against plaintiffs follow and are set forth herein Arial typeface in lieu of quotation marks:

2. At all relevant times, Silk, LLC d/b/a Silk Stockings (“Silk, LLC”), was a night club located at 403 Route 12, Groton, Connecticut, owned and operated by Robert S. Giordano and Norman Costello.

3. On or before February 10, 2000, Mr. Giordano and/or Mr. Costello sought to obtain primary and secondary commercial insurance for Silk, LLC from a retail insurance broker or agent doing business as Levine Companies and Levine Louis Insurance n/k/a Webster Insurance, Inc., 914 Hartford Turnpike, P.O. Box 6003, Waterford, Connecticut (“Levine/Webster Agency”).

4. On or about February 10, 2000, Judith Knauer, CSR n/k/a Judith Truax (“Judith Knauer”), an employee of Levine/Webster Agency, made a written request to wholesale surplus lines insurance broker, Cowles & Connell of Connecticut, Inc., 530 Preston Avenue Suite 205 Meriden, CT 06450 (“Cowles & Connell”), attaching a February 10, 2000–dated ACORD Commercial Insurance Application, in an effort to obtain a commercial umbrella policy for and at the behest of Silk, LLC.

5. On or about February 14, 2010, having received a request from Cowles & Connell for a commercial umbrella policy of insurance, Mr. Hugh Seltner of Mount Vernon's underwriting department prepared a commercial umbrella policy “Set Up Worksheet” in preparation for issuing a quote for Silk, LLC. Said Worksheet included a “Schedule of Underlying Insurance” which, as prepared, specifically listed “N/C” or “Not Covered” with respect to Liquor Liability coverage.

6. On the same date, Mr. Seltner completed a “Commercial Umbrella Worksheet,” Quote Number:  CUP 0012952, which set forth the premiums for excess General Liability and Auto Liability coverage and which was provided to Lisa Walicki of Cowles & Connell for the Silk, LLC Commercial Umbrella Policy.

7. On the same date, February 14, 2000, Mr. Seltner prepared and issued a Quote to Lisa Walicki of Cowles & Connell for the Silk, LLC Commercial Umbrella Policy based on the worksheets he had prepared.   The Quote states:  “WE CAN OFFER A COMMERCIAL UMBRELLA POLICY, $10,000 SIR, IN MOUNT VERNON FIRE INSURANCE CO. FOR A TOTAL PREMIUM OF $1 Mil Limit:  $750M $2 Mil Limit:  $1,500 [;] $3 Mil Limit:  $2,250.”   The Quote also specifically provided:  “QUOTE REQUIRES THE FOLLOWING UNDERLYING LIMITS OF LIABILITY:  ․ LIQUOR LIABILITY:  NOT COVERED.”

8. On or about February 16, 2000, Silk, LLC's agent, Judith Knauer of Levine/Webster Agency, prepared a Proposal of Insurance for Silk, LLC and provided the same to Cowles & Connell.   The Proposal references a premium of $18,904.08 for a primary commercial policy with First Specialty Insurance, which included, inter alia, a $100,000 limit for liquor liability.   The Proposal also references a premium of $830 for commercial umbrella coverage from Mount Vernon, with a limit of $1 million;  or alternative limits of $2 million and $3 million for premiums of $1,610 and $2,390, respectively.

9. On the same date, February 16, 2000, Lisa Walicki of Cowles & Connell provided a “Revised” Quotation to Judith Knauer of Levine/Webster Agency for a commercial insurance, including both primary coverage from First Specialty Insurance Corp. and an umbrella policy from Mount Vernon.   With respect to the First Specialty Insurance Corp. policy, the Revised Quotation offered primary coverage for a total premium of $18,904.08 ($18,052.00, plus $722.08 tax, $80,000 “INSP” and $50.00 poll fee), which amount included $100,000 liquor liability limits for a premium of $7,200.00.   With respect to the “Commercial Umbrella,” the Revised Quotation offered a $1 million limit for a premium of $830 ($750.00, plus $30 tax and $50 poll fee), and makes no reference to umbrella liquor liability coverage.

10. On or about April 7, 2000, Ms. Knauer provided a completed “Restaurant Supplemental Application” and Surplus Lines Affidavit signed by her and by Robert Giordano to Cowles & Connell, as was required for issuance of the excess and umbrella policy by Mount Vernon.

11. On or about the same date, April 7, 2000, Levine/Webster Agency, on behalf of its customer, Silk, LLC, requested that Cowles & Connell issue the policy in accordance with the quote, to be effective as of April 7, 2000.

12. On or about April 10, 2000, Ms. Walicki of Cowles & Connell issued a “Coverage Confirmation” or insurance binder for Silk, LLC, effective April 7, 2000 (“the Binder”), and provided the same to Levine/Webster Agency.   The Binder lists the First Specialty Insurance Corp. policy, number CPP26575, with a total premium of $18,904.08, as well as a “Commercial Umbrella” policy by Mount Vernon (no number) with a total premium of $830.00.   A note on the Binder asks Silk's agent for the policy applications to be sent as soon as possible.

13. On or about April 10, 2000, Ms. Walicki notified Mount Vernon's underwriting department that Cowles & Connell had bound coverage, effective April 7, 2000, per the terms of the Mount Vernon quotation dated February 14, 2000.   It also advised that a completed umbrella application was to follow by the end of the week.

14. On or about April 12, 2000, Ms. Knauer provided copies of the signed policy applications for Silk, LLC to Cowles & Connell.

15. On or about April 13, 2000, Silk, LLC signed a Commercial Premium Finance Agreement and Disclosure Statement with First Insurance Funding Corp. through its agent, Levine/Webster Agency, in order to pay for its insurance policies with First Specialty Insurance Corp. and Mount Vernon, as well as an additional workers' compensations policy with NCCI. The premium listed for Mount Vernon is the $750.00 base premium, which amount corresponded with the quoted $1 million coverage limit.

16. On April 27, 2000, Mr. Seltner advised Lisa Walicki of Cowles & Connell via facsimile that Mount Vernon had assigned policy number CUP2006608 to Silk, LLC and that the policy would follow shortly.

17. On May 25, 2000, Cowles & Connell provided a copy of the signed Silk, LLC ACORD Umbrella Section application to Mount Vernon.

18. On or about May 31, 2000, in accordance with its February 14, 2000 quotation of insurance, Mount Vernon issued a Commercial Umbrella Policy of insurance, bearing effective dates of April 7, 2000 to April 7, 2001 and policy number CUP2006608 (“the Commercial Umbrella Policy”), to Silk, LLC.

19. At all times, Silk, LLC's retail broker or agent, Levine/Webster Agency, which acted on behalf of Silk, LLC in obtaining the Commercial Umbrella Policy from Mount Vernon via Cowles & Connell, understood and intended that neither the Binder nor the Commercial Umbrella Policy would provide or does provide liquor liability coverage to Silk, LLC. Levine/Webster Agency was further aware that, pursuant to Mount Vernon guidelines, said coverage could not have been written over the $100,000 of liquor liability coverage provided in the First Specialty Insurance Corp. policy issued to Silk, LLC for the same policy period.

20. At all times, the wholesale surplus lines broker, Cowles & Connell, understood and intended that neither the Binder nor the Commercial Umbrella Policy would provide or does provide liquor liability coverage to Silk, LLC. Cowles & Connell was further aware that, pursuant to Mount Vernon guidelines, said coverage could not have been written over the minimal $100,000 in liquor liability coverage provided in the First Specialty Insurance Corp. policy issued to Silk, LLC for the same policy period.

21. At all times, Mount Vernon understood and intended that the Commercial Umbrella Policy would not and did not provide liquor liability coverage to Silk, LLC. Moreover, pursuant to company guidelines, the Commercial Umbrella Policy could not have been written over the $100,000 of liquor liability coverage provided in the First Specialty Insurance policy issued to Silk, LLC for the same policy period.

22. On or about October 10, 2000, Mount Vernon first received notice of an intent to bring an action under the dram shop act, Connecticut General Statutes § 30–102, against Silk, LLC in connection with the April 16, 2000 death of William P. Ridgaway, Jr., which allegedly resulted from the sale of alcohol to Anthony Sulls.

23. By way of correspondence dated October 12, 2000 and May 29, 2002, Mount Vernon issued correspondence to Silk, LLC disclaiming the existence of coverage for the said claim against Silk, LLC under the Commercial Umbrella Policy because there is no liquor liability coverage under the Insuring Agreement for Coverage A—Excess Liability Insurance (Following Form) and because such coverage is specifically excluded under Coverage B—Umbrella Liability Insurance.

