Nader v. Altermatt

347 A.2d 89, 166 Conn. 43, 1974 Conn. LEXIS 866

• Court: Supreme Court of Connecticut
• Decided: February 26, 1974
• Status: Published

Opinions

House, C. J.

The plaintiffs have appealed from a judgment of the Superior Court dismissing their appeal from a finding and final order of the defendant insurance commissioner¹ of the state of Connecticut approving an application by the defendant International Telephone and Telegraph Corporation, hereinafter referred to as ITT, to make an exchange offer for the stock of the defendant Hartford Fire Insurance Company, hereinafter referred to as Hartford Fire, pursuant to the then recently enacted provisions of Public Act No. 444 of the 1969 session, now codified as §§ 38-39a through 38-39Ü of the General Statutes.

The court made a limited finding confined to the issue of aggrievement. From this the following facts appear: The plaintiff Ralph Nader is an author, lecturer and advocate of consumer interests, who resides in the District of Columbia, although he is a member of the bar and a domiciliary of Connecticut. The plaintiff Reuben Robertson who is an attorney and associate of the plaintiff Ralph Nader and who likewise resides in the District of Columbia, has been, since prior to December 22, 1969 (the exchange offer application date), the holder of a basic homeowner’s insurance policy issued by the defendant Hartford Fire in the amount of $35,000, for which the premium is approximately $200 per three-year term. The plaintiff Peter Cooper is a resident of Connecticut and has been a shareholder of ITT since prior to December 22, 1969. The plaintiff Margaret Curtin is a resident of Connecticut who, from prior to December 22, 1969, had been a shareholder of the defendant Hartford Fire. On October 11, 1973, the defendant ITT, a Delaware corporation with its principal headquarters in New York .and qualified to do business in Connecticut, and the defendant Hartford Fire, a Connecticut corporation specially chartered to engage in the business of insurance, moved to dismiss the appeal of the plaintiff Margaret Curtin, averring that her justiciable interest in the litigation terminated on April 23, 1973, when she exchanged all her shares of Hartford Fire for ITT stock, pursuant to the exchange offer which is the subject matter of this dispute. This court denied that motion without prejudice to argument at the time of the appeal of the issue raised by the motion. Nader v. Altermatt, 165 Conn. 818, 310 A.2d 74.

On July 23, 1969, the defendants ITT and Hartford Fire sought the approval of the insurance commissioner for a proposed plan and agreement of merger. After a public hearing, however, approval of the plan was denied by the commissioner’s finding and order dated December 13, 1969, wherein the commissioner expressed dissatisfaction with various aspects of the proposal and stated that the proper method for effectuating an affiliation between the companies was by exchange offer pursuant to Public Act No. 444, which had become law upon its passage on June 11, 1969.

On December 22, 1969, ITT submitted an application for a proposed tender offer whereby shares of ITT series N convertible preferred stock would be offered on a stated exchange ratio for common stock of Hartford Fire. Although the financial terms of the plan of the merger and exchange offer were substantially the same, the exchange offer proposal gave each Hartford Fire shareholder the unrestricted option to accept or reject the ITT stock, whereas, under the earlier proposed plan of merger, dissenting shareholders would have been left to their statutory rights of appraisal. Furthermore, certain executive stock options, which the commissioner had previously found objectionable, had been voluntarily relinquished by the corporate officers involved. Approximately 99 percent of the common stock of Hartford Fire was tendered to ITT under this exchange offer.

ITT’s application for the acquisition of a domestic insurance company was the first to be filed under the new law,² which required an information statement to be filed with the commissioner, sent to the target insurance company and disseminated by the insurance company to its stockholders within thirty days of its receipt by the target company and upon approval by the commissioner.

The commissioner authorized the dissemination of the tender offer statement, which included ten categories of information. The statement and a notice of public hearing were mailed on January 18, 1970, to each Hartford Fire shareholder of record as of December 31, 1969. Notices of the public hearing were published with the requisite frequency in the Wall Street Journal, the New York Times, the Hartford Courant and the Hartford Times.

