ADMISSIBILITY OF COMPUTERIZED ENTRIES By Charles F. Brower Increasingly, counsel are confronted during trial with computerized entries or records that are offered against their clients. A few ground rules may be helpful. 1. Any such computerized entries may be inadmissible hearsay. Hearsay consists of a statement made out of court which is offered to establish the truth of the facts contained in the statement. State v. Randolph, 190 Conn. 576, 584 (1983). If the purported entries are offered to prove that they were made by your client and that they contained damaging information which is the subject of the lawsuit, they may be offered to prove the truth of the contents of the entries through the testimony of one who had no personal knowledge of the information therein, and thus may be excludable as hearsay. 2. There must be authentication for any such entries vis-a-vis your client if they are claimed to be generated by him. In order for a document to be admissible in evidence, it must be authenticated, i.e., there must be proof that it was written or generated by the persons whose names are attached to them. Bridgeport Hardware Mfg. Corporation v. Bouniol, 89 Conn. 254, 260 (1915); Sachs v. Zoning Board of Appeals of the Town of Branford, CV 89-0292324S (November 5, 1990) Judicial District of New Haven, DeMayo, J.. 3. The records may not be admissible as business entries under the provisions of Conn. Gen. Stat. §52-180. In order for a computer-generated document to be admissible as a business entry pursuant to the provisions of Conn. Gen. Stat. §52-180, there must be evidence of the three elements of the statute: 1) that the document was generated in the regular course of business; 2) that it was the regular course of business to generate such document; 3) that it was generated at or about the time of the transaction in question. Business entries represented by computer-generated documents are only admissible where such records are created in the normal course of business for business activities, rather than for litigation. American Oil Co. v. Valenti, 179 Conn. 349 (1979). It is the duty to report in a business context that provides the reliability to justify the hearsay exception. CenterBank v. Sachs, CV 91-037054 (Jan. 3, 1994) Judicial District of Ansonia/Milford at Milford, Jones, J. The witness through whom such records are offered must show a personal familiarity with the records, the manner in which the records were created, and be able to testify to the three elements required by the statute. Connecticut Post Ltd. Parts. v. Allen, CVNH 9610-7875 (Jan. 12, 1998) Judicial District of New Haven, Levin, J. The test is the witness’ knowledgeability about the basic elements that afford reliability to computer printouts. SKW Real Estate Limited Partnership v. Gallicchio, 49 Conn. App. 563 (1998). The witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made. Shawmut Bank Connecticut v. Conn. Limousine Serv. 40 Conn. App. 268 (1996) If these requirements are not met, the records are not admissible pursuant to the provisions of §52-180. Lombardi Enterprises v. City of Waterbury, CV 94-102683 (Mar. 6, 1997) Judicial District of Waterbury at Waterbury, Shortall, J.; Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575 (1995). CONSERVATION EASEMENTS Land Preservation with Tax Benefits By Marcus G. Organschi Land owners who desire to preserve their land from future development can protect their property while retaining private ownership by granting a conservation easement on the land. If the grant is to a local land trust, governmental body, or certain other organizations, the grant may qualify as a charitable contribution and may reduce the owner’s income tax or estate tax significantly. A conservation easement is a legal agreement made by a land owner to restrict the potential development on the land owner’s property. In Connecticut, conservation restrictions were recognized in 1971 when the Connecticut General Assembly passed Public Act 173, now codified in Section 47-42a and 47-42c of the General Statutes. Other states have similar legislation. Each conservation easement can be different depending on the owner’s desires or conservation plans. The easement can be drafted to limit or prohibit certain uses of the property and to allow other types of uses to suit both the grantor and the grantee. Essentially, the easement will convey to the grantee the right to enforce the limitations in the future. The easement will be recorded on the land records and will run with the land, and each successive owner will be subject to the same restrictions, even after the original grantor no longer owns the property and even after the grantor’s death. The easement does not convey ownership of the property, however, nor does it allow public access to the property. Instead, the property owner retains all rights of ownership other than what is restricted by the easement. If the grantee is an organization that qualifies as a public charity under Section 501(c)(3) of the Internal Revenue Code and the restrictions granted in the easement are in perpetuity, then the