See Revised Answer, Special Defenses and Counterclaim to Plaintiff's Revised Complaint, October 19, 2012, pp. 11–17, ¶ s 2–23. [157.]

Mount Vernon counterclaimed seeking a declaratory judgment that Mount Vernon had no obligation to either defend or indemnify Silk, LLC because it (Mount Vernon) had not written insurance providing Silk, LLC with liquor liability coverage.   Revised Answer, Special Defenses to Plaintiffs' Revised Complaint, October 19, 2012, pp. 10–24. [157.]

Plaintiffs denied the allegations of Mount Vernon's Counterclaim.   Plaintiffs' Substitute Answer and Special Defenses to the Defendant's Counterclaim dated October 19, 2012, December 10, 2013. [184.]  Plaintiffs also asserted Special Defenses to Mount Vernon's Counterclaim.   Op. Cit., pp. 6–10. [184.]

Mount Vernon replied denying same.   Reply to Special Defenses of Plaintiffs/Counterclaim Defendants, January 10, 2014. [186.]

Plaintiffs moved to strike some or parts of Mount Vernon's Reply.   After a ruling on same [187.01], Mount Vernon filed its Substitute Reply to Special Defenses of Plaintiffs/Counterclaim Defendants Pursuant to Practice Book Section 10–44, March 14, 2014. [189.]  In it Mount Vernon reiterated its denial of the Special Defenses and added “matters in avoidance” to its replies to the Fourth, Fifth and Eighth Special Defenses. [189.]

DISCUSSION

This is an action based on a policy of insurance plaintiffs claim Mount Vernon issued to Silk, LLC. Plaintiffs also claim all the rights associated with that policy have passed to plaintiffs.   Although, the plaintiff's claim herein is based on a policy they allege Mount Vernon issued to Silk, LLC, the policy is not a part of the court record.

Mount Vernon is represented by Attorney Joseph J. Andriola of the firm, O'Connell, Attmore & Morris, LLC. Personnel of that firm asked the plaintiffs' attorneys for copies of the Traux materials during July and August 2013.   Their efforts were for naught.   Lead counsel for plaintiffs wrote Atty. Andriola:

Because the Plaintiffs are subject to a confidentiality agreement, I will not be turning over any documents unless ordered to do so by the Court.

Letter dated August 23, 2013 from Robert I. Reardon, Jr., to Joseph Andriola, Esq., Counsel for Mount Vernon, Exhibit A to Motion for Order, September 26, 2013. [179.]

Implicitly, that sentence says plaintiff will produce the Traux materials if the court orders so.

Perhaps following counsel for plaintiffs' suggestion, Mount Vernon moved for production of the Traux materials on September 26, 2014.   Motion for Order, September 26, 2013. [179.]

On October 3, 2013, plaintiffs objected to Mount Vernon's Motion for Order.   The plaintiffs' stated:

Production of the documents requested would cause the Plaintiffs to violate the confidentiality agreement entered into with other parties in separate lawsuits.

Objection to Motion for Order and Cross Motion for Protective Order (# 179), October 3, 2013, p. 3. [180.]

That theme continued throughout the plaintiffs' Objection.   Referring to counsel for plaintiffs' August 23, 2013 letter to Attorney Andriola, plaintiffs said:

Plaintiffs' counsel responded by letter stating that he would not be turning over those documents because the Plaintiffs are subject to a confidentiality agreement.

Id., p. 2.

The court noted plaintiffs' abrupt about-face.   Here, plaintiffs “paraphrase” their August 23, 2013 letter dropping all reference to their earlier “unless ordered to do so by the Court” exception.

Thus, in less than six weeks,¹ plaintiffs had the court order exception vanish.

The theme of plaintiffs' Objection was written about at length:

Production of the documents requested would cause the Plaintiffs to violate the confidentiality agreement entered into with other parties in separate lawsuits.   In this regard, any order by this court requiring production of these documents would invade matters that the parties to that agreement fully intended at the time of execution to remain forever confidential.   If the plaintiffs produce the requested discovery documents, they could be exposing themselves to the risk of litigation for being in breach of contract.   Furthermore, plaintiffs' counsel has an ethical obligation pursuant to Rule 1.6 of the Rules of Professional Conduct to protect his client's interests and a duty to challenge any court order that he believes seeks unnecessary disclosure of confidential information.   See Woodbury Knoll, LLC, 305 Conn. 750, 764 (2012) (quoting Rule 1.6 of the Rules of Professional Conduct and stating that in complying with a court order, ‘an attorney is nevertheless obliged to disclose only what is necessary and to challenge the court order when he believes that such disclosure is not necessary’).

* * *

In this case, plaintiff's counsel's ethical obligations require him to oppose the instant motion because of its adverse implications for his clients.   To that end, the court should not order the plaintiffs to disclose the aforementioned discovery as plaintiffs' counsel believes the motion constitutes an impermissible invasion of his client's confidences.

Objection to Motion for Order and Cross Motion for Protective Order (# 179), October 3, 2013 pp. 3–4. [180.]

In their Objection, plaintiffs cite no authority for their position that the confidentiality agreement, solely by the will of its signers, gains protection which bars disclosure of its contents and terms.   Plaintiffs are not shy about citing legal authority.   Plaintiffs' not informing the court of legal authority means plaintiffs know of none.   The court knows of none.   There is none.

Plaintiffs' request for “an ‘in camera’ inspection of the agreement by the court only ” (underlining in original) was rejected as such a request is an improper attempt to circumvent the rules prohibiting the sealing of files and limiting disclosure of documents.   See PRACTICE BOOK §§ 11–20A and 11–20B.

Mount Vernon responded to plaintiffs' Objection urging the court to order the production of the Traux materials.   See Reply to Plaintiff's Objection to Motion for Order and Objection to Cross Motion for Protective Order, October 8, 2013. [181.]

The inevitable followed.   Plaintiffs filed their Sur–Reply to Defendant's Reply to Plaintiffs' Objection to Motion for Order and Objection to Cross Motion for Protective Order (# 181), October 15, 2013. [182.]  Therein, plaintiffs reiterated their reliance on the confidentiality agreement's barring production of the Traux materials.

Plaintiffs wrote:

4.  Now, Mount Vernon expects the plaintiffs to cite to the specific language of the agreement that would serve to bar disclosure of the requested documents or to append the agreement to their briefs, which would then become public record, in order to prove that disclosure of the requested documents would cause them to violate the confidentiality agreement.   These assertions are preposterous, as dissemination of the terms and conditions of the confidential agreement is precisely the kind of conduct that is prohibited when an agreement is confidential in nature.   Citing to the specific language in the agreement that the plaintiff claims precludes them from producing the requested discovery documents and/or appending the contents of the agreement for the world to see on the public docket would expose the plaintiffs to liability for the breach of contract and would expose plaintiff's counsel to liability for doing so.

* * *

6. It is submitted, however, that should the court require inspection of the confidentiality agreement before reaching a ruling on whether the requested discovery documents are subject to the provisions of the confidentiality agreement, then the plaintiffs would request an “in camera” inspection of the agreement by the court only, as the agreement is, itself, confidential, and may not be inspected by Mount Vernon or any other non-party to the agreement.

* * *

8․  However, if the court finds it necessary to review the provisions of the agreement to determine whether the instant production request would violate the terms of the agreement, then the plaintiffs respectfully request an “in camera” inspection by the court only prior to the ruling on the defendant's Motion for Order.

Plaintiffs' Sur–Reply to Defendant's Reply to Plaintiffs' Objection to Motion for Order and Objection to Cross Motion for Protective Order (# 181).   October 15, 2013, pp. 3–5. [182.]

The court's exposure to confidentiality agreements was and is admittedly limited.   It is beyond the court's experience and comprehension how a confidentiality agreement by and among private parties could trump a court order to produce documents.

The plaintiffs' Objection was premised entirely on the “confidentiality agreement.”   In order to determine the validity of the plaintiffs' Objection, the court had to see the confidentiality agreement.

The confidentiality agreement was not a part of the record.

The “confidentiality agreement” had to be filed and made a part of the record in order for the court to rule on the validity of plaintiffs' Objection.   On February 26, 2014, the court entered a no-frills, straight-forward order:

Plaintiff shall file a copy of the confidentiality agreement upon which plaintiff relies by March 7, 2014.   Dollar amounts may be redacted from the copy filed.

Order, February 26, 2014. [180.01.]