At the public hearings held by the commissioner between March 10 .and March 12, 1970, ITT presented twenty-six exhibits and the testimony of fifteen witnesses including executives of ITT and Hartford Fire, executives of ITT subsidiaries and independent financial and insurance analysts. Although interested persons and members of the public were afforded the opportunity to make statements, to present evidence including testimony, and to examine and cross-examine witnesses, none of the plaintiffs appeared or otherwise participated in the public hearings.

The plaintiffs’ brief discloses that after the conclusion of the public hearings, Nader met privately with the insurance commissioner and subsequently submitted statements, information and papers in the nature of a brief in opposition to the ITT application.

The commissioner issued a finding and final order on May 23, 1970, which found that ITT’s application satisfied each of the five substantive criteria required under the statute.³ Nader and Robertson filed a petition for a rehearing which was denied by the commissioner on May 28,1970.

The plaintiffs sought a review de novo in the Superior Court pursuant to § 38-39k of the General Statutes,⁴ which permits an appeal and judicial review to “[a]ny person aggrieved by any regulation, order or other action of the commissioner” and further provides: “The court shall conduct its review without a jury and by trial de novo, except if all parties so stipulate, the review shall be confined to the record.” The parties refused to stipulate and the court proceeded with a hearing at the conclusion of which it rendered judgment dismissing the appeal. On the appeal to this court from that judgment, the trial court filed a limited finding confined to the issue of aggrievement.

The decisive issue for our consideration on this appeal is whether the trial court was in error in concluding that the plaintiffs had failed to prove that they were aggrieved persons within the intendment of the provisions of § 38-39k (a) of the General Statutes and, accordingly, lacked standing to appeal from the May 23, 1970, finding and final order of the insurance commissioner. We conclude that the court was not in error.

The fundamental test by which the status of aggrievement for purposes of qualifying to take an appeal from an administrative order or regulation is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been/specially and injuriously affected by the decision. New Haven v. Public Utilities Commission, 165 Conn. 687, 700, 345 A.2d 563; Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396; Johnson v. Zoning Board of Appeals, 156 Conn. 622, 623, 238 A.2d 413; Hughes v. Town Planning & Zoning Commision, 156 Conn. 505, 507-508, 242 A.2d 705; Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 425-26, 232 A.2d 330; I. R. Stick Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545; Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 660, 211 A.2d 687; Tucker v. Zoning Board of Appeals, 151 Conn. 510, 514, 199 A.2d 685; Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832; see 2 Cooper, State Administrative Law, pp. 538-41.

The plaintiffs contend that their standing to appeal “must be judged by the relevant statutory scheme” and claim in their brief that they “fall well within the class of persons intended to be protected by the statutory scheme.” In support of their assertion, they rely upon numerous federal decisions that we find inapposite to the disposition of this issue under § 38-39k (a) of the General Statutes, which expressly limited the right to obtain judicial review by appeal to “any person aggrieved.” Even under federal standards upon which the plaintiffs rely, to obtain judicial review of the action of a federal agency a plaintiff must demonstrate an “injury in fact,” economic or otherwise, to acquire standing to sue.⁵ Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-54, 90 S. Ct. 827, 25 L. Ed. 2d 184; Sierra Club v. Morton, 405 U.S. 727, 738, 92 S. Ct. 1361, 31 L. Ed. 2d 636; note, 11 A.L.R. Fed. 556, 560-67, §§2, 3. “[A] person who is not injured in fact by governmental action he seeks to challenge should be denied standing, even if he is trying to represent what he believes to be in the public interest.” Davis, Administrative Law Text (3d Ed.), p. 439. The United States Supreme Court recently stated that while an organization interested in the problem of environmental or consumer protection may represent its members who are injured by federal administrative action, “a mere ‘interest in a problem,’ no matter how long standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA.”⁶ Sierra Club v. Morton, supra, 739.