donation of the easement can be a tax deductible contribution. Generally the value of the gift is the difference between the fair market value of the property unencumbered by the easement and the fair market value of the property with the limitations and restrictions contained in the easement. The grantor may be entitled to significant deductions on federal and state income tax filings with a five year carry over. Any deductions not taken within that period are lost. Similarly, placing conservation restrictions on property prior to the owner’s death may reduce estate taxes dramatically. This can be extremely important when considering estates with significant land holdings. Often, the value of the land can increase the value of the estate substantially with a concomitant increase in estate taxes. If the estate taxes are sufficiently high, it may be necessary to sell off property in order to pay those taxes. If a conservation easement is placed on the property prior to the owner’s death, the value of the property may be reduced sufficiently to permit the land owner’s family members or other beneficiaries to retain ownership of the land instead of being forced to sell the property to pay estate taxes. Because each individual’s needs are different, it is important for each property owner to discuss these issues with accounting and legal counsel. Local land trusts can assist land owners in these important planning considerations. Usually, town hall staff can direct land owners to members of the local land trust to provide assistance. Conservation easements are an important tool for preservation of open spaces. They can provide significant advantages to land owners and should be considered in tax and estate planning DISCLOSURE OF EXPERTS By Charles F. Brower I. FACTS Practice Book §13-4(4) requires a party expecting to call an expert witness at trial to disclose the name of the expert; the subject matter upon which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; and a summary of the grounds for each opinion. It is important for trial counsel to realize the importance of making a comprehensive disclosure of what the expert will testify to in the 13-4(4) pleading. The cases dealing with the court’s discretion in allowing or disallowing expert testimony based on allegedly improper disclosure point out situations where courts have scrutinized the expert disclosure efforts. II. CASES EXCLUDING EXPERT TESTIMONY In Wright v. Hutt, 50 Conn. App. 439 (1998), the court excluded the expert testimony by two medical witnesses because the plaintiff failed to comply with provisions of Practice Book §220D and because the plaintiff failed to respond to interrogatories requesting the disclosure of identity of expert witnesses. In Ellicott v. Matyas, No. 005405 (April 30, 1993) Judicial District of Litchfield, April 30, 1993, Pickett, J., the expert testimony in question was excluded because no expert disclosure was made by the plaintiffs prior to trial in compliance with §220. In Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103 (1984), the plaintiff first had answered in response to interrogatories that she had neither retained an expert nor consulted any not intended to be called as a witness, and later disclosed that the expert would be testifying on the standard of care and departures from the standard of care. The Court excluded the testimony of the witness on causation because it was not within the scope of the disclosed subject matter. In Sung v. Butterworth, 35 Conn. App. 154 (1994), the Court was held to have properly exercised its discretion in excluding the testimony of an expert named Spinella who was not disclosed as an expert at all but was disclosed as someone who the plaintiff intended to call concerning his treatment, as to which subject the Court limited his testimony. In Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400 (1986), no disclosure of expert testimony was made at all but rather plaintiff’s counsel mailed the expert’s report to the defendants, who then deposed the expert and the Court then based its rulings regarding the scope of the expert’s testimony on the deposition and the report. In Perez v. Mount Sinai Hospital, 7 Conn. App. 514 (1986), the plaintiff failed to answer two set of interrogatories concerning whether she had employed an expert with regard to the allegedly negligent treatment of the plaintiff, and did not respond to a third set of interrogatories until the eve of trial, whereupon the court granted the defendant’s motion to exclude the expert testimony. Just prior to the commencement of trial, the plaintiff subpoenaed a Dr. Fisher, who was prohibited by the trial court from testifying to the standard of care and causation, and the Appellate Court sustained the trial court observing that over a period of approximately six years the plaintiff had never answered the interrogatories requesting the identity of any expert witness and that it was incumbent upon the plaintiff in a medical malpractice case to establish that the defendant’s treatment and care fell short of the required standard and that that breach proximately