Plaintiffs' counsel chides the court for not having had oral argument before ordering plaintiffs, as it did on February 26, 2014, to file the confidentiality agreement by March 7, 2014.   E.g.:

[T]he court issued an order (# 180.01) on February 26, 2014, without oral argument directing me not to send a copy of the Confidential Settlement Agreement to opposing counsel as requested in the defendant's Motion for Order of September 26, 2013 (# 179.00), but instead to file a copy with the court.   (Emphasis added).

Affidavit of Robert Reardon, Jr., June 2, 2014, ¶ 8.   Supplemental Affidavit, etc., June 2, 2014. [201.]

Of course, the purpose of the oral argument would be to urge the court to accept plaintiffs' statement that production of the Traux materials to Mount Vernon would cause plaintiffs to violate the confidentiality agreement.   And, plaintiffs' argument necessarily would have been that the court must accept counsels' (officers of the court) Objection and the position asserted therein without further ado.

Think of that.   Because of the court's not having had oral argument, the court was deprived of hearing counsel for plaintiffs tell the court it was out of line for even questioning the Objection.   In other words, because plaintiffs' counsel made the Objection, the court was wrong in not accepting it without further inquiry.

Necessarily, because counsel for plaintiffs made the statement, it should have been taken as correct and not open to question.   Never mind that Mount Vernon had challenged it.   See Mount Vernon's Reply to Plaintiff's Objection, etc., October 8, 2013. [181.]

This is frightening.   Supposed the court had done as counsel for plaintiffs urged, trusted counsel word, and accepted the Objection closing further inquiry.   Then, the court might never have had the benefit of knowing the truth about what the confidentiality agreement actually said.

As of March 14, 2014, plaintiffs had not filed the “confidentiality agreement.”

On March 14, 2014, Mount Vernon filed its Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order. [190.]  Mount Vernon sought the nonsuit for plaintiffs' failure to comply with the court's February 26, 2014 order to—

file a copy of the confidentiality agreement upon which plaintiff relies by March 7, 2014.

Mount Vernon's Motion continued:

To date, the Plaintiffs have failed to file the agreement, and are in willful noncompliance with the Court's Order.

Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order, March 14, 2014, p. 2. [190.]

On April 11, 2014, plaintiffs objected to Mount Vernon's Motion for Entry of Non–Suit, etc.   Plaintiffs represented therein:

On April 8, 2014, via facsimile, a copy of the redacted Confidential Settlement Agreement and Specified Releases was sent to defense counsel.

WHEREFORE, in light of the fact that plaintiffs have complied, the Defendant's motion should be denied as moot.

Objection to Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order (# 190.00), April 11, 2014. [192.]

Note, the plaintiffs inform that the title of the document which plaintiffs had been calling a “confidentiality agreement,” and other titles, is described [identified] by plaintiff's counsel as “Confidential Settlement Agreement and Specified Releases.”  [N.B. hereinafter “Confidential Settlement Agreement, etc.”]

The docket confirmed that plaintiffs had not filed the Confidential Settlement Agreement and Specified Releases as of that date, i.e., April 28, 2014.   By April 28, 2014, the court was aware of and had considered the validity (legal effectiveness/merits or worthiness) of Plaintiffs' Objection to Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order (# 190.00), April 11, 2014. [192.]  It was without merit.

But the plaintiffs had not filed the relied upon confidentiality agreement, re-christened “Confidential Settlement Agreement and Specified Releases” by the court ordered deadline of March 7, 2014, or even by April 28, over 7 weeks beyond the court deadline.

The court ordered the nonsuit. [190.01.]

When the court orders a nonsuit, no further proceedings are necessary and judgment of nonsuit is entered by the clerk pro forma.

R. Bollier et al., Stephenson's Connecticut Civil Procedure, (3d Ed.) § 95, p. 277.  (Emphasis in original;  footnote omitted.)

Judgment on the nonsuit entered automatically on April 28, 2014.

On May 2, 2014, four days after the nonsuit and the judgment thereon entered, Mount Vernon filed its Reply to Plaintiffs' Objection to Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order, May 2, 2014. [193.]  Mount Vernon's counsel attached a copy of the Confidential Settlement Agreement and Specified Releases as Exhibit A which had been sent to counsel for Mount Vernon by plaintiffs' counsel.   It had 15 pages of text pages, 5 numbered pages (16–20), and one unnumbered page, bearing signatures.

The jig was up.

The Confidential Settlement Agreement and Specified Releases itself, in the words of counsel for Mount Vernon—

confirms that the Plaintiffs had no valid basis for withholding the requested documents in the first place, and delayed the progress of discovery for six months without any good cause.

Section 18 of the Confidential Settlement Agreement and Specified Releases contains the only mention of confidentiality in the document.   Section 18 begins:

It is a material condition of this Agreement that, except as required by law or court order, the Parties shall not disclose to any person or entity, and shall take all reasonable measures to prevent the disclosure of, the existence terms and or subject matter of this Agreement ․

(Emphasis added.)

The Confidential Settlement Agreement, etc., expressly authorized the disclosure provided there was a court order.   Mount Vernon's September 26, 2013 Motion for Order [179] sought the requisite court order.   Plaintiffs' Objection dated October 3, 2013[180] blocked the court's ruling on Mount Vernon's Motion.   Production of the documents sought (the Traux material) would not cause a violation of the Confidential Settlement Agreement, etc.   Plaintiffs' assertion that it would cause plaintiffs to violate the Confidential Settlement Agreement, etc., was “a false statement of fact” to this court made with the intent to mislead.

Even if there were no express “court order” exception written in the Confidential Settlement Agreement, etc., as a matter of law, the production would be required if ordered by the court.

The court's docket shows the following entry:

194.00 05/08/2014 C JUDGMENT OF NONSUIT BEFORE TRIAL COMMENCED.

The “JUDGMENT OF NONSUIT BEFORE TRIAL CONMENCED ” docket entry actually occurred on April 28, 2014, when the judge (the undersigned) sent it to the clerk for processing.   However, the office of the clerk did not process it until May 8, 2014.   That processing included posting and coding into the docket, posting the aware of that decision so it was available for viewing on the Judicial Website, sending notice to counsel, including a written copy of the decision, etc.   Thus, counsel, the parties, and the public could not have known of the April 28, 2014 nonsuit and the judgment thereon until at least May 8, 2008.

Since then, plaintiffs have filed several motions, affidavits, etc., the goal of which is to have the judgment of nonsuit set aside.

Plaintiffs' counsel would have the court believe that they are not at grade level for reading and reading comprehension.   What the court has earlier described as a “no frills, straight-forward order” and “succinct, clear, and unambiguous” has been interpreted according to the whims of plaintiffs' counsel.

The pertinent part of the Order provided:

Plaintiff shall file a copy of the confidentiality agreement relied upon by plaintiff by March 7, 2014.

Order, February 26, 2014. [180.01.]

Plaintiffs' counsel wrote:

In light of this ambiguous ruling, which did not indicate where or how the document was to be “filed” ․

Supplemental Memorandum of Law in Support of Motion to Open Judgment Upon Nonsuit (# 198.00), June 6, 2014, p. 7. [206.]

Plaintiff's counsel should be embarrassed by this statement.   That firm has filed thousands of documents in their busy litigation practice.   They should be embarrassed that they now proclaim they did not know where or how they are to file documents for a case.

And, if they really didn't know, they could have asked any lawyer in the county for guidance.   Prevention of embarrassment is very informative.   There is no record they asked any counsel for advice.   Also, other filings say the Confidential Settlement Agreement was not filed because counsel bowed to “concerns” and “fears.”   The “concerns” and “fears” were unrealistic.

Plaintiffs' counsel says under oath:

[T]he court issued an order (# 180.01) on February 26, 2014, without oral argument directing me not to send a copy of the Confidential Settlement Agreement to opposing counsel as requested in the defendant's Motion for Order of September 26, 2013 (# 179.00), but instead to file a copy with the court.

Supplemental Affidavit in Support of Motion to Reargue, etc.   June 2, 2014, Affidavit of Robert I. Reardon, ¶ 8. [201.]

How plaintiffs' counsel drew from the court's order that he was being directed “not to send a copy of the Confidential Settlement Agreement to opposing counsel” is simply baffling.   It is not in the Order.