Appeals to the courts from decisions of administrative officers exist only under statutory authority. Sheridan v. Planning Board, supra; Bardes v. Zoning Board, 141 Conn. 317, 318, 106 A.2d 160; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172.

As we recently stated in Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 484, 338 A.2d 497, “[t]he concept of standing as presented here by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate issue can appeal an order.” The determination of aggrievement is a question of fact for the trial court, and the plaintiff has the burden of proving that fact. New Haven v. Public Utilities Commission, supra; Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 503, 264 A.2d 566; Foran v. Zoning Board of Appeals, 158 Conn. 331, 340, 260 A.2d 609; Hulbert v. Zoning Board of Appeals, 158 Conn. 187, 195, 257 A.2d 810; Johnson v. Zoning Board of Appeals, 156 Conn. 622, 624, 238 A.2d 413; I. R. Stich Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545; Hickey v. New London, 153 Conn. 35, 38, 213 A.2d 308; Krejpcio v. Zoning Board of Appeals, 152 , 211 A.2d 687; Luery v. Zoning Board, 150 Conn. 136, 140, 187 A.2d 247; Fox v. Zoning Board of Appeals, 146 Conn. 665, 667, 154 A.2d 520.

In four paragraphs of their complaint,⁷ the plaintiffs properly pleaded their respective claims of aggrievement. It was the function of the trial court to determine as to each plaintiff, first, whether the plaintiffs’ allegations if they should be proved would constitute aggrievement as a matter of law, and, second, if as a matter of law they would constitute aggrievement, then whether each plaintiff proved the truth of his allegations. The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them. Fletcher v. Planning & Zoning Commission, supra; Hickey v. New London, supra.

As to the plaintiff Nader, the court found: (1) “No evidence was presented that Ralph Nader has any ‘special interest’ in these proceedings.” (2) “No evidence was presented on behalf of the plaintiff Ralph Nader that he had suffered or might subsequently suffer any loss or injury as the result of the Commissioner’s approval of the exchange offer.” (3) “No evidence was presented that Ralph Nader had any special knowledge of, or responsibility for, the insurance industry.” (4) “Ralph Nader professed concern for obedience to law and the just disposition of every judicial or administrative proceeding.” Although the plaintiffs attacked the first and third of these findings as to the lack of evidence, they printed no evidence in the appendix to their brief to indicate that the court was in error in finding a complete lack of evidence. They did attack the court’s second specific finding that Nader presented no evidence that he had suffered or might subsequently suffer any loss or injury as a result of the commissioner’s decision but only on the ground that that finding was “in language of doubtful meaning so that its real significance may not appear.” We find no merit to this contention and no error in the court’s conclusion that Nader failed to prove aggrievement.

The appeal of the plaintiff Cnrtin requires hut brief comment. Not only does it appear that the court correctly concluded that she had failed to prove aggrievement but it further appears that subsequent to the judgment of the trial court and during the pendency of this appeal she tendered her shares of Hartford Fire for ITT series N stock pursuant to the exchange offer approved by the commissioner. The appeal is moot as to her. Southbury v. American Builders, Inc., 162 Conn. 633, 634, 295 A.2d 566; 4 Am. Jur. 2d, Appeal and Error, § 179; see Braasch v. Mandel, 40 Del. Ch. 12, 172 A.2d 271.

Cooper’s sole alleged bases were (1) a claim that the commissioner failed adequately to protect the public interest “by preventing the takeover of a domestic insurance company by outside financial interests which cannot be expected to maintain the same or as high a level of civic concern and support”; and (2) a claim that as a shareholder of ITT he is aggrieved by the alleged failure of the commissioner to protect his “interests by enforcement and application of the procedural and substantive provisions of Public Act No. 444.” As to Cooper’s allegations of aggrievement, the court made findings, which have not been attacked by the plaintiffs, that (1) Cooper did not participate in the proceedings before the insurance commissioner; (2) Cooper, although a party plaintiff, did not even appear or testify at the trial of this action from which he has appealed; and (3) he signed a proxy form which authorized the voting of his ITT shares in favor of the earlier plan of merger, the terms of which were substantially identical to the second plan which was approved by the commissioner. The court concluded that “[t]he plaintiff, Peter B. Cooper, does not have any ‘special interest’ in these proceedings, is not aggrieved within the meaning of Gen. Stat. § 38-39k (a), and is without standing to maintain this appeal.” We find no error in these conclusions.