caused the plaintiff’s injury. In Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591 (1986), the Appellate Court reversed the trial court which it felt had improperly allowed testimony concerning expert opinion in the face of the trial court’s own ruling denying such testimony for failure of the plaintiff to properly disclose experts until after the trial had commenced. III. CASES ALLOWING EXPERT TESTIMONY The expert testimony which has been allowed by Connecticut courts has been based not only on the basis of the total contents of a 220D pleading but also on the basis of reports furnished to the defendants in connection with discovery proceedings, and the deposition of the expert where the defendant’s have taken it. For example, in Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407(1986), the trial court allowed the plaintiff’s accident reconstruction expert to testify concerning his opinion because the expert’s preliminary report was submitted in response to a discovery order, the court reviewed the contents of the report to see whether the opinions of the expert were contained in the report, the Defendant knew the identity of the expert and the nature of his expert and the Appellate Court held the trial court did not abuse its discretion in allowing the testimony. In Levesque Builders v. Hoerle, 49 Conn. App. 751 (1998), the defendant’s motion in limine to exclude the expert’s report was denied on the grounds that the plaintiff had produced the appraiser’s report for the defendant, and the trial court had offered to grant the defendant a continuance to provide him with more time to prepare and depose the appraiser. In Mezes v. Mead, 48 Conn. App. 323 (1998), the Appellate court upheld the trial court’s allowing the defendant’s expert to testify, again viewing the disclosure of expert pleading filed by the defendant prior to trial as a whole and observing that it contained the proposed expert’s opinions. In Roberto v. Honeywell Inc., 43 Conn. App. 161, the Appellate Court held that the trial court had properly allowed the experts to testify on behalf of the defendant which had filed disclosure of expert witnesses that addressed the proposed testimony of the expert and because the Appellate Court and the trial court felt that the plaintiff had ample opportunity to depose the experts concerning these matters before trial PARTITION IN KIND IN CONNECTICUT By Charles F. Brower Partition is an equitable proceeding brought in the Superior Court for the purpose of severing jointly owned real estate. Normally, the severance is accomplished by selling the real estate at a court-supervised auction and simply dividing the net proceeds after the sale expenses in a manner consistent with the legal ownership of the property. However, the legal preference in Connecticut is not for a partition by sale, but by physical division of the property. The reason this does not normally occur is because the nature of the property does not lend itself to physical division. But where the property consists of large parcels of land, or several different parcels, the court is charged with coming up with imaginative and equitable ways of dividing up the property if it can. If the physical division does not exactly divide the real estate in the way the court feels is equitable, the court can order cash payments from one owner to another, or "owelty." When the court hears the evidence in a partition in kind, the court hears from appraisers and considers the investments of the parties in the property, including the acquisition costs, purchase of improvements to the extent they are reflected in the current value, and the payment of carrying charges, such as taxes, insurance, and maintenance expenses on the property. The court then comes up with a division of the property severing the interests of the owners so that each emerges from the action with an undivided ownership in a lesser piece of property TESTAMENTARY CAPACITY/MEETING OF PROPONENT'S BURDEN By Charles F. Brower Connecticut courts have made it very clear that both in the Probate Court and in the Superior Court, the burden of proof with respect to both testamentary capacity and due execution is on the proponent of the will. City National Bank & Trust Co. of Danbury, 145 Conn. 518 (1958); Pastir v. Bielski, 174 Conn. 193 (1978); Crane v. Manchester, 143 Conn. 498 (1956). The burden of proof is on the proponents to prove that the testator or testatrix has mind and memory sound enough to know and understand the business upon which he or she was engaged at the time that he or she executed his or her will. Stanton v. Grigley, 177 Conn. 558 (1979); Maroncelli v. Starkweather, 104 Conn. 419 (1926); Achison v. Lewis, 131 Conn. 218 (1944). Most will contests arise where a natural object of the testator's bounty has been excluded from the will, and obviously, the courts have held that that in and of itself is not grounds to set aside the will, because to do so is to "allow it to be defeated because it attempted by it to carry out the lawful purpose for which most wills are made." Allen Denison and Others: Appeal from