Grotto, Inc. v. Liberty Mutual Ins. Co.

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Grotto, Inc. v. Liberty Mutual Ins. Co.

THE GROTTO, INC. v. LIBERTY MUTUAL
INSURANCE COMPANY
(AC 46589)
Bright, C. J., and Alvord and DiPentima, Js.

Syllabus

The plaintiff sought to recover damages for, inter alia, alleged negligent
misrepresentation by the defendant insurance company related to a
workers’ compensation insurance policy. The defendant issued the plain-
tiff a policy in September, 2015. In October, 2015, the defendant issued
a cancellation notice of the policy with an effective cancellation date
of November 3, 2015. After the November 3 date had passed, the defen-
dant sent multiple letters to the plaintiff, some of which indicated that
the policy may be cancelled and others of which indicated that the
policy had been cancelled. An employee of the plaintiff, L, suffered a
compensable injury in May, 2016, and filed a workers’ compensation
claim, and the defendant denied coverage on the basis that the policy
had been cancelled on November 3, 2015. In 2019, following a formal
hearing, a workers’ compensation commissioner concluded that the
policy was still in effect on the date of L’s injury. The defendant appealed
to the Compensation Review Board, which reversed the commissioner’s
decision. The plaintiff appealed the board’s decision to this court, which
affirmed the decision. Thereafter, the plaintiff brought the present case
relating to the defendant’s conduct after the cancellation of the policy.
The trial court granted the defendant’s motion for summary judgment,
concluding that the plaintiff’s action was barred by the doctrine of res
judicata. On the plaintiff’s appeal to this court, held that the trial court
improperly rendered summary judgment for the defendant: the doctrine
of res judicata did not bar the plaintiff’s claims, which related to the
defendant’s conduct following the cancellation of the policy and, thus,
did not fall within the scope of the Workers’ Compensation Act (§ 31-
275 et seq.) and could not have been litigated before the commissioner,
whose limited jurisdiction did not extend to those claims; accordingly,
this court reversed the judgment of the trial court and remanded the
case for further proceedings.
Argued May 22—officially released August 13, 2024

Procedural History

Action to recover damages for, inter alia, the defen-
dant’s alleged negligent misrepresentation, and for
other relief, brought to the Superior Court in the judicial
district of Waterbury, where the court, D’Andrea, J.,
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Grotto, Inc. v. Liberty Mutual Ins. Co.

granted the defendant’s motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Reversed; judgment directed;
further proceedings.
James P. Brennan, for the appellant (plaintiff).
Philip T. Newbury, Jr., for the appellee (defendant).
Opinion

DiPENTIMA, J. The plaintiff employer, The Grotto,
Inc. (Grotto), appeals from the summary judgment ren-
dered by the trial court in favor of the defendant insurer,
Liberty Mutual Insurance Company (Liberty Mutual).
On appeal, Grotto claims that the court improperly con-
cluded that the doctrine of res judicata barred the pres-
ent action. We agree and, accordingly, reverse the judg-
ment of the trial court.
We rely on the following undisputed facts in our
analysis and resolution of the claims on appeal. In Sep-
tember, 2015, Grotto and Liberty Mutual entered into
a contract for workers’ compensation insurance and
Liberty Mutual issued a workers’ compensation insur-
ance policy (policy) to Grotto that was scheduled to
expire on August 20, 2016. On October 13, 2015, Liberty
Mutual issued a cancellation notice with an effective
date of November 3, 2015, as required by General Stat-
utes § 31-348,1 for Grotto’s failure to provide certain self-
audit materials. Liberty Mutual filed the cancellation
1
General Statutes § 31-348 provides in relevant part: ‘‘Every insurance
company writing compensation insurance or its duly appointed agent shall
report in writing or by other means to the chairperson of the Workers’
Compensation Commission, in accordance with rules prescribed by the
chairperson, the name of the person or corporation insured, including the
state, the day on which the policy becomes effective and the date of its
expiration, which report shall be made within fifteen days from the date of
the policy. The cancellation of any policy so written and reported shall not
become effective until fifteen days after notice of such cancellation has
been filed with the chairman. . . .’’
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Grotto, Inc. v. Liberty Mutual Ins. Co.

notice electronically with the National Council on Com-
pensation Insurance (NCCI). After the November 3,
2015 cancellation date had passed, Liberty Mutual sent
letters to Grotto, some of which indicated that the pol-
icy ‘‘may’’ be cancelled if audit materials were not
promptly received and others that indicated that the
policy had been cancelled effective November 3, 2015.