We note in passing that before the trial of this case ITT and Hartford Fire jointly filed a demurrer and a motion to erase the plaintiffs’ appeal, claiming that the plaintiffs had “failed to allege sufficient facts to show that they are aggrieved parties within the meaning of § 11 of Public Act No. 444.” In its memorandum of decision denying the motion to erase, the court (Rubinow, J.) found that as to Cooper the complaint was sufficiently broad to encompass a possible claim and proof at trial that Cooper’s equity as a shareholder of ITT “may be ‘diluted’ ” by virtue of the share for share exchange of ITT series N convertible preferred stock for Hartford Fire stock, citing Allegheny Corporation v. Breswick & Co., 353 U.S. 151, 77 S. Ct. 763, 1 L. Ed. 2d 726. As we have noted, Cooper neither testified nor even appeared at the trial of this appeal and despite the suggestion in the court’s preliminary ruling on the motion to erase that Cooper might at the trial be able to prove aggrievement on the basis of a claim that his stockholder’s equity might be diluted, it nowhere appears that Cooper in fact ever made such a claim, much less that he introduced any evidence to prove it. The record contains no suggestion that such a claim was ever advanced by him. There is no reference to such a claim on his behalf in the draft finding, the finding, or the assignments of error. There is not a scintilla of evidence of such a claim in the appendix to the plaintiffs’ brief, nor is any such claim mentioned in the plaintiffs’ brief itself, nor was it advanced in argument.⁸

We have already noted Robertson’s general allegations of aggrievement including his status as a policyholder of Hartford Fire. The trial court’s findings as to what evidence Robertson produced to prove his allegations are contained in three paragraphs of the court’s finding: (1) “No evidence was presented that Reuben Robertson has any ‘special interest’ in these proceedings.” (2) “The only evidence offered of Reuben Robertson’s alleged aggrievement is his own speculation that, as a result of the exchange offer, Hartford Fire might in the future cease to offer for sale homeowners insurance similar to that now held by him.” (3) “Robertson also speculated, as a basis for his claim of aggrievement, that Hartford Fire might cease to offer homeowner’s insurance for sale on other than a group, or ‘mass merchandising,’ basis.” Significantly, the plaintiffs did not attack the latter two findings of the court and although they did attack the first finding they printed no evidence in the appendix to their brief which would disclose that the court’s finding as to the lack of evidence was erroneous. Nor did the plaintiffs assign error to the court’s final finding as to Robertson: “There is no evidence in the record that indicates a reasonable probability, or even possibility, that Hartford Fire will in the foreseeable future eliminate or reduce the amounts of homeowner’s or other personal lines of insurance made available for purchase by individuals unaffiliated with any program of mass merchandising.” On the basis of these findings the trial court concluded: “The plaintiff, Reuben Robertson, does

not have any ‘special interest’ in these proceedings, is not aggrieved within the meaning of Gfen. Stat. § 38-39k (a), and is without status to maintain this appeal” and “[n]o credible evidence was presented to support any claim that the conditions included in paragraph 2 of the Commissioner’s Finding and Final Order adversely affected in any way the interests of the policyholders or shareholders of Hartford Fire.” We find no error in these conclusions of the court. Mere generalizations and fears are not sufficient to establish aggrievement. Hughes v. Town Plan & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705; Joyce v. Zoning Board of Appeals, 150 Conn. 696, 698, 187 A.2d 239.

