Carolina Casualty Ins. Co. v. Connecticut Solid Surface, LLC

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CAROLINA CASUALTY INSURANCE COMPANY v.
CONNECTICUT SOLID SURFACE, LLC
(AC 43215)
Prescott, Cradle and DiPentima, Js.

Syllabus

The defendant and cross claim plaintiff appealed from the summary judg-
ment rendered in favor of K, the cross claim defendant. K had repre-
sented B Co., a servicing agent for the plaintiff, in a previous breach of
contract action against the defendant. The defendant filed a counter-
claim against B Co. in that action, and both claims subsequently were
dismissed by agreement of the parties. Thereafter, the plaintiff sought
to recover damages from the defendant for breach of contract in connec-
tion with certain unpaid premiums on an insurance policy. After the
trial court granted the defendant’s motion to cite in K as a third-party
defendant, the defendant filed a cross complaint against K for vexatious
litigation in relation to the B Co. action. The court subsequently granted
K’s motion for summary judgment and rendered judgment thereon, and
the defendant appealed to this court. Held that the trial court properly
rendered summary judgment in favor of K on the defendant’s vexatious
litigation claim; the defendant failed to demonstrate the existence of a
genuine issue of material fact regarding whether B Co.’s action had
terminated in its favor, the defendant having failed to present any evi-
dence that tended to demonstrate that fact, and there was undisputed
evidence in the form of the defendant’s admission, which it never sought
to withdraw or amend, that it would not have agreed to a dismissal of
its counterclaim against B Co. if it did not receive in exchange a dismissal
of B Co.’s claim, which constituted a contractual agreement supported
by consideration akin to a negotiated settlement of that action.
Argued February 16—officially released September 14, 2021

Procedural History

Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of New Britain, where the court,
Hon. Joseph M. Shortall, judge trial referee, granted
the defendant’s motion to cite in Howard Kantrovitz as a
third-party defendant; thereafter, the named defendant
filed a cross complaint against Howard Kantrovitz; sub-
sequently, the court, Gleeson, J., granted the motion
for summary judgment filed by Howard Kantrovitz and
rendered judgment thereon, from which the named
defendant appealed to this court. Affirmed.
Taryn D. Martin, with whom, on the brief, was Robert
A. Ziegler, for the appellant (named defendant).
Jane S. Bietz, with whom, on the brief, was Carmine
Annunziata, for the appellee (defendant Howard Kan-
trovitz).
Opinion