On March 1, 2016, Laurel B. Bellerive, an employee
of Grotto, suffered a traumatic injury to her right hand,
which injury arose out of and in the course of her
employment with Grotto. Bellerive filed a workers’
compensation claim against Grotto, and Liberty Mutual
denied coverage on the basis that the policy had been
cancelled on November 3, 2015.

On May 24, 2019, following a formal hearing, the
Workers’ Compensation Commissioner for the Fifth
District (commissioner)2 found that the cancellation
notice was ineffective and that the policy was in effect
at the time of Bellerive’s injury. Liberty Mutual appealed
to the Compensation Review Board (board) and, on
June 10, 2020, the board reversed the commissioner’s
decision. The board determined that, although there
was sufficient evidence to support the commissioner’s
conclusion that Grotto reasonably believed the policy
was still in effect as late as March, 2016, the commis-
sioner had erred in determining that the policy was still
in effect on March 1, 2016. The board noted that the
2
General Statutes § 31-275d (a) (1), effective as of October 1, 2021, pro-
vides in relevant part that, ‘‘[w]henever the words ‘workers’ compensation
commissioner,’ ‘compensation commissioner,’ or ‘commissioner’ are used
to denote a workers’ compensation commissioner in [several enumerated]
sections of the general statutes, [including sections contained in the Workers’
Compensation Act, General Statutes § 31-275 et seq.] the words ‘administra-
tive law judge’ shall be substituted in lieu thereof . . . .’’
As all events underlying this appeal occurred prior to October 1, 2021,
we will refer to the workers’ compensation commissioner who found that
the policy was in effect at the time of Bellerive’s injury as the commissioner.
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Grotto, Inc. v. Liberty Mutual Ins. Co.

commissioner wrongly concluded that (1) the cancella-
tion was ineffective because it was not served by certi-
fied mail and, therefore, it did not comply with the
relevant statutory requirements and (2) the commis-
sioner was free to look beyond the NCCI filings to
evidence that showed that the policy remained in force
because Liberty Mutual had sent inconsistent communi-
cations to Grotto, which caused it to believe the policy
was still in place. In addressing these erroneous conclu-
sions, the board first determined that reporting insur-
ance cancellation to the electronic reporting system of
the NCCI was sufficient to satisfy the requirements of
General Statutes (Rev. to 2015) § 31-321.3 The board
further noted that ‘‘§ 31-348 provides that the insurer
must give written notice to the commission (in this case
through NCCI), and that cancellation will be effective
fifteen days after it is filed with the chair[person] of
the commission’’ and further stated that, ‘‘beyond filing
such a notice, there are no other requirements to effec-
tuate cancellation’’ and that the employer’s subjective
belief regarding cancellation is immaterial. The board
stated that the only proper time period for the commis-
sioner to consider the communications between Liberty
Mutual and Grotto following the notice of cancellation
was within fifteen days of the notice. Because Liberty
Mutual did not rescind the cancellation nor were there
any communications between Liberty Mutual and
Grotto during that time frame, the policy was cancelled
effective November 3, 2015.
Grotto appealed the board’s decision to the Appellate
Court. Bellerive v. Grotto, Inc., 206 Conn. App. 702, 260
3
General Statutes (Rev. to 2015) § 31-321 provides in relevant part: ‘‘Unless
otherwise specifically provided, or unless the circumstances of the case or
the rules of the commission direct otherwise, any notice required under
this chapter to be served upon an employer, employee or commissioner
shall be by written or printed notice, service personally or by registered or
certified mail addressed to the person upon whom it is to be served at the
person’s last-known residence or place of business. . . .’’
All references herein to § 31-321 are to the 2015 revision of the statute.
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Grotto, Inc. v. Liberty Mutual Ins. Co.

A.3d 1228, cert. denied, 339 Conn. 908, 260 A.3d 483
(2021). In affirming the decision of the board, this court
reasoned that, ‘‘[b]ecause Liberty [Mutual] was not
required to notify Grotto before cancelling its workers’
compensation policy, the only pertinent issue with
respect to the effectiveness of Liberty [Mutual’s] cancel-
lation is whether Liberty [Mutual’s] electronic notice
to the NCCI pursuant to § 31-348 was sufficient in light
of the requirements of § 31-321. We conclude that Lib-
erty [Mutual’s] electronic notice to the NCCI was suffi-
cient.’’ Id., 708. This court rejected Grotto’s argument
that the commissioner had authority to decide the com-
mon-law issues including negligence and misrepresen-
tation that Grotto claimed supported the commission-
er’s finding that the policy was in effect on March 1,
2016. Id., 709. In rejecting Grotto’s argument, this court
reasoned that, because the policy ‘‘was cancelled effec-
tively prior to the date of loss, and because an employ-
er’s understanding as to when coverage terminated is
largely irrelevant . . . common-law theories cannot
support a finding that coverage was in place on the
date of loss under the facts of this case. . . . [W]e are
not persuaded that the allegedly inconsistent letters
sent by Liberty [Mutual] in the months following the
notice of cancellation could support a conclusion that
the coverage under the policy actually did continue,
notwithstanding the November cancellation notice.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 709–11. This court noted that it
was not necessary to determine whether the commis-
sioner had jurisdiction to determine common-law
issues. Id., 709 n.7.
In October, 2017, Grotto commenced the present
action. In its four count complaint, Grotto alleged negli-
gent misrepresentation, negligence, violation of the
Connecticut Unfair Insurance Practices Act (CUIPA),
General Statutes § 38a-815 et seq., and violation of the
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Grotto, Inc. v. Liberty Mutual Ins. Co.

Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq. Liberty Mutual filed a
motion for summary judgment, arguing that the doc-
trine of res judicata bars relitigation of whether the
policy was effectively cancelled prior to the date of
Bellerive’s injury. Grotto filed an opposition arguing
that the cancellation of the policy was not at issue in
the complaint, but, rather, at issue was Liberty Mutual’s
conduct after the cancellation of the policy.
In rendering summary judgment in favor of the defen-
dant, the court concluded that the present action was
barred by the doctrine of res judicata. This appeal fol-
lowed.
We begin with the relevant law and standard of
review. ‘‘Summary judgment is a method of resolving
litigation when pleadings, affidavits, and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . The motion for
summary judgment is designed to eliminate the delay
and expense of litigating an issue when there is no real
issue to be tried. . . . However, since litigants ordi-
narily have a constitutional right to have issues of fact
decided by a jury . . . the moving party for summary
judgment is held to a strict standard . . . of demonstra-
ting his entitlement to summary judgment.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,
306 Conn. 523, 535, 51 A.3d 367 (2012). ‘‘[S]ummary
judgment [is an] appropriate method for resolving a
claim of res judicata.’’ Jackson v. R. G. Whipple, Inc.,
225 Conn. 705, 712, 627 A.2d 374 (1993).
‘‘[T]he doctrine of res judicata, or claim preclusion,
[provides that] a former judgment on a claim, if ren-
dered on the merits, is an absolute bar to a subsequent
action [between the same parties or those in privity
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Grotto, Inc. v. Liberty Mutual Ins. Co.

with them] on the same claim. A judgment is final not
only as to every matter which was offered to sustain
the claim, but also as to any other admissible matter
which might have been offered for that purpose. . . .
The rule of claim preclusion prevents reassertion of the
same claim regardless of what additional or different
evidence or legal theories might be advanced in support
of it. . . . In order for res judicata to apply, four ele-
ments must be met: (1) the judgment must have been
rendered on the merits by a court of competent jurisdic-
tion; (2) the parties to the prior and subsequent actions
must be the same or in privity; (3) there must have
been an adequate opportunity to litigate the matter fully;
and (4) the same underlying claim must be at issue.’’
(Emphasis omitted; internal quotation marks omitted.)
Girolametti v. Michael Horton Associates, Inc., 332
Conn. 67, 75, 208 A.3d 1223 (2019).
Grotto argues on appeal that the third and fourth
elements of res judicata were not satisfied, but we need
only focus on the third element—that is, an adequate
opportunity to litigate the matter fully. The narrow issue
before the commissioner and the board was whether
the policy had been cancelled pursuant to the relevant
statutes prior to the date of Bellerive’s injury.4 The
board noted that, although the conflicting letters from
Liberty Mutual to Grotto following the effective date
of the cancellation may have led Grotto to believe that
the coverage was still in place, those letters could not
support a conclusion that the coverage continued
because, pursuant to Yelunin v. Royal Ride Transpor-
tation, 121 Conn. App. 144, 994 A.2d 305 (2010), Grotto’s
In determining that res judicata applied to bar Grotto’s claims, the court
4

noted that ‘‘Grotto points to the case before the commissioner and the
[board]. The proper comparison should be to this second action and the
previous matter before the Appellate Court as action one, and the issues
that were raised and decided in that forum.’’ We disagree with this approach
and note that the appeal to this court from the board’s ruling was restricted
to the issues and record before the board.
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Grotto, Inc. v. Liberty Mutual Ins. Co.