As we have previously stated in this opinion, it is well-settled law that the question of aggrievement is a jurisdictional one and claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it. Neither the size of the corporations involved nor the publicity attendant on the decision of the insurance commissioner nor the prominence of the named plaintiff justifies a departure from established legal principles or a disregard of settled requirements as to burden of proof, submission of evidence, and the preservation of claimed errors by assignment supported by appropriate briefing, with such supplemental appendices as the case requires.

We find no error in the conclusion of the trial court that the plaintiffs failed to prove the aggrievement which the legislature by the provisions of § 38-39k (a) of the General Statutes has expressly prescribed as a condition precedent to the prosecution of their appeal. In view of this conclusion, it is unnecessary to discuss the plaintiffs’ remaining assignments of error.

There is no error.

In this opinion Shapiro, Loiselle and MacDonald, Js., concurred.

1 At the commencement of this appeal, the then insurance commissioner, William E. Cotter, was named as a party defendant in his oficial capacity. He resigned as commissioner on September 18, 1970, and his successor, Eobert F. ClafEey, was substituted as a party defendant. When Paul B. Altermatt succeeded ClafEey as insurance commissioner he, in turn, on April 2, 1971, was substituted as a party defendant.

2 “[General Statutes] See. 38-39b. acquisition of control of DOMESTIC INSURANCE COMPANIES LIMITED. INFORMATION STATEMENT FURNISHED STOCKHOLDERS. BOND REQUIRED. (a) No person Otter than the issuer shall make a tender offer for, or a request or invitation for tenders of, enter into any agreement to exchange securities for, seek to acquire, or acquire, in the open market or otherwise, any voting security, or any security convertible into or evidencing a right to acquire a voting security, of a domestic insurance company if, after the consummation thereof, such person would, directly or indirectly, or by conversion or by exercise of any right to acquire, be the beneficial owner of more than ten per cent of the voting power of the securities of such domestic insurance company, unless, at the time any form of initial offer, request or invitation is made to securityholders or the agreement is entered into, or prior to the acquisition of such securities if no offer or agreement is involved, such person has filed with the commissioner and has sent to such insurance company, and such insurance company has sent to its stockholders, a statement containing the information required by subsection (b) of this section and such offer, request, invitation, agreement or acquisition has been approved by the commissioner as provided in section 38-39d. Such insurance company shall mail a copy of such statement to its stockholders within thirty days from the receipt of such statement and the expenses of such mailing shall be borne by the person sending such statement to the company. Any person filing a statement with the commissioner under the provisions of this subsection shall deposit with the commissioner a bond, executed by a surety company authorized to do business in this state, in the amount of fifty thousand dollars, conditioned to indemnify the insurance company for expenses incurred in carrying out its duties under sections 38-39a to 38-391, inclusive. . .

3 “[General Statutes] Sec. 38-39d. disposition ee acquisition, hearing, standard op review. . . . (b) The commissioner shall not approve any such offer, request, invitation, agreement or acquisition unless he finds that: (1) Upon completion of the acquisition, the domestic insurance company would bo able to satisfy the requirements for the issuance of a license to write the line or lines of insurance for which it was licensed prior to such acquisition; (2) the financial condition of the acquiring person is not such as might jeopardize the financial stability of the insurance company, or prejudice the interests of its policyholders or the interests of any remaining securityholders who are unaffiliated with the acquiring person; (3) if a tender offer or exchange offer is contemplated, the terms thereof are fair and equitable to the securityholders of the insurance company; (4) the plans or proposals which the acquiring person has to liquidate the insurance company, to sell its assets or to merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management, are fair and reasonable to policyholders and securityholders; and (5) the competence, experience and integrity of the acquiring person are such that it would be in the interest of the policyholders and securityholders of such insurance company and in the public interest for such offer, request, invitation, agreement or acquisition to be made.”