Mount Vernon's Motion for Order of September 26, 2013 (179.00) did not mention the confidentiality agreement.   There is no record Mount Vernon even knew of the confidentiality agreement on September 26, 2013.   There is no record of it until a week later when plaintiffs interjected it in this case in plaintiff's October 3, 2013 Objection which claimed the confidentiality agreement barred disclosure of the Traux materials to Mount Vernon.   See Objection To Motion For Order And Cross Motion For Protective Order (# 179.00), October 3, 2013. [180.]

But, all is not lost.   The plaintiffs had claimed they did not know where or how to file the confidentiality agreement because of the ambiguity of the court's Order.   However, as of the time being discussed in counsel's affidavit, counsel knew the Order was to file a copy of the Confidential Settlement Agreement with the court.   Progress?

On April 8, 2014, plaintiffs' counsel sent a copy of the confidentiality agreement to counsel for Mount Vernon.   The body of that cover letter is set forth in toto:

Pursuant to the Court's order of February 26, 2014 in the above captioned case, Plaintiff has enclosed herein a copy of the “Confidential Settlement Agreement and Specified Releases.”

Again, how plaintiffs extracted from the Order that plaintiffs' sending a copy of the confidentiality agreement to opposing counsel was pursuant to the court's order of February 26, 2014 is beyond the court, especially when, plaintiffs earlier said, the Order was “directing me not to send a copy of the Confidential Settlement Agreement to opposing counsel.”

The court does recognize that a copy of any document filed must be sent contemporaneously to all other parties and adversaries.   That is pursuant to court rule.  Practice Book § 10–12.   But it cannot be claimed here that the copy sent to counsel for Mount Vernon was being done pursuant to § 10–12;  plaintiffs did not send a copy of the confidentiality agreement to the court for filing.

Further to the cover letter.   It contains no restrictions or warnings to the effect that the confidentiality agreement is a confidential document and must not be disclosed.

And then, there is plaintiffs' Objection To Motion For Entry Of Nonsuit And Sanctions For Failing To Comply With Discovery Order (# 190.00), April 11, 2014 [192] stating that sending a copy of the confidentiality agreement to defense counsel was compliance with the court's Order.   It was not.   See plaintiffs' filing. [192.]  See also court's ruling on same. [192.01.]

Based on the timing, sequence and content of Mount Vernon's Motion for Order, September 26, 2013[179];  Plaintiffs' Objection, October 3, 2013[180];  Mount Vernon's Reply, etc., October 8, 2013[181];  and the court's order to file the confidentiality agreement [180.01];  it was obvious to all, including plaintiffs' counsel, that the court ordered the “confidentiality agreement” filed so the court could determine the merits of plaintiffs' Objection which was based entirely on the “confidentiality agreement.”

The February 26, 2014 Order was entered by the court.

It was not written by a Navajo Code Talker.

Plaintiffs' dalliances with it were not and should not be tolerated.

Plaintiffs claim the plaintiffs had not requested confidentiality.

Plaintiffs were at pains to convince the court that the confidentiality provision became a part of the Confidential Settlement Agreement, etc., at the insistence of the attorneys representing the parties defendant in the Agreement.

At one point, plaintiffs “noticed” the court that they would present Attorney McDonald who represented Silk, LLC in the underlying wrongful death case as a witness to testify:

Attorney McDonald is expected to offer testimony regarding the circumstances of the defendants' request for confidentiality in the underlying wrongful death action including the defendants' concerns that disclosure of the settlement, regardless of the amounts paid to the plaintiffs, if any, would reflect adversely on their business interests and reputation in the community.

Motion to Continue Oral Argument and Notice of Intent to Present Testimony, June 6, 2014. [205.]

Thereafter, plaintiffs filed an affidavit of Attorney McDonald.   Three paragraphs of it follow:

4.  A condition of that resolution was that the parties not disclose the existence of the agreement and any of its terms.   That agreement resolved all of the claims with the exception of the declaration actions against Mount Vernon Insurance Company.

5. It is my belief that the defendants requested confidentiality as they were concerned about the fact that resolution of their claims if made public, may have an adverse effect on their business reputations since some of these parties were Connecticut insurance agencies and businesses and the allegations against them involved malfeasance in the conduct of their business.

6. The confidentiality provisions in the agreement were not requested by the Reardon Law Firm, P.C. as plaintiffs' counsel, but were only entered into at the request of the defendants.

Supplemental Affidavit in Support of Motion to Reopen Nonsuit, June 23, 2013. [213.]  See paragraphs 4–6 of McDonald affidavit.

The record does not inform about the resistance, if any, made by plaintiff's counsel.

At a hearing held on June 2, 2014, confidentiality and the role of the confidentiality agreement's defense lawyers were much on the plaintiffs' mind.   Excerpts follow:

And the reason for this, Your Honor is there are terms in that confidentiality agreement, not just the amount.   The terms that affect Mount Vernon and the other parties, and the other parties did not wish Mount Vernon to be aware of them.

Transcript, June 2, 2014, pp. 16–17.

There is nothing about someone trying to avoid turning over documents.   Frankly, Your Honor, I could care less, because the particular transcript [the Traux transcript] is very helpful to the plaintiff.

Transcript, June 2, 2014, p. 29.

Now, Your Honor, I knew full well historically, after being involved in litigation for 10 years with Mount Vernon, that Mount Vernon was not cooperating with the other counsel in resolving this case and that the other counsel decided that they had to pay more than they should have paid simply because Mount Vernon wouldn't step up to the plate.   That's the reality.   And they still haven't.

Transcript, June 2, 2014, p. 28.

Because if there's any bad faith here, it's bad faith of the defendant in not stepping up to the plate and providing liability insurance to Silk, LLC, which resulted in the other defendants becoming very disturbed with Mount Vernon and insisting upon confidentiality so that Mount Vernon would not be aware of the terms and circumstances of the agreement, particularly things about the agreement that are now—of course they are now privy to not just the amount Your Honor.

Transcript, June 2, 2014, p. 35.

The court has read the confidentiality agreement many times and failed to perceive any terms that affect Mount Vernon such that defense counsel would want to deny Mount Vernon knowledge of them.   It was no secret what plaintiffs sued each of the other defendants for;  the files were public records.   The court saw nothing of value for which the defendants would want to withhold from Mount Vernon.

Plaintiffs contend the confidentiality provision was put in the Confidential Settlement Agreement at the insistence of the attorneys representing the various defendant parties to the Confidential Settlement Agreement and plaintiffs had not sought it.   According to plaintiffs, these attorneys were sore at Mount Vernon because their clients had to pay more because Mount Vernon did not step up to the plate.   Plaintiffs emphasize they did not seek the confidentiality.

These attorneys, according to plaintiffs, were clear that they did not want Mount Vernon to know the contents of the Confidential Settlement Agreement.

Something about this does not ring true.   First, there were only four parties who paid.   The court realizes that all of the parties did incur expenses to defend the suit(s) brought by plaintiffs.   And, this suggests that had Mount Vernon stepped up to the plate, somehow the Confidential Settlement Agreement defendants would not have had to pay as much as they have.   Or, does it mean that plaintiffs would not have even sued the Confidential Settlement Agreement defendants.   Neither reflects well on plaintiffs' counsel.

The attorneys, Attorneys Bucci, Boyce, Eaton, McDonald, Roberts, Cristofaro, are experienced defense lawyers;  a significant part of their law practices is devoted to insurance defendants.   Thus, it's hard to imagine these attorneys were miffed at Mount Vernon because it didn't accede to plaintiffs' claims.   They had to be used to standing up for insurance companies and resisting pressure from attorneys representing plaintiffs, attorneys representing co-defendants, and even judges conducting pre-trial sessions where settlement was seriously discussed.   And, if they are so upset as to want to retaliate against insurers refusing to pay anything and or the amount of a plaintiffs' demands, such an attitude is probably life shortening and they're in the wrong profession.   And, further, the court has difficulty believing these attorneys would have agreed to frustrate the discovery process in this case in retaliation.

On May 14, 2014, plaintiffs moved to seal the copy of the Confidential Settlement Agreement and Specified Releases which counsel for Mount Vernon had attached to Mount Vernon's Reply to Plaintiffs' Objection to Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order, May 2, 2014. [193.]  See Plaintiffs' Motion to Seal, May 14, 2014. [195.]  It was heard on Monday, June 2, 2014.   The details of that Motion and the court's denial of same are set forth in the court's Memorandum of Decision Motion to Seal Document, June 4, 2014. [195.05.] The court denied the Motion to Seal. During the hearing thereon, the court did not say anything which could be interpreted as a granting of the motion.   Actually, just before the hearing concluded, the court asked counsel for plaintiffs if he was finished on the motion to seal.   Counsel responded:  “Yes, Your Honor.   Again, I move for continuance.”   The court then stated:  “All right.   I'm going to rule on the motion to seal as soon as I have a chance to read the transcript today.”   Transcript, June 2, 2014, p. 37.