subjective belief is immaterial.5 The board further stated
that ‘‘[t]he sole question before the commissioner was
whether the policy’s coverage remained in force after
the November, 2015 cancellation’’ and that, in deciding
that question, the board looked to whether there was
evidence, within the statutory fifteen day period follow-
ing the notice of cancellation, that Liberty Mutual
intended to continue coverage. The board further noted
that ‘‘[w]hether Liberty [Mutual] was justified in cancel-
ling its policy, or whether it breached its contract with
Grotto by doing so, are questions that must be deter-
mined in another forum. If the cancellation was legally
completed and there had not been a reinstatement of
this policy (be it documented with NCCI or not), our
commission lacks the ability to adjudicate these dis-
putes.’’ Accordingly, the board made clear that the nar-
row issue before it was whether the policy was can-
celled effectively pursuant to §§ 31-321 and 31-348. It
did not consider any causes of action related to Liberty
Mutual’s conduct following the effective date of the
cancellation.
Although the board did not consider the claims raised
by Grotto in its complaint in the present action, that
does not end our analysis. ‘‘Res judicata bars the reliti-
gation of claims actually made in the prior action as
well as any claims that might have been made there.
. . . Public policy supports the principle that a party
should not be allowed to relitigate a matter which it
5
In Yelunin v. Royal Ride Transportation, supra, 121 Conn. App. 144,
this court stated that the ‘‘[c]ancellation of a workers’ compensation insur-
ance policy occurs in accordance with § 31-348’’ and held that ‘‘[t]he only
precondition to effective cancellation contained in § 31-348 is that an insurer
provide notification to the chair[person] of the workers’ compensation com-
mission. . . . Indeed, § 31-348 has been interpreted as protecting employees
or anyone examining coverage records in the commissioner’s office. In that
regard, an employer’s understanding as to when coverage terminated is
largely irrelevant . . . .’’ (Emphasis omitted; internal quotation marks omit-
ted.) Id., 149.
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Grotto, Inc. v. Liberty Mutual Ins. Co.

already has had an opportunity to litigate.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Wheeler v. Beachcroft, LLC, 320 Conn. 146,
157, 129 A.3d 677 (2016).
Grotto could not have litigated its claims of negligent
misrepresentation, negligence, and violations of CUTPA
and CUIPA because the commissioner’s limited jurisdic-
tion does not extend to those claims. ‘‘The primary
statutory provision establishing the subject matter juris-
diction of the commissioner is General Statutes . . .
§ 31-278. [That statute] provides in relevant part that
each commissioner shall have all powers necessary to
enable him to perform the duties imposed upon him by
the provisions of [the Workers’ Compensation Act (act),
General Statutes § 31-275 et seq.]. . . . [Each commis-
sioner] shall have jurisdiction of all claims and ques-
tions arising . . . under [the act] . . . . Administra-
tive agencies are tribunals of limited jurisdiction and
their jurisdiction is dependent entirely upon the validity
of the statutes vesting them with power and they cannot
confer jurisdiction upon themselves. . . . Long ago,
we said that the jurisdiction of the [workers’ compensa-
tion] commissioners is confined by the [a]ct and limited
by its provisions. Unless the [a]ct gives the [c]ommis-
sioner the right to take jurisdiction over a claim, it
cannot be conferred upon [the commissioner] by the
parties either by agreement, waiver or conduct. . . .
The authority given by the legislature is carefully cir-
cumscribed and jurisdiction under the act is clearly
defined and limited to what are clearly the legislative
concerns in this remedial statute. . . . A commissioner
may exercise jurisdiction to hear a claim only under the
precise circumstances and in the manner particularly
prescribed by the enabling legislation. . . . Because
of the statutory nature of our workers’ compensation
system, policy determinations as to what injuries are
compensable and what jurisdictional limitations apply
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Grotto, Inc. v. Liberty Mutual Ins. Co.