4 “[General Statutes] Sec. 38-39k. appeals. (a) Any person aggrieved by any regulation, order or other action of the commissioner pursuant to sections 38-39a to 38-39Í, inclusive, or any failure of the commissioner to act as required by said sections may appeal therefrom to the superior court for Hartford county. The court shall conduct its review without a jury and by trial de novo, except if all parties so stipulate, the review shall be confined to the record. Portions of the record may be introduced by stipulation into evidence in a trial de novo as to those parties so stipulating.”

5 It is noted that the plaintiffs unsuccessfully sought to intervene in the antitrust suit brought by the department of justice against International Telephone and Telegraph Corporation and Hartford Fire Insurance Company. In denying their motion, the United States District Court for the district of Connecticut stated: “[I]t is unnecessary to dwell on the insubstantiality of their interest, which is only what is inherent in their self-assumed role as ‘representatives of the public who desire to see that the antitrust laws are enforced.’ That does not amount to that ‘personal stake in the outcome of the controversy’ essential to standing. Baker v. Carr, 369 U.S. 186, 204 [82 S. Ct. 691, 7 L. Ed. 2d 663] (1962).” United States v. International Telephone & Telegraph Corporation, 349 F. Sup. 22, aff’d per curiam by the United States Supreme Court sub nom. Nader v. United States, 410 U.S. 919, 93 S. Ct. 1363, 35 L. Ed. 2d 582.

6 Section 10 of the Administrative Procedure Act, 5 U.S.C. § 702, provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

7 “37. The plaintiffs individually and collectively are aggrieved persons within the meaning of Public Act No. 444 in that their interests as consumers and members of the publie have not been protected by the Commissioner as required by that Act.

“38. Plaintiffs Nader and Bobertson are aggrieved persons within the meaning of Public Act No. 444 in that the actions of the Commissioner in failing to enforce the substantive and procedural requirements of the Act, in failing to consider the points, evidence and questions submitted by them during the proceedings, in failing to conduct hearings or provide opportunity for public commentary on the conditions imposed in the Hay 23 order, and in failing to give reasons for such actions have deprived them of their rights set forth in Publie Act No. 444 to participate in the exchange offer proceedings.

“39. Plaintiffs Nader, Curtin and Cooper, as residents, citizens and members of the public of the State of Connecticut, and as beneficiaries of the civic and charitable activities of domestic insurance companies, including Hartford, within the State of Connecticut, and their support of community colleges and other educational institutions, such as the University of Hartford are aggrieved persons within the meaning of Publie Act No. 444, in that the Commissioner has failed to adequately protect the public interest by preventing the takeover of a domestic insurance company by outside financial interests which cannot be expected to maintain the same or as high a level of civic concern and support and cannot be required to do so by the insurance commissioner by virtue of the order he has entered.

“40. Plaintiff Curtin, as a shareholder of Hartford, Plaintiff Cooper, as a shareholder of ITT, and Plaintiff Bobertson, as a policyholder of Hartford, are aggrieved persons within the meaning of Publie Act. No. 444 in that the Commissioner has failed to protect their interests by enforcement and application of the procedural and substantive provisions of Public Act No. 444, including notice and hearing on all the terms and conditions of the exchange offer and all material facts relating thereto.”

8 It is to be noted that an exhibit in the case discloses that at the annual meeting of the stockholders of ITT held in Houston, Texas, on May 19, 1970 (a date prior to the filing of the plaintiffs’ appeal), the stockholders of ITT by a vote of 59,942,269 to 746,488 voted to approve an amendment to the certificate of incorporation of ITT to add further provisions to the terms of issue of the series N preferred shares previously authorized to be used in the exchange offer to the shareholders of Hartford Fire. From all that appears, it may well be that Cooper’s ITT shares were in fact voted in favor of the issuance of the series N shares. In any event, if his rights as a stockholder in ITT were in any way illegally prejudiced by the issuance of the series N shares, his proper remedy was by a shareholders’ action against ITT, a Delaware corporation, not by an appeal to the insurance commissioner of Connecticut, who had no jurisdiction to approve or disapprove the issuance of stock by a Delaware corporation.