Probate, 29 Conn. 399 (1860); Sturdevant's Appeal from Probate, 71 Conn. 392 (1899). To meet the proponent's burden, it is necessary for the proponent to adduce evidence of the "details of conduct or behavior of the testatrix that bear on the issue of testamentary capacity." Maroncelli v. Starkweather, supra p. 423. It is not sufficient for the witnesses to testify to general opinions concerning the testator/testatrix without the subordinate facts from which their opinion or conclusion has been drawn. Maroncelli v. Starkweather, supra at p. 424. Accordingly, the proponents and their allies should not simply rely on the testimony of the will witnesses in putting on their direct case, either in the Probate Court or the Superior Court, but should rather set forth a complete picture of how it came about that the testator or testatrix drafted the will that they did. This evidence should include, where possible, the following: 1) evidence from treating physicians, including office notes, relating to care and treatment of the deceased, which notes would of course include the deceased giving the treating physician a history of his or her particular ailment at the time, and would often include observations of the treating physician, which would bear on the mental capacity of the testator or testatrix; 2) attorney's office notes, correspondence or written materials, and testimony of not only the conversations with the decedent relating to the will itself, but also business matters which were being handled for the decedent by the attorney, including communications with the decedent about these matters, file notes of the attorney reflecting the decedent's observations or desires with respect to these matters, etc.; 3) witnesses such as friends or acquaintances who could testify to the circumstances giving rise to the pattern of distribution reflected in the contested will, i.e., events which would explain the testator's gift by will to a particular beneficiary. E.g., if a gift is given to a church, what was the testator's involvement with the church?; what were the testator's connections with the church? If a particular person has been benefited by the will, what was the testator's relationships with that person?, etc.; 4) witnesses who could describe statements made by the testator consistent with the disposition in the will. Did the testator state to friends or close acquaintances what he or she intended to do by will, and why?; 5) witnesses to specific activities engaged in by the testator by testatrix which would require mental acuity, such as stamp collecting, use of a computer, etc. In one case we had, witnesses testified to the testatrix's activities in setting up an automatic burglar alarm system and knowing how to use the code to activate and de-activate it; 6) witnesses who could verify the decedent's accuracy in handling financial or business related matters. For example, in one case we had, a lawyer who had represented the decedent in a divorce case (the wife had been excluded from the will, and the divorce had not taken place by the time of death) testified to the effect that the testator understood thoroughly and accurately the finances of both himself and his wife at the time he retained the attorney, and that once the attorney had verified the finances of the two parties, it turned out that the testator had precisely identified what the assets were and what their value was; 7) activities of the testator or testatrix in handling complicated business transactions, such as real estate closings, complicated financial matters involving his or her understanding of the figures involved in these transactions. These types of evidence should be offered by the proponents as part of their direct case, and not await the opponent's case, in view of the rule that the testimony of the proponents in rebuttal would be just that, evidence in rebuttal of the opponent's evidence. DiMaio v. Penesio, 115 Conn. 295, 298 (1932); Grievance Committee v. Dacey, 154 Conn. 129, 152 (1966); State v. Peary, 176 Conn. 170, 174-175 (1978). Due execution and testamentary capacity are burdens for the proponent, even though the contestant affirmatively pleads lack of due execution and lack of testamentary capacity. Pastir v. Bielski, supra. The proponents retain the burden of proof whether they are the appellant or the appellee. Pastir v. Bielski, supra. This burden remains even though the opponent of the will offers no evidence to contradict the proponent's evidence. Crane v. Manchester, supra. In summary, counsel should be sensitive to the fact that both in the Probate Court and the Superior Court on an appeal de novo, the proponents have the burden of proving testamentary capacity by detailed evidence from witnesses who have knowledge of facts bearing on that issue. This burden should be taken to mean that the proponents must prepare themselves to offer on their direct case the complete spectrum of facts and circumstances which they feel are necessary for the trier of fact to determine that the testator or testatrix had the requisite testamentary capacity at the time of the will.