thereto are for the legislature, not the judiciary or the
board, to make.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Del Toro v. Stam-
ford, 270 Conn. 532, 540–42, 853 A.2d 95 (2004).
‘‘[C]ompensability, in terms of whether a type of
injury falls within the scope of the act, is a jurisdictional
fact . . . . Consequently, if a claimed injury does not
fall within one of the compensable personal injury cate-
gories under the act, then the commissioner does not
have jurisdiction over the claim.’’ Id., 547. ‘‘Because
of the statutory nature of our workers’ compensation
system, policy determinations as to what injuries are
compensable and what jurisdictional limitations apply
thereto are for the legislature, not the judiciary or the
board, to make.’’ (Internal quotation marks omitted.)
Stickney v. Sunlight Construction, Inc., 248 Conn. 754,
761, 730 A.2d 630 (1999).
In the present action, Grotto claims: (1) Liberty
Mutual knew or should have known that the letters sent
to Grotto following the notice of cancellation were false
and that those false representations induced Grotto to
believe the policy was still in effect on the date of
Bellerive’s injury (negligent misrepresentation); (2) Lib-
erty Mutual negligently sent conflicting notices follow-
ing the notice of cancellation that resulted in Grotto
being liable for Bellerive’s workers’ compensation claim
(negligence); (3) Liberty Mutual misrepresented the
condition and/or terms of the policy thereby inducing
Grotto to take no further action so that the policy would
lapse (CUIPA); and (4) Liberty Mutual’s aforementioned
conduct violated CUTPA.
None of the claims raised by Grotto in its complaint
falls within the scope of the act. ‘‘The act authorizes
the commissioner to award workers’ compensation
benefits only for personal injuries. . . . Section 31-275
(16) defines the term personal injury as follows: (A)
Personal injury or injury includes, in addition to acci-
dental injury which may be definitely located as to the
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Grotto, Inc. v. Liberty Mutual Ins. Co.

time when and the place where the accident occurred,
an injury to an employee which is causally connected
with [the employee’s] employment and is the direct
result of repetitive trauma or repetitive acts incident
to such employment, and occupational disease. . . .
Accordingly, an injury that does not fall within the defi-
nition of personal injury, as defined by § 31-275 (16),
is not compensable under the act.’’ (Citation omitted;
internal quotation marks omitted.) Del Toro v. Stam-
ford, supra, 270 Conn. 545.
The injuries claimed in this action relate to Liberty
Mutual’s conduct following the cancellation of the pol-
icy. Those claims do not allege a personal injury com-
pensable under the act and they differ from traditional
claims adjudicated under the act because they involve
questions of misrepresentations and negligence by an
insurance provider as to the employer, the resolution
of which requires the application of laws that are not
part of the act. See Stickney v. Sunlight Construction,
Inc., supra, 248 Conn. 762 (act did not establish jurisdic-
tion over contract claim concerning insurance cover-
age, or, ‘‘[p]ut more generally, resolving the central
issue in the motion requires application of laws other
than the provisions of the act’’). Accordingly, the com-
missioner had no jurisdiction to address Grotto’s com-
mon-law claims.
The trial court stated that Powell v. Infinity Ins. Co.,
282 Conn. 594, 922 A.2d 1073 (2007), provided it with
‘‘clear guidance’’ as to the ‘‘proper outcome’’ of Liberty
Mutual’s motion for summary judgment. In Powell, our
Supreme Court held that res judicata barred the insured/
plaintiffs’ claims of bad faith, breach of contract and
violations of CUTPA/CUIPA because those claims grew
out of the same transaction or nucleus of facts impli-
cated in the prior contract action for uninsured motorist
benefits. Powell v. Infinity Ins. Co., supra, 596. The
present case is strikingly dissimilar to Powell, however,
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Grotto, Inc. v. Liberty Mutual Ins. Co.

in that Powell involved two actions brought in the Supe-
rior Court, whereas the present case concerns an action
brought in the Superior Court and an action brought
before the Workers’ Compensation Commission. Our
Supreme Court in Powell stated that ‘‘[t]he doctrines
of preclusion . . . should be flexible and must give
way when their mechanical application would frustrate
other social policies based on values equally or more
important than the convenience afforded by finality in
legal controversies. . . . Accordingly, on occasion, we
have recognized exceptions to the general policy
favoring application of the doctrines of res judicata and
collateral estoppel. In establishing exceptions to the
general application of the preclusion doctrines, we have
identified several factors to consider, including . . .
whether the opportunity to litigate the claim or issue
differs as between the two forums . . . .’’ (Citations
omitted; internal quotation marks omitted.) Id., 602–
603. Here, Grotto was unable to litigate its claims of
negligent misrepresentation, negligence and CUTPA/
CUIPA violations before the commission and the board.
As such, res judicata does not apply to bar those claims
in the Superior Court. See id.; see also Connecticut
Natural Gas Corp. v. Miller, 239 Conn. 313, 323, 684
A.2d 1173 (1996) (doctrine of res judicata does not apply
to preclude defendants’ counterclaims in second action
when prior statutory hearing severely limited opportu-
nity to present evidence in support of counterclaims,
rendering defendants unable to fully litigate them in
that forum without violating statute). For the foregoing
reasons, the court incorrectly concluded that res judi-
cata bars the present action. Accordingly, it improperly
rendered summary judgment in favor of Liberty Mutual.
The judgment is reversed and the case is remanded
with direction to render judgment denying the defen-
dant’s motion for summary judgment and for further
proceedings according to law.
In this opinion the other judges concurred.