Higgins v. Karp

687 A.2d 539, 239 Conn. 802, 1997 Conn. LEXIS 10
CourtSupreme Court of Connecticut
DecidedJanuary 28, 1997
Docket15435; 15441
StatusPublished
Cited by27 cases

This text of 687 A.2d 539 (Higgins v. Karp) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. Karp, 687 A.2d 539, 239 Conn. 802, 1997 Conn. LEXIS 10 (Colo. 1997).

Opinion

NORCOTT, J.

The dispositive issue in this appeal is the extent to which the trial court, in ruling on motions to set aside defaults entered against the defendant for failure to plead, may attribute the conduct of the defendant’s insurer to the defendant. The appeal of the defendant Drzislav Coric, the administrator of the estate of Robert Freeman, arises from the April 12, 1993 crash of a Piper aircraft en route from Groton, Connecticut, to Cortland, New York. The plane crashed near Ithaca, New York, on approach to Cortland airport during inclement weather conditions. Three of the five people on board the plane died, including the two pilots, Robert Freeman and Ethel Karp, and a rear seat passenger, Stephanie Freeman, the daughter of Robert Freeman.

On February 19, 1994, the plaintiff, Theresa Higgins, the mother of Stephanie Freeman, brought, both individually and as administratrix of her daughter’s estate, the first action in this appeal against Herbert Karp, the executor of the estate of Ethel Karp, and against Coric.1 Higgins alleged on behalf of her daughter’s estate that the negligence of Ethel Karp and Robert Freeman had [805]*805caused the wrongful death other daughter.2 Higgins also individually alleged a claim of loss of filial consortium against Ethel Karp and Robert Freeman.3 In his answer to Higgins’ complaint, Herbert Karp cross claimed against Coric for contribution and indemnification. On May 17, 1994, Herbert Karp, as executor of the estate of Ethel Karp, brought the second action involved in this appeal against Coric for the wrongful death of his wife. On July 21, 1994, pursuant to General Statutes § 52-192a,4 Higgins, both individually and in her capacity [806]*806as administratrix of her daughter’s estate, filed a $2 million offer of judgment against Coric and another $2 million offer of judgment against Herbert Karp.5 Neither Coric nor Karp accepted Higgins’ offers of judgment. In their respective actions against Coric, both Higgins and Karp moved for, and were granted, defaults for failure to plead.

On May 19, 1995, Coric moved, pursuant to Practice Book § 376,6 to set aside the two defaults entered against him. The trial court denied Coric’s motions and, on June 9, 1996, the court issued a memorandum of decision addressing the reasons for the denial. On June 12, 1996, Coric submitted his notice of defenses pursuant to Practice Book § 367,7 which the trial court subsequently allowed to be stricken.

The two actions against Coric were consolidated, and Higgins’ action against Herbert Karp was [807]*807severed.8 Between August 23 and August 30, 1995, the two actions brought by Higgins and Karp as representatives of the respective estates were tried, as a hearing in damages, to the jury, which returned verdicts against Coric in favor of Higgins and Karp. The jury awarded damages of $3,936,933 to Higgins and $1,405,895 to Kaip. The trial court did not permit Higgins’ individual action against Coric for loss of filial consortium to go to the juiy. On October 6, 1995, the trial court denied Coric’s motions for remittitur and to set aside the verdicts and rendered judgments against Coric on the verdicts in favor of Higgins in her representative capacity and in favor of Karp, and in favor of Coric against Higgins individually. Over Coric’s objections, the trial court, pursuant to § 52-192a, added 12 percent prejudgment interest to Higgins’ damage award from the date of the filing of the complaint on February 19, 1994, to the date of the denial of the motion to set aside the verdict on October 6, 1995. Coric appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).9

On appeal, Coric contends that the trial court abused its discretion when it: (1) denied his motions to set aside the defaults entered against him for failure to plead; (2) sustained Higgins’ objections to his notices of defenses, which notices were filed more than ten days after he had received notice of the entry of judgments of default; (3) denied his request to apply New York law rather than Connecticut law to the case; and (4) awarded Higgins prejudgment interest under § 52-192a. We agree with Coric’s first claim, and because it [808]*808is dispositive of the appeal, we reverse the judgments of the trial court and remand the cases for further proceedings.

Coric argues that the trial court improperly denied his motions to set aside the defaults entered against him for failure to plead. “Pursuant to Practice Book § 376 [a] motion to set aside a default when no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. The determination of whether to set aside [a] default is within the discretion of the trial court. See White’s Appeal, 75 Conn. 314, 318, 53 A. 582 (1902). Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 248-49, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989).” (Internal quotation marks omitted.) Voluntown v. Rytman, 21 Conn. App. 275, 283, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). The scope of review by this court on a claim that the trial court abused its discretion is well settled. “[Ejvery reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Suffield Bank v. Berman, 228 Conn. 766, 783, 639 A.2d 1033 (1994).

With these principles in mind, we turn to the facts and circumstances relevant to Coric’s first claim. On April 21, 1995, attorney Paul Lange entered an appearance on behalf of Coric in lieu of Thomas Wilson, the attorney who had represented Coric up to that point. Lange subsequently filed motions to set aside the defaults that had been entered against Coric. In support of the motions, Lange submitted a memorandum of law and Wilson’s affidavit setting forth the reasons why he had not answered the complaints brought against Coric in a timely fashion. In the affidavit, Wilson stated that [809]*809the death of Robert Freeman and the insolvency of Freeman’s estate had hindered his ability to conduct an investigation of the crash and thereby prevented him from formulating adequate defenses. Wilson further stated that he was hampered by the fact that he had not received the National Transportation Safety Board report until late 1994, and that he believed that AIG Aviation, the insurer of E.G. & H., Inc., should and would provide representation and liability coverage for Coric, which it had failed to do.

On June 5, 1995, a hearing was held before the trial court on Coric’s motions to set aside the defaults. The trial court denied the request to set aside the defaults and issued a memorandum explaining the reasons for its decision.

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Bluebook (online)
687 A.2d 539, 239 Conn. 802, 1997 Conn. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-karp-conn-1997.