CUTPA

CUTPA AND BUSINESS AND CONSUMER RELATIONSHIPS

By Chuck Brower

In advising a prospective client as to whether or not he or she has a claim under the Connecticut Unfair Trade Practices Act (Section 42-110b of the Connecticut General Statutes), it would make things a lot clearer if the Connecticut courts were to break down the claims that arise under this Act in the same manner as claims that arise under Section 5a(1) of the Federal Trade Commission Act (15 USC 45(a)(1), as Connecticut's Act requires.

If you look closely at 42-110b, it provides three separate and distinct bases for an Unfair Trade Practices claim as does the Federal Trade Commission Act: 1) an unfair method of competition; 2) an unfair act or practice; and 3) a deceptive act or practice. See Lefevre, Understanding the Connecticut Unfair Trade Practices Act: Analysis of Federal Precedent and Connecticut Case Law, 9 Bridgeport Law Review, 325. The purpose of this article is to cl arify for the average practitioner and prospective CUTPA claimant the parameters of a potential CUTPA claim perhaps more the clearly than the Connecticut courts have done.

1. The first category of CUTPA violations as set forth in both acts is unfair methods of competition. An unfair method of competition claim would arise in a situation where an unethical competitive practice is engaged in, whether or not it falls specifically within an area previously held unlawful or if it is a practice which is likely to grow into a violation of the Sherman act. FTC v. Keppel & Bros., Inc., 291 U.S. 304 (1934)(deceptively wrapped candy); Averitt. The Meaning of Unfair Acts or Practices in Section 5 of the Federal Trade Commission Act, 70 Georgetown Law Journal 225 (1981); Lefevre, supra, pp. 326 et seq.

This type of CUTPA violation might be illustrated by Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480 (1995). In that case, the plaintiff presented evidence showing that Larsen, while still its president, was offered and subsequently accepted a position at a real estate brokerage firm which was an acknowledged competitor of the plaintiff. Both companies were in the business of selling and leasing real estate to the public. The evidence showed that a letter prepared and mailed by Larsen to clients of the plaintiff, falsely stated that the plaintiff was to cease operations and merge its personnel with Pierce Company. Larsen admitted instructing the New Haven Board of Realtors that he no longer was affiliated with the plaintiff and instead was affiliated with Pierce Company and that the plaintiff was going out of business.

The Supreme Court held that these activities could properly be considered to be within the purview of the Connecticut Unfair Trade Practices Act because they "implicated the services of both Larsen and the plaintiff as real estate brokers in the New Haven area and, thus, implicated trade or commerce under CUTPA."

Although the Court rejected the notion that in order to make out this type of violation of the Connecticut Unfair Trade Practices Act, a direct "consumer relationship" was required, the court did not explain which category of CUTPA violation was being considered. The Court might well have explained that it was one that arose under the "unfair methods of competition" basis of CUTPA.

It is also confusing to the average practitioner for the Court to state, without explanation,as it does on page 496, that "CUTPA imposes no requirement of a consumer relationship. . ." because CUTPA is not limited to conduct involving consumer injury and ". . . a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury claim." The reason this is confusing is that the whole underlying theory of Section 5a and its enforcement is to prevent injury to consumers. It would have been a lot clearer for the Court to examine whether this type of claim was one properly brought as a "unfair method of competition" claim, which is the first of the types of claims that can be brought under the Act, and which does not depend on whether or not there is a direct relationship between the alleged offender and a consumer.

In alluding to the legislative history of the Act on page 497, the Court states that the Act includes causes of action that "give honest businessmen great protection [against] deceptive or unscrupulous [businessmen], who by unfair methods of competition and by. . .deceptive advertising, etc., unlawfully divert trade away from law abiding businessmen." This history alludes to the first and third bases for recovery under the Act, which are left unexplained by the court. The court then goes on to enunciate the type of claim that it is addressing without really saying whether it is a Category One violation of 15 U.S.C. Section 45(a)(1).

Another example of what could have been analyzed as a "Category One CUTPA violation" can be found in McLaughlin Ford Inc. v. Ford Motor Company, 192 Conn. 558 (1984), in which the plaintiff unsuccessfully challenged the installation of a competitive dealership in an area in close proximity to the plaintiff. In analyzing (and ultimately rejecting) the plaintiff's claim, the court stated that "consumer injury" was not necessary for the plaintiff to make out a CUTPA claim and (page 567) stated that "In order to prevail in a cause of action under CUTPA, the facts proved by the evidence must establish either unfair methods of competition [or] unfair deceptive acts or practices." However, the court then goes on to cite the "Cigarette Rule", a Category Two test, as applicable to this type of claim. In rejecting the plaintiff's claim, the court further utilizes the "substantial injury" test (another Category Two test) to conclude that the plaintiff had not established a CUTPA violation.