The court notes that the plaintiffs' June 4, 2004 Motion to Seal [195], the accompanying Memorandum of Law [196], and plaintiffs' argument and presentation on July 2, 2014 were consistent.   Transcript, June 2, 2014.   None had a word which dealt with the legal requirements for sealing;  the findings required of the court, etc.   Plaintiff's efforts therein were addressed to pending motions to set aside the judgment of nonsuit.

The next day, Tuesday, June 3, 2014, plaintiffs filed a Second Motion to Seal [202] with an accompanying Memorandum. [203.]  The Second Motion to Seal recites:

As per the Court's ruling on June 2, 2014, granting the Plaintiffs' Motion to Seal Document (# 195 & 196), filed May 15, 2014, the Court has found that the document titled Confidential Settlement Agreement and Specified Releases, attached as Exhibit A to the Defendant's motions, is a confidential document and should be sealed with the Court.   Therefore, the attachment of this document to the Defendant's motions is in direct conflict with the Court's ruling.

Second Motion to Seal, June 3, 2014, pp. 1–2. [202.]

The assertions about the court's action are outright false.   The court did not grant “Plaintiffs' Motion to Seal Document (# 195 & 196), filed May 15, 2014.”   Nor did the court find or hold that the “Confidential Settlement Agreement and Specified Releases, attached as Exhibit A to the Defendant's motions, is a confidential document and should be sealed with the Court.”

Counsel's making these statements to the court is bizarre and inexplicable.   Besides being false, this behavior raises questions about counsel's fitness to practice law.

Attempted Approval of Counsel Charade

On May 14, 2014, plaintiffs filed a Memorandum in Support of Motion to Seal, May 14, 2014. [196.]  In same, plaintiffs' counsel informs that on April 21, 2014, he wrote to counsel for all of the non-plaintiff signatories of the Confidential Settlement, etc., informing counsel of his (counsel for plaintiffs) intent to disclose the Traux material to Mount Vernon within ten days absent any objection.  “In response to this letter Plaintiffs' counsel did receive multiple responses expressing concern with Plaintiff's disclosure of such documents absent a subpoena.  (Counsel Response Letters, attached as Exhibit B ).”  (Emphasis in original.)   Counsel for plaintiffs' April 21, 2014 letter to all counsel and Counsel Response Letters were attached to Plaintiff's May 14, 2014 Memorandum [196] as Exhibits A and B.

Counsel for plaintiffs' letter (Exhibit A) shows it was sent to seven attorneys including Mount Vernon's counsel, Attorney Andriola.   The other six represented signatories/parties to the Confidential Settlement Agreement.   Exhibit B, Counsel Response Letters, consisted of two letters.   The text or bodies of the three letters are set forth below.

The body of Exhibit A, counsel for plaintiffs' letter to the counsel for the other signatories of the Confidential Agreement, etc., is set forth here:

Dear ․:

Atty. Andriola, counsel for Mount Vernon Fire Insurance Company in the above captioned case, has requested copies of the deposition of Judith Traux taken June 27, 2002 as well as Exhibit 1 (ACCORD commercial insurance application dated February 10, 2000) and Exhibit 2 (policy application, dated April 21, 2000) from the deposition of Judith Traux, taken February 12, 2009.

The terms of our Confidential Settlement Agreement and Specified Releases (attached with redactions) from the Estate of William P. Ridgaway, Jr. v. Silk, is vague regarding, the confidentiality of the requested documents.   Notably, paragraph 18 reads:

It is a material condition of this Agreement that, except as required by law or court order, the Parties shall not disclose to any person or entity, and shall take all reasonable measure to prevent the disclosure of, the existence, terms, and/or subject matter of this Agreement;  provided, however, that such terms may be disclosed to accountants for tax purposes, and may be disclosed by the Parties to their indemnitors, insurers and/or reinsurers.

Therefore this letter is intended to serve as notice of our intent to disclose the above referenced documents [the Traux materials] within ten days absent any objection.

Exhibit A to Memorandum in Support of Motion to Seal, May 14, 2014. [196.]

In the second paragraph of that letter, counsel for plaintiffs opines:

The “Confidential Settlement Agreement and Specified Releases ․ is vague regarding, the confidentiality of the Traux materials.]”   Paragraph 18 is then set forth verbatim.

Plaintiffs' counsel does not attribute any lack of clarity to Section 18's “except as required by law or court order.”   It is not vague by any stretch.   He agreed to its language and terms when he allowed his clients (plaintiffs) to sign it in November 2011.

Counsel for plaintiffs' April 21, 2014 letter surely was given much thought and carefully composed.   Much thought must have been given as to what should be included and what might be omitted.   Not surprisingly, counsel took the devious route.   No mention was made of the fact that the court had ordered the confidentiality agreement be filed by March 7, 2014 or the backdrop for the court's issuing such an order.

The bodies of the two response letters are set forth below;  the first is from Attorney Elizabeth M. Cristfaro dated April 25, 2014;  the second from Lori A. Eaton dated April 25, 2014.

Letter from Attorney Cristofaro to Attorney Reardon dated April 25, 2014:

In response to your April 21, 2014 dated correspondence regarding the above entitled matter, please be advised that I have no objection to your disclosure of the materials identified in your correspondence [i.e., copies of the deposition of Judith Traux taken June 27, 2002 as well as Exhibit 1 (ACCORD commercial insurance application, dated February 10, 2000) and Exhibit 2 (policy application, dated April 21, 2000) for the deposition of Judith Traux, taken February 12, 2009] under the following conditions:

1.  That Attorney Andriola, counsel for Mount Vernon Fire Insurance Company, serves upon you a valid and lawful Subpoena Duces Tecum specifically identifying the materials listed in your April 21, 2014 correspondence;  and

2.  That none of the materials identified in your April 21, 2014 correspondence disclose the existence, terms and/or subject matter of the CONFIDENTIAL SETTLEMENT AGREEMENT AND SPECIFIED RELEASES executed by the parties in 2011.

Should you have any questions or wish to discuss this matter further, please do not hesitate to contact me.

Exhibit B to Memorandum in Support of Motion to Seal, May 14, 2014. [196.]

The paragraph numbered 1 just says plaintiffs should subpoena the documents;  a subpoena being a court order.   As to the paragraph numbered 2, it would have been unnecessary had plaintiff's counsel leveled with the defendants' lawyers and told them the court had already ordered plaintiffs to file the confidentiality agreement in response to plaintiffs' filing an Objection based on the confidentiality agreement.   As is discussed several paragraphs below in this Memorandum, any confidentiality was blown away when on April 8, 2014 plaintiffs' counsel sent the confidentiality agreement to Attorney Andreoli.

Letter from Attorney Lori A. Eaton to Attorney Reardon dated April 30, 2014:

In response to your correspondence of April 21, 2014, addressed to Christopher Weldon, please be advised we join the comments by Elizabeth Cristofaro of Goldberg Segala, LLP in her April 25, 2014, correspondence insomuch as we do not consent to the disclosure of the existence, terms or subject matter of the Confidential Statement Agreement and Specified Release attached to your correspondence.   As it stands now, it appears the confidential agreement was already disclosed to counsel for Mount Vernon, Joseph Andriola, and he is copied on the April 21, 2014 correspondence with attachment of the settlement agreement although the amount of contributions appears to have been redacted.   Please advise.

With respect to the documents listed in your April 21, 2014 correspondence being disclosed, we do not object if a written discovery demand has been made and approved by the court and/or if a subpoena was issued identifying the records to be disclosed in the above-captioned matter.   However, I am requesting you kindly forward same to my attention for our file before proceeding with disclosures.   Please contact me if you need to discuss this matter further.

Exhibit B to Memorandum in Support of Motion to Seal, May 14, 2014. [196.]

Attorney Eaton stated that she, and presumably her client, “do not object if a written discovery demand has been made and approved by the court.”   Of course, plaintiffs counsel had not told that Mount Vernon had filed a “written discovery demand” which was not “approved by the court” because of plaintiffs' Objection in which plaintiff opposed the written discovery demand saying production of the documents because such production was a violation of the confidentiality agreement.

Rather than being objections, the letters of Attorneys Cristofaro and Eaton show that they (Cristofaro and Eaton) did not buy plaintiffs' counsel's claim that disclosure of the Traux materials would be a violation of the confidential agreement interpretation.