Had the court analyzed the plaintiff's claim as a Category One claim instead of employing a consumer unfairness claim analysis, the opinion would be a lot easier to understand.

2. The second category of CUTPA violations as set forth in Connecticut General Statutes Section 42-110b, is unfair acts or practices, analyzed by the FTC under its consumer unfairness standard. Lefevre, supra, pp 329 et seq.

It is this branch of CUTPA claims that the courts have most commonly addressed without identifying it as such and it is this branch of CUTPA claims which applies the so-called "cigarette rule" which (incorporating the FTC's consumer unfairness standard) provides that the court should determine 1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise- whether, in other words, it is within at least the penumbra of some common law, statutory or other established concept of unfairness; 2) whether it is immoral, unethical, oppressive, or unscrupulous; 3) whether it causes substantial injury to consumers. Conaway v. Prestia, 191 Conn. 484 (1983)(defendant Landlord rented property to plaintiffs with multiple code violations); Dilinia Lee Hall ppa v. Paul Rivera, et al, Sup. Ct at Guilford, No 049449 (10-29-96 Skolnick J.)(minor child exposed to lead paint by defendant-landlord's building); Halloran v. Spillane's Service Center, 41 Conn. Supp. 44 (1990) (invalidating defendant's policy of capturing and holding hostage illegally parked cars).

Further, in applying the Cigarette Rule, the court applies the "substantial injury" rule to determine whether the consumer injury under a Category Two violation is enough to warrant a recovery. That rule requires that the injury must be substantial, it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces and it must be an injury that consumers themselves could not reasonably have avoided. Averitt, supra, 245 et. seq.

Both the Cigarette Rule and the substantial injury test are to be applied only in situations involving Category Two violations and not in Category One or Category Three violations.

3. The third category of actions that violate the Federal Trade Commission Act are deceptive acts and practices which are acts or practices which have a tendency to mislead a substantial number of consumers in a material way. American Home Products v. FTC, 695 F.2d, 681 (3d Cir. 1982)(deceptive Anacin ads). In this category might be placed the cases of Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575 (1994)(defendant dealer sold vehicle on which odometer had been rolled back); Phillips v. David McDermott Chevrolet, No 293965, March 25, 1992, CSCR 440 (defendant dealer sold previously leased vehicle without disclosure). See also, Covenant Radio Corp. v. Ten Eighty Corp., 35 Conn. Supp. 1 (1977) (allegedly deceptive misuse of plaintiff's radio call number).

Unfortunately, the court in Prishwalko did not analyze the case as a Category Three deceptive act or practice but rather applied the Cigarette Rule, 33 Conn. App. at 584 even though it stated before citing the rule that the rule was to be followed "in determining whether a practice that is neither in violation of the anti-trust laws nor deceptive is, nonetheless, unfair." It is hard to imagine an act more deceptive than selling a consumer a motor vehicle with the odometer mileage intentionally altered. Although the analysis by the court in the Prishwalko situation could arguably be within Category Two, the point of this article is that, as above stated, it would be a lot more helpful to the average practitioner if the court were to address the alleged violations under 42-110b in the same manner as alleged violations are analyzed under the Federal Trade Commission Act as our statute requires the courts to do.

SELECTING THE RIGHT AUTO INSURANCE COVERAGE

By Ann H. McCarthy

Several years ago, Connecticut enacted sweeping reforms in the laws governing automobile insurance. At that time, we wrote many of you to advise you how best to protect yourselves and your family members in the unfortunate event that one of you was involved in a serious car accident.

Many of you informed us that you found that information to be useful in selecting your automobile insurance coverage. As the Connecticut Courts have now had the opportunity to interpret many of the 1994 reforms, we wish to update that information.

BODILY INJURY OR LIABILITY COVERAGE

In Connecticut, the motorist who causes an accident through his or her negligence is generally responsible for paying the injured party's related medical and auto expenses. The vast majority of motorists protect themselves from financial liability by purchasing automobile liability insurance.

Liability coverage can be purchased in various amounts as either split limits (per person/per accident) or combined single limits (one limit for one victim or all victims) depending upon the insurance company. The legally required minimum amount of liability coverage is $20,000 per person and $40,000 per accident no matter how many people are injured in one accident.

Common increments are $100,000/300,000; 250,000/$500,000; $300,000 single limit and $500,000 single limit. If you can afford it, we suggest a minimum of $500,000 in liability coverage. Additional bodily injury coverage should be and is frequently purchased as umbrella coverage in increments of $1 million. Anyone who owns their own home should have umbrella coverage.

UNINSURED/UNDERINSURED MOTORIST COVERAGE

Unfortunately, there have always been individuals who neither purchase insurance nor possess sufficient financial resources to enable them to respond to such damage claims. This leads to situations in which innocent victims are unable to secure compensation from the person whose negligence caused their injuries.

That is why the Connecticut legislature made it mandatory for insurance companies to offer their customers the option of purchasing uninsured and underinsured motorist coverage. By purchasing such coverage, you can protect yourself and your family members financially, in the unfortunate event you or your loved one is struck by a motorist with either no insurance coverage or inadequate insurance coverage.

The law requires insurance carriers to offer uninsured/underinsured motorist coverage up to two times the amount of your liability insurance. Assuming that you wish to have the maximum amount of UM coverage, you would:

1) increase your bodily injury liability limits to the maximum. This would be regardless of the amount of excess or umbrella coverage that you have available. This will impact on the amount of uninsured/underinsured motorist coverage that you will be able to obtain.

2) elect the option to double your uninsured motorist coverage. Never sign any document stating that you elect to reduce your UM coverage below your liability limits;

3) elect the option for conversion uninsured motorist coverage. This would allow you to recover the full amount of your UM claim without a deduction for insurance proceeds received from the at-fault party's insurance company.

Since the uninsured motorist legislation and regulations do not specifically define an insured who is entitled to coverage under the uninsured motorist provisions of the policy, public policy mandates that an insurer provide uninsured motorist benefits to any person defined as an insured under the liability portion of the policy. The typical uninsured motorist policy provides coverage for: 1) the named insured; 2) relatives of the named insured living in the same household with the named insured; 3) anyone occupying a vehicle insured by the liability coverage.

It is important to note that those living in the same household as a named insured who own their own vehicle and who are injured by an uninsured motorist while occupying their own vehicle, may be excluded from coverage under the policy of the persons in whose household they reside. If there is such an exclusion in your policy, that relative should purchase his or her own liability and UM coverage.

ARBITRATION / DIRECT ACTION SUIT

Disputed uninsured/underinsured claims are resolved in one of two ways. Either the claim is sent to arbitration or a lawsuit must be filed in court. The insurance policy will provide for the process you must follow.

Arbitration is by far the faster avenue. One arbiter resolves claims under $40,000. A panel of three arbiters determine claims in excess of $40,000. The arbiters are usually attorneys, one nominated by each side and the third a neutral.

By the late 1980's and early 1990's, many auto insurers had concluded that the arbitration system was not working to their advantage. They therefore began issuing endorsements which omitted the arbitration clause or made arbitration available only if the insurer as well as the insured agreed to it.

This restored most claimants to their original status as plaintiffs in contract suits for UM benefits, subject to the rules, formalities, and delays of the civil court system.

If possible, select a policy which enables you to bring contested claims to arbitration. This will enable you to collect any funds to which you may be entitled sooner.

YOUR POLICY

One of the first questions we ask any client consulting us in connection with a motor vehicle accident is "Do you have a complete copy of your policy?" Your policy is the contract which sets out the terms of your coverage as well as the claims procedure. Policies differ not only among carriers but also among policy holders. Each policy has its own unique exclusions, coverages, and claims procedure. Without the policy, it is impossible for us to determine your legal rights and obligations.

Once an accident has occurred, insurance companies are not quick to provide you or your attorney with a copy of your full policy. This problem can be avoided if you are in the habit of securing a complete copy of your policy each time you renew it. Please be aware that a "declarations page" describing by number the forms which make up your policy is not a complete policy.