It should be kept in mind that the seven attorneys to whom counsel for plaintiff wrote (Exhibit A) represented defendants in various suits plaintiffs had brought for the wrongful death of the Ridgaway.   Thus, these counsel were adversaries of plaintiffs and plaintiffs' counsel.

A lawyer is obliged to act truthfully in representing others, and that includes being totally candid with adversaries.   See Rule 4.1 Truthfulness in Statements to Others.   Rules of Professional Conduct.   The Commentary to Rule 4.1 contains the following:

Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

The three letters quoted above, particularly counsel for plaintiffs' April 21, 2014 letter, show plaintiffs' counsel tried to enlist the six attorneys into his secret cabal whose purpose was to get approval, corroboration, and/or justification for his, plaintiffs,' not filing the Confidential Settlement Agreement, etc., with the court.   Plaintiffs' counsel did not have the grace to tell the lawyers he was recruiting that the court had already ordered plaintiffs to file it with the court.   Nor did he tell them the court ordered it filed because he, contrary to the terms of the Confidential Settlement Agreement, etc., had disclosed its existence to the court in his Objection to Mount Vernon's motion to have plaintiffs produce the Traux materials to Mount Vernon.   And, of course, plaintiffs' counsel did not tell the unsuspecting would-be recruits he had misrepresented to the court in saying that the Confidential Settlement Agreement, etc., by its terms forbade disclosure of the Traux materials.   The court was not informed that the agreement had a “court order exception” permitting disclosure.   Plaintiffs' counsel well knew that had he acted with even a little bit of honesty and/or candor, none of the six solicited attorneys would act in cahoots with him.   None did anyways.

Unbeknown to the court at the time, on April 8, 2014, plaintiffs' counsel had sent Mount Vernon's counsel a partial ² copy of the relied upon confidentiality agreement.   Regarding confidentiality, the text included “except as required by law or court order, the Parties shall not disclose ․”

The confidentiality agreement explicitly provides in part:

[E]xcept as required by law or court order, the Parties shall not disclose to any person or entity ․ the existence, terms and/or subject of this Agreement.

The court did not know of that provision of the confidentiality agreement until at least May 2, 2014, when defendant, not plaintiff, filed it with the court.

Plaintiffs did not file the confidentiality agreement as ordered and persisted in not doing so.   The court, therefore, entered a nonsuit for plaintiffs' not filing the confidentiality agreement as ordered.   The court has before it plaintiffs' various motions seeking a court order vacating or otherwise nullifying the judgment of nonsuit.

The confidential settlement agreement has been closely guarded by plaintiffs.   In fact contemptuously so.   They would not file it as directed by the court.

But on April August 8, 2014, plaintiffs sent a copy to Mount Vernon's lawyer although the court's order was “to file” it which meant with the clerk of this Court.   Mount Vernon then filed a copy of what plaintiffs had sent.   The copy filed had 15 pages of text and five pages for signatures.

When plaintiff's counsel sent Attorney Andriola the Confidential Settlement Agreement, etc., on April August 8, 2014, it ended the last vestige for any claim of confidentiality by virtue of the Confidential Settlement Agreement, etc., itself.

In Rosado v. Bridgeport Roman Catholic Diocese Corp., 292 Conn. 1 (2009), two cases are cited and briefly discussed.   They are Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414 (3d Cir.1991);  and Permian Corp. v. United States, 665 F.2d 1214 (D.C.Cir.1981).   In short, they hold that once a party discloses material it claimed is privileged or confidential to an adversary, the privileged or confidential status vanishes.   In Rosado, our Supreme Court embraced these holdings.  292 Conn. at 58–61.

This court has stated the confidentiality plaintiffs claim by virtue of the Confidential Settlement Agreement, etc., only vitality is among its parties.   It never had any validity in this case;  plaintiffs have never cited any law that it had such vitality.   Even without the “except by law or court order” exception it had no vitality in this case.   But, as of April 8, 2014, by plaintiffs' counsel's action, confidentiality was blown to smithereens.   Recall, that counsel's cover letter for the Confidential Settlement Agreement, etc., did not mention confidentiality or containing any restrictions on its use.   Query?  Did plaintiffs' counsel on April 8, 2014 know the law was/is as set forth in the preceding paragraph?

Note again, Rosado is 2009 decision.   Plaintiff's counsel is charged with knowledge of it.³  It was the law before this case was started in 2011 and has been the law during the entire time it has been pending.

Nevertheless, the plaintiffs have not thrown in the towel on any part of their sham confidentiality claim.   As a practical matter, that meant the jig was up.

As of June 5, 2014, plaintiffs still had not filed the confidentiality agreement.   The court entered an order directing plaintiffs to do so by June 12, 2014.   Plaintiffs filed a version of the Agreement which again contained 15 pages of text.   There were pages numbered pages 16–20 for signatures, and unnumbered page for a signature, pages numbered 22 and 23 for signatures, an unnumbered illegible page, another page numbered 22 the signature on which was different from that on the earlier page 22, an unnumbered illegible page, and pages numbered 24–26 for signatures. [208.]

Both parties have used the term, “discovery order.”   To avoid confusion that term's meaning should be clarified.   A discovery order is an order wherein the court orders a party to answer interrogatories, produce documents to an opposing party, etc.   Thus, Mount Vernon's September 26, 2013 Motion for Order [179] sought a discovery order.   Mount Vernon moved the court to order plaintiffs to produce the Traux materials to Mount Vernon.   Failure to comply with a discovery order is governed by Practice Book § 13–14.

Section 13–14 reads in relevant part:

(a) If any party ․ has failed to respond to requests for production ․ the judicial authority may, on motion, make such order as the ends of justice require.

(b) Such orders may include the following:

(1) The entry of a nonsuit or default against the party failing to comply ․

Practice Book § 13–14.

The court did not and has not acted on Mount Vernon's September 26, 2013 Motion for Order. [179.]

Plaintiffs responded to Mount Vernon's September 26, 2013 Motion for Order. [179.]  Plaintiffs claimed and continue to claim:

Production of the documents requested [the Traux materials] would cause the Plaintiffs to violate the confidentiality agreement entered into with other parties in separate lawsuits.

See plaintiffs' Objection to Motion for Order and Cross Motion for Protective Order (# 179.00), October 3, 2013, p. 3. [180.]

The court eventually ordered:

Plaintiff shall file a copy of the confidentiality agreement upon which plaintiff relies by March 7, 2014.   Dollar amounts may be redacted from the copy filed.

Order, February 26, 2014. [180.01.]

Plaintiffs refused to file the confidentiality agreement.

Mount Vernon moved for a nonsuit on March 14, 2014, when plaintiffs had not filed the confidentiality agreement as of that date (March 14, 2014).   See Motion for Entry of Non–Suit and Sanctions for Failing to Comply with Discovery Order, March 14, 2014. [190.]

On April 28, 2014, plaintiffs still had not filed the confidentiality agreement.

On April 28, 2014, the court granted the nonsuit.   A judgment of nonsuit followed contemporaneously.   Order, April 28, 2014. [190.01.]

Section 17–19 of the Practice Book provides:

If a party fails to comply with an order of a judicial authority ․ the party may be nonsuited ․ by the judicial authority.

Practice Book § 13–14.

The court's granting the nonsuit is an inherent power the trial court has “to compel the observance of its rules.”  (Internal quotation marks omitted.)   Dubois v. William W. Backus Hospital, 92 Conn.App. 743, 748 (2005), cert. denied, 278 Conn. 907 (2006).

Thereafter, when plaintiffs had not filed the confidentiality agreement, the court ordered a nonsuit and a judgment of nonsuit entered.   Order, April 28, 2014. [190.01.]

The nonsuit was not entered for violation of a “discovery order” as that term is commonly used in the case law.   The court has not made a “discovery order.”

The nonsuit was entered for plaintiffs' contemptuous refusal to comply with the court's order to file the confidentiality agreement which confidentiality agreement plaintiffs interjected as part of their efforts to thwart Mount Vernon's legitimate request for the Traux materials.

As of June 5, 2014, plaintiffs had not filed a copy of the Confidential Settlement Agreement, etc.   The court ordered plaintiffs to file same by June 12, 2014.   Order, June 5, 2014. [204.]

Plaintiffs filed as ordered on June 11, 2014.   The copy filed with the clerk was not redacted.   It was a revelation.   It showed the plaintiffs were paid $325,000.   Two defendants had paid $25,000.   Two others had paid $137,500 each.   The dots were coming together.

According to plaintiffs, Mount Vernon's policy is for $1 million.   That $1 million coverage is over and above the $100,000 of First Specialty's “underlying” insurance.   The maximum amount plaintiffs could recover is $1 million.

Payments made to plaintiffs for the wrongful death diminish Mount Vernon's liability by the amount of those payments.   It is known that plaintiffs have been paid and received $500,000 for the wrongful death.   But $100,000 of the $500,000 was paid by the underlying First Specialty policy.   Mount Vernon's policy provided $1 million over the underlying $100,000.   Therefore, plaintiffs have been paid and received $400,000 which lessens Mount Vernon's maximum liability to $600,000.

Plaintiffs received $325,000 from the parties to the confidentiality agreement.

Ironic as it may be, the reality is that every one of the signers of the confidentiality agreement, knew or should have known, that every dollar paid to plaintiffs was a gift to Mount Vernon.   Plaintiffs signed the confidentiality agreement.

There was a $325,000 incentive for plaintiffs to prevent Mount Vernon from knowing the contents of the Confidential Settlement Agreement, etc.

Plaintiffs created a giant smokescreen so that Mount Vernon and the court would not learn of the $325,000 paid to and received by plaintiffs.

The court has not been hesitant in blaming plaintiffs for their cover-up smokescreen.   The court, perhaps, caused some of the problem.   Previously herein, the court has focused on the first sentence of its February 26, 2014 order.   But there's a second sentence:  “Dollar amounts may be redacted from the copy filed.”   Perhaps, if that sentence had not been part of the Order, plaintiffs would not have embarked on their cover-up, or stopped pursuing it earlier.   Only plaintiffs and/or their counsel know.   But, the court's inclusion of the second sentence does not exonerate plaintiffs or their counsel.

PROPORTIONALITY

It must be kept in mind, that the violation for which the judgment of nonsuit entered was plaintiffs' failure to file the Confidential Settlement Agreement, etc., known then as the “confidentiality agreement,” as ordered by the court on February 26, 2014.

As of April 28, 2014, plaintiffs had not filed the confidentiality agreement.   Mount Vernon had moved for a nonsuit on March 14, 2014.   On April 28, 2014, the court granted the motion, a nonsuit entered and simultaneously a judgment of nonsuit.

The issue at hand is whether the sanction imposed, the judgment of nonsuit, is proportional to the violation.

In determining proportionality, there are three prongs.   They are:  “First, whether the order to be complied with must be reasonably clear ․ Second, the record must establish that the order was in fact violated ․ Third, the sanction imposed must be proportional to the violation.”  (Internal quotation marks omitted.)  Yeager v. Alvarez, 302 Conn. 772, 784–85 (2011).

The court finds, with a total of absence of humility, that the Order in question was the essence of clarity.   Despite the plaintiffs' diddlings with it, it was clear to all, including plaintiffs' counsel.   But even if the Order were unclear, which the court doesn't buy, the Supreme court has said:

First, the order to be complied with must be reasonably clear.   In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning.

Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 17 (2001).

Based on plaintiffs' counsels' repetitious statements and filings in this case in which counsel tries to justify their not filing the Confidential Settlement Agreement, etc., the court, without hesitation, finds plaintiffs' counsel understood the trial court's intended meaning.   For example, counsel has said under oath—

I did not provide a copy of the document, “Confidential Settlement” to the Court in response to the Court's Order of February 26, 2014 (# 180.01) as I believed and continue to believe that the production of such document to the court, and therefore into the public record, would be in breach of my agreement therein to keep such document confidential, subjecting my clients and my law firm to liability.

Affidavit of Robert I. Reardon, Jr., May 14, 2014, ¶ 5;  Exhibit A to Motion to Open Judgment Upon Nonsuit, May 14, 2014. [198.]

This, and many similar iterations and reiterations in counsel's own words appear in many of the 20 filings plaintiffs' counsel have made regarding their efforts to set aside the judgment of nonsuit.   Plaintiffs' counsel understood the meaning of the court's order.

The court, as it did on April 28, 2014, finds that “the court's Order was in fact violated.”   That is corroborated by the docket and the entire file.

Then, there is the third prong.   The court recognized that a judgment of nonsuit is, or may be, the ultimate sanction.

Plaintiffs have not proposed or suggested any alternative sanction although they have had plenty of time and opportunity to do so.   Plaintiffs at one point did suggest a monetary sanction being imposed for the extra cost incurred by Mount Vernon in preparing and prosecuting a motion.   This would have been perhaps a few thousand dollars.   Such an amount is chump change to plaintiffs' counsel.   It is wholly unrealistic.

The court has considered an alternative sanction, removing plaintiffs' counsel.   However, there is nothing in the record which informs the court whether the plaintiffs themselves had any role in the violative conduct.   A teaching of D'Acanio v. Toyota Industries Corp., 309 Conn. 663 (2013), is that a court should be loathe to sanction a party absent a finding that that party was complicit in the violation.   It was important to Supreme Court that “there was no finding that the plaintiffs intentionally engaged in any allegedly wrongful conduct ․” Id., 681.   Here, this court could not and does not make a finding that the plaintiffs intentionally engaged in any allegedly wrongful conduct.   Nor could the court find that plaintiffs had not.   The record to date is sparse on the question.   The record to date does not have any information on what the plaintiffs know about the status of this matter, judgment of nonsuit, how it effects plaintiffs, etc.   The court knows the plaintiffs know they have received $325,000 from the confidentiality defendants.   And the plaintiffs signed the confidentiality agreement.   In short, the court is in the dark about what the plaintiffs knew and understood.   Furthermore, the cover-up smokescreen conduct appears to have occurred after plaintiffs signed the confidentiality agreement in March 2011.

At the June 2, 2014 hearing before this court, while discussing the turnover of the Traux materials to Mount Vernon, plaintiffs' counsel stated:

Frankly, Your Honor, I could care less, because the particular transcript is very helpful to the plaintiff.

Transcript, June 2, 2014, p. 29.

This is troubling.   The “particular transcript” was the Traux transcript.   It was taken years ago.   Was a plan to keep the Traux materials from Mount Vernon hatched when the opportunity arose in the summer of 2013, when counsel for Mount Vernon revealed the Traux materials were missing from their files?   Mount Vernon had a right to the Traux materials whether or not it was or was not favorable to Mount Vernon.   A party has a right to discover material which may be adverse to his case.

The Rules of Professional Conduct require a lawyer to communicate with clients, to reasonably consult with them, and explain to them to such extent that the clients may make informed decisions regarding their matters.   Rule 1.4.   Communication.  The court does not know anything about the extent of any communications between plaintiffs and their counsel.   Presumably, plaintiffs' counsel kept plaintiffs informed of what was going on in the case so that plaintiffs could make an informed decision.   Certainly, there was consultation between plaintiffs' counsel and plaintiffs at the time plaintiffs agreed to the settlements totaling $325,000.   This was by March 2011.   Surely counsel told plaintiffs that the $325,000 would lessen their recovery against Mount Vernon by that amount.   Were plaintiffs ever told there was a way to keep that information away from Mount Vernon?   Told of the cover-up smokescreen?   If so, and plaintiffs are deemed to have consented, plaintiffs are culpable.

That means the court may have to attribute the violative conduct here to not only plaintiffs' counsel but also plaintiffs.   If so, that militates for removal.

There are valid reasons for not removing counsel.   This is a complex matter involving at least six state cases many of which have been pending for nine or 10 years.   All that and the precursor to this case ended in early in 2011, roughly contemporaneous with the finalization of the Confidential Settlement Agreement, etc.   This action commenced shortly thereafter.

Getting a new lawyer for plaintiffs would be difficult and perhaps not possible.   Undertaking this litigation with all its complexities would take a lawyer a considerable amount of time even to decide whether this case was worth the time and effort.   And, the plaintiffs' opportunity for a verdict sufficient to warrant a lawyer capable of such a complex case will be very difficult.   The time and effort needed even to know whether to get involved will be challenging.   The maximum recovery has been significantly reduced lessening the incentive for taking the case.   The complexity may be overwhelming.