Immediately upon receiving the new policy you should examine it carefully against your previous policy to ensure that the coverage you requested is reflected in document. Once you have reviewed it carefully and are satisfied that it is accurate, file it in a safe, easily accessible place.

We would be happy to review your policy or answer any questions for you without charge. We hope that you never have reason to make a claim against your policy.


Family Enterprise Utilization of Revocable Inter Vivos Trusts

By Ralph White
Managing Member
Analytics Network, LLC, Litchfield, CT 06759
(860) 567-1460
www.analyticsnetwork.com

Summary
Inter vivos trusts present owners of private and family enterprises a powerful estate planning tool. Among the compelling benefits of the inter vivos trust are:

•facilitates the professional management of the enterprise
•avoidance of probate in most cases
•avoidance of ancillary probate
•intergenerational business continuity
•trustee governed by iyprudent investor ruleslo
•preservation of family control and management
•shields the confidentiality of the provisions of the trust
•accelerates estate settlement
•avoids commingling of assets
•preserves stepped up basis in separate property states
•facilitates fiduciary administration in incompetency
•limits beneficiary options to accord with settlor™s intent
•unlikely to be contested
•jurisdictions may be selected for optimal compatibility with objectives
•often the centerpiece of comprehensive estate and tax planning

CONTINUE READING ARTICLE (pdf)

HIA/CUTPA CASES- PROBLEMS WITH LOGIC

In its zeal to put teeth into the Home Improvement Act (HIA), which very few contractors follow, the legislature has provided in section 20-427(c) that a violation of the provisions of the chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b, the CUTPA statute..

The HIA violations occur because the normally used contract forms don't contain a start and end date, a right of recission, or fail to set forth the entire agreement between the parties. The contractor is normally not a fly by night person but has not consulted an attorney about the requirements of the HIA and is still doing his quotes on proposal forms that his father and grandfather used for years.

What happens is that the parties get into a dispute because the owner is unreasonable or the contractor makes construction errors, or both, and litigation ensues in the form of a mechanics lien foreclosure or a negligent breach of contract suit.

If the contractor is suing for the balance of his fee, the attorney for the owner raises the HIA argument with the contractor who then faces the prospect of not recovering anything because of the provisions of section 20-429(a). Jacques v. All Trades Corporation, 42 Conn.App. 124 (1996) But this does not necessarily mean that the owner is going to get CUTPA damages,because the courts in applying the HIA violation to get to a CUTPA violation require that there be a causal relationship between the HIA violation and the damage to the owner. Scrivani v. Vallombroso, 102 Conn. App. 668 (2007). To be a CUTPA violation the owner must suffer an "ascertainable loss" caused by the HIA violation.

But the problems with the work experienced by the homeowner are rarely a result of the noncompliance with the HIA. Rather they occur because the contractor negligently performs the work, takes shortcuts, applies inferior materials etc. To say that the problems are caused by not having a right of recission doesn't make sense because at the outset of the job both parties want to go forward, and had the right to recind been in the paperwork, it would not have been exercised. To say that the problems were caused by not having a start and end date is not material in many cases, because once the parties make an agreement the contractor wants to start and finish the work asap so he can get paid and go on to the next job. And to say that problems are caused by a contract lacking the complete specifications is usually not the case because the normal homeowner is not sophisticated enough to understand the specifications anyway.

So you are often left with a situation where the violation of the HIA is not

causally related to the owner's injury and the provision of the HIA making its violation a per se CUTPA violation is of no use to the homeowner with respect to the recovery of consequential damages caused by defective work, or section 42-110g damages such as attorney's fees or punitive damages. To get to a CUTPA violation affording the owner CUTPA damages and section 42-110g relief the court is often required to stretch the facts to satisfy the causation requirement. Kronberg Bros., Inc. V. Steele, 72 Conn.App. 53 (2002)

Thus the litigator representing the owner or the contractor needs to be aware that the causation requirement applies to the HIA violation and that it may not necessarily lead to a CUTPA claim. From the contractor's standpoint, the HIA violation my not be as onerous as a first blush appears, unless the owner's attorney can make a Kronberg stretch to try to bring the violation under CUTPA. From the legislature's standpoint, it may not have accomplished what it thought it was doing when it adopted section 20-427(c).