And, then there is Mount Vernon.   It has been burdened with these multiple cases regarding this loss since at least late 2002.   Mount Vernon has been vilified by plaintiffs' counsel throughout.   Mount Vernon was the victim of the fraudulent conduct undertaken to prevent disclosure of the $325,000 payments.   Mount Vernon has an interest in having an end to the Ridgaway litigation.   Right now, Mount Vernon is ahead, with the judgment of nonsuit, plaintiffs' case against Mount Vernon is essentially over—over depending upon whether the judgment of nonsuit is set aside.   The court recognizes the Counterclaim is still alive.   But, even discussing whether removal of counsel is appropriate, rather than a judgment of nonsuit, is not in Mount Vernon's interests.   Mount Vernon is a victim of plaintiffs' counsels' errant conduct.

Then, there is the court's interest which necessarily includes all other litigants and potential litigants.   It is well aware that the preferred course is allowing parties their day in court.   But, on the flip side, the court must enforce its authority and run the court according to its established rules, etc., and not let obstreperous counsel control the court.

Weighing the above, the court believes judgment of nonsuit is the sanction most appropriate and proportionate to the offending conduct.   The other abundant, improper conduct of plaintiff's counsel, which must be attributed to plaintiffs also, does not militate towards any sanction other than the judgment of nonsuit.

Violations going to the very core of the judicial function have been rampant.   Some have not been discussed or offered as support for the nonsuit.   But, none of the improper conduct revealed to the court in the course of the proceedings to set aside the nonsuit induce or convince the court that it should turn a blind eye to what has gone on and set aside the nonsuit.

If plaintiffs themselves were not complicit in the offending conduct, i.e., knew of and understood the ramifications of such conduct, plaintiffs could claim any losses they suffered herein by virtue of their counsel's conduct.   Their claims would have particular strength against plaintiffs' counsel.   Plaintiffs' claims have been well touted by their counsel who would be hard-pressed to deny the merits of plaintiffs' case liability-wise, and damage-wise as the value of the decedent's life surely hasn't been minimized in counsels' court filings in the numerous cases.   Plaintiffs' counsel is not an impecunious lot.   Plaintiffs' counsel should do right by plaintiffs and pay them for any losses sustained by reason of his conduct.

There is the scary aspect to this case.   What if plaintiffs had been successful with their Objection to Mount Vernon's Motion for Order.   Fortunately, and commendably, Attorney Andriola was persistent in bringing about the exposure of plaintiffs' perfidy.   But, what if he had been unsuccessful and the court had taken plaintiffs at their word, trusted counsel, and believed what was represented in plaintiffs' Objection.   Fortunately, the “what ifs” have gone away.   But they do leave a residue called “what if” haunts.

Throughout this Memorandum, the court has made frequent reference to the plaintiffs.   Sometimes the court has meant the plaintiffs, the party plaintiffs.   Other times it has meant the plaintiffs' counsel.

The court does not know what role, if any, the plaintiffs as parties have played in the events recounted herein.   The court does not know if the plaintiffs Ridgaway and Grant even know that a judgment of nonsuit was entered against them in late April 2014.   Therefore, the misdeeds told herein are attributed solely to their attorneys.   Unfortunately, even though plaintiffs Ridgaway and Grant may not have done or even known of misconduct of their attorneys, by law they may be held responsible for that errant conduct.   Plaintiffs Ridgaway and Grant suffer the consequences of same.

As to the law firm representing plaintiffs, the court does know some of the attorneys involved in the misconduct in this case.   However, it is unable to state which attorneys were not involved.   If an attorney in the firm has not signed any of the 20 filings made on behalf of plaintiffs, the court presumes the “un-signing” attorneys were not involved in the conduct discussed herein.

The Code of Judicial Conduct contains the following Rule:

Rule 2.15.  Responding to Judicial and Lawyer Misconduct:

* * *

(b) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall take appropriate action including informing the appropriate authority.

* * *

(d) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.

In view of the contents of this Memorandum of Decision, the Clerk will forward a copy to the Chief Disciplinary Counsel.

In bemoaning the court's granting the nonsuit, plaintiffs' counsel likened his conduct as being a “technicality.”   That doesn't wash.   Plaintiffs' not filing the confidentiality agreement was deliberate, calculated, willful and contemptuous flouting of the court's order.   Nor, was it spontaneous—it went on for months.

Black belts in deceit, contumacy,⁴ obfuscation, obstructionism, and recalcitrance hardly justify or merit the set aside of the judgment of nonsuit.

The Motions for Setting Aside the Judgment of Nonsuit are denied.

Parker, J.T.R.

FOOTNOTES

FN1. August 23, 2013, date of letter from Attorney Reardon to Attorney Andriola to October 3, 2013, date of plaintiffs' Objection, etc., to Motion for Order. [180.].  FN1. August 23, 2013, date of letter from Attorney Reardon to Attorney Andriola to October 3, 2013, date of plaintiffs' Objection, etc., to Motion for Order. [180.]

FN2. The copy sent to Mount Vernon's counsel contained the complete text, but not all of the signature pages..  FN2. The copy sent to Mount Vernon's counsel contained the complete text, but not all of the signature pages.

FN3. Plaintiffs' counsel may well have read Rosado;  it held that “judicial documents are those filed with the court upon which the court reasonably could rely in the performance of its adjudicatory function, including discovery related motions and their associated exhibits.”   Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48 (2009).   Plaintiffs' counsel knew, according to plaintiff's counsel, that the filing of the confidential agreement would make it a public document (a judicial document) subject to disclosure.  Rosado was the primary case on that point.   Thus, it seems likely plaintiff's counsel had read Rosado.   In fairness to plaintiff's counsel, Rosado was a mere 85 pages..  FN3. Plaintiffs' counsel may well have read Rosado;  it held that “judicial documents are those filed with the court upon which the court reasonably could rely in the performance of its adjudicatory function, including discovery related motions and their associated exhibits.”   Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48 (2009).   Plaintiffs' counsel knew, according to plaintiff's counsel, that the filing of the confidential agreement would make it a public document (a judicial document) subject to disclosure.  Rosado was the primary case on that point.   Thus, it seems likely plaintiff's counsel had read Rosado.   In fairness to plaintiff's counsel, Rosado was a mere 85 pages.

FN4. “Contempt of court;  the refusal of a person to follow the court's order or direction.”—Blacks Law Dictionary, 10th Ed.*At the end of the Memorandum of Decision (below the undersigned's signature) dated and filed on December 16, 2014, the following note appeared:NOTE:  Due to time constraints, this Memorandum of Decision is filed at this time.   The court has not had the time for checking it over for accuracy in matters of form, i.e., spelling, grammar, punctuation, line spacing, and checking the accuracy of quotations, etc.   If upon further checking, which will be time-consuming, the court believes a corrected version should be filed, it will do so.It was the intention at that time to correct matters of “form” but not to change anything of “substance.”When preparing this Corrected Memorandum of Decision, the court noted that on pages 50 and 51 of the original December 16, 2014 Memorandum, the date of August 8, 2014 appeared for an event which occurred on April 8, 2014 and which is described or referred to as happening on April 8, 2014.   The August 8, 2014 is incorrect and should have been April 8, 2014.Changing the date using April instead of August, arguably, is more than changing a matter of form.   Therefore in this February 2, 2015 Corrected Memorandum, in order to lessen confusion, the court has changed the text to read;  “April August 8, 2014.”   Because of re-pagination, the changes appear on pages 50 and 51 of this February 2, 2015 Corrected Memorandum of Decision..  FN4. “Contempt of court;  the refusal of a person to follow the court's order or direction.”—Blacks Law Dictionary, 10th Ed.*At the end of the Memorandum of Decision (below the undersigned's signature) dated and filed on December 16, 2014, the following note appeared:NOTE:  Due to time constraints, this Memorandum of Decision is filed at this time.   The court has not had the time for checking it over for accuracy in matters of form, i.e., spelling, grammar, punctuation, line spacing, and checking the accuracy of quotations, etc.   If upon further checking, which will be time-consuming, the court believes a corrected version should be filed, it will do so.It was the intention at that time to correct matters of “form” but not to change anything of “substance.”When preparing this Corrected Memorandum of Decision, the court noted that on pages 50 and 51 of the original December 16, 2014 Memorandum, the date of August 8, 2014 appeared for an event which occurred on April 8, 2014 and which is described or referred to as happening on April 8, 2014.   The August 8, 2014 is incorrect and should have been April 8, 2014.Changing the date using April instead of August, arguably, is more than changing a matter of form.   Therefore in this February 2, 2015 Corrected Memorandum, in order to lessen confusion, the court has changed the text to read;  “April August 8, 2014.”   Because of re-pagination, the changes appear on pages 50 and 51 of this February 2, 2015 Corrected Memorandum of Decision.

Parker, Thomas F., J.T.R.