PRESCOTT, J. An essential element of a claim of
vexatious litigation is that the prior civil action underly-
ing the claim must have terminated in favor of the
proponent of the claim. See Blake v. Levy, 191 Conn.
257, 263, 464 A.2d 52 (1983). The dispositive issue in
the present appeal is whether a prior action that ended
in the summary dismissal of the action by agreement
of the parties constitutes such a favorable disposition.
We conclude that it does not.
The defendant and cross claim plaintiff, Connecticut
Solid Surface, LLC (CT Solid Surface), appeals from the
summary judgment rendered on its vexatious litigation
cross claim by the court in favor of the cross claim
defendant, Attorney Howard Kantrovitz.1 It claims that
the court improperly concluded that Kantrovitz was
entitled to judgment as a matter of law because CT
Solid Surface had failed to demonstrate the existence
of a genuine issue of material fact regarding whether
the prior action underlying the vexatious litigation cross
claim had terminated in its favor, particularly in light
of undisputed evidence that the parties to the prior
action had reached a settlement that resulted in the
court’s dismissal of that action.2 We affirm the judgment
of the court.
The record before the court established the following
undisputed facts and procedural history. Prior to the
filing of the action underlying the present appeal, Kan-
trovitz, on behalf of his client, Berkley Net Underwrit-
ers, Inc. (Berkley), a servicing agent for Carolina Casu-
alty,3 commenced a civil action against CT Solid Surface
to collect certain unpaid premiums that CT Solid Sur-
face allegedly owed on a workers’ compensation insur-
ance policy issued by Carolina Casualty. See Berkley
Net Underwriters, Inc. v. Connecticut Solid Surface,
LLC, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S. CT Solid Surface filed a
motion to dismiss that prior action, arguing that Berkley
was not the proper party to bring the action because
it was not a legal entity registered to do business in the
state nor was it registered with the insurance commis-
sioner. Although Berkley filed a motion for permission
to substitute Carolina Casualty as the proper party
plaintiff, the court denied that motion.4 CT Solid Surface
thereafter filed a counterclaim against Berkley asserting
violations of the Unauthorized Insurers Act, General
Statutes § 38a-271 et seq., the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq., and the
Connecticut Unfair Insurance Practices Act, General
Statutes § 38a-815 et seq. Berkley filed a motion to dis-
miss the counterclaim in which it argued that (1) the
court lacked subject matter jurisdiction because the
counterclaim was brought against a nonexistent entity,
and (2) the causes of action all fell outside of the appli-
cable statute of limitations. On July 24, 2017, the court,
Young, J., issued notice disposing of the parties’
motions to dismiss without discussing the merits, indi-
cating in its order that each was ‘‘[g]ranted by agree-
ment of the parties.’’
Carolina Casualty commenced the underlying action
against CT Solid Surface on June 30, 2017, seeking the
same unpaid premiums sought in the prior action. The
court granted CT Solid Surface’s motion to cite in Kan-
trovitz as an additional defendant. CT Solid Surface
thereafter filed a cross complaint against Kantrovitz
asserting a claim of vexatious litigation with respect
to the prior action.5 According to CT Solid Surface,
Kantrovitz’ failure to investigate properly whether Berk-
ley was the correct party to maintain the prior action
led to the filing of an unnecessary civil action, against
which CT Solid Surface was required to expend both
time and money to defend.
On February 1, 2019, Kantrovitz filed a motion for
summary judgment on the cross complaint. He argued,
in relevant part, that ‘‘[t]he undisputed material facts,
including [CT Solid Surface’s] own admissions, demon-
strate that the underlying action did not terminate in
favor of [CT Solid Surface]. Rather, the underlying
action was settled by agreement of both parties to dis-
miss their claims against each other.’’ Because a favor-
able termination of the prior action is an essential ele-
ment of a vexatious litigation claim, Kantrovitz argued
that CT Solid Surface’s cross claim failed as a matter
of law.
In support of his argument, Kantrovitz submitted CT
Solid Surface’s responses to the request for admissions
as an exhibit. Part of those responses included CT Solid
Surface’s admission that ‘‘a settlement agreement was
reached in the [prior action], in which the parties agreed
to resolve their claims by mutual releases and both
parties withdrawing their claims.’’ Although it is undis-
puted that mutual releases never were executed and
withdrawals of the complaint and counterclaims were
never filed, Kantrovitz also submitted in support of his
motion for summary judgment a transcript from a hear-
ing in the prior action on the parties’ motions to dismiss,
at which Attorney Jared Alfin, who had replaced Kan-
trovitz as counsel for Berkley and who also represented
Carolina Casualty, appeared and advised the court that
‘‘[t]he parties have spoken about this matter and we
have agreed to have confirmation be e-mailed that both
motions can be granted today.’’6 Moreover, in its
responses to the request for admissions filed in the
present case, CT Solid Surface admitted that it ‘‘would
not have agreed to a dismissal of its counterclaim
against [Berkley] if [CT Solid Surface] did not receive,
in exchange, a dismissal of [Berkley’s] claims against
it.’’ (Emphasis added.)
CT Solid Surface filed an objection to Kantrovitz’
motion for summary judgment. It did not challenge the
validity of the evidence submitted by Kantrovitz, but
only the legal conclusions to be drawn from that evi-
dence. It acknowledged that the law in Connecticut is
that a civil action that ends in a negotiated settlement
is not considered to have terminated in favor of either
party and, thus, cannot support a subsequent vexatious
litigation claim. See Blake v. Levy, supra, 191 Conn.
264. It argued, however, that courts have stated that a
final determination on the merits is not necessary to
satisfy the favorable termination requirement and that
proof of a dismissal or abandonment of a prior action
is sufficient ‘‘so long as the proceeding has terminated
without consideration.’’ DeLaurentis v. New Haven,
220 Conn. 225, 251, 597 A.2d 807 (1991). CT Solid Sur-
face maintained that the only ‘‘negotiated settlement’’
was the one in which the parties agreed to exchange
mutual releases and withdrawals, which never
occurred.
Following a hearing, the trial court granted Kantrov-
itz’ motion for summary judgment on the vexatious
litigation cross claim. It concluded that CT Solid Surface
had not presented any evidence that tended to demon-
strate that the prior action had terminated in its favor
because the undisputed evidence showed that the par-
ties had exchanged consideration for an agreed upon
disposition of the prior action. On the basis of that
conclusion, the court held that CT Solid Surface could
not prove an essential element of its vexatious litigation
claim, and it rendered summary judgment in favor of
Kantrovitz. This appeal followed.
CT Solid Surface claims that the trial court improp-
erly rendered summary judgment in favor of Kantrovitz
on its cross claim for vexatious litigation on the ground
that CT Solid Surface failed to present evidence that
tended to show that the prior action on which it based
its cross claim had terminated in its favor. It essentially
argues that the evidence, properly construed, defini-
tively demonstrates that the prior action terminated in
its favor, or, alternatively, that a genuine issue of mate-
rial fact exists regarding whether the parties entered
into a negotiated settlement. We disagree.
‘‘The fundamental purpose of summary judgment is
preventing unnecessary trials. . . . If a plaintiff is
unable to present sufficient evidence in support of an
essential element of his cause of action at trial, he
cannot prevail as a matter of law. . . . To avert these
types of ill-fated cases from advancing to trial, following
adequate time for discovery, a plaintiff may properly
be called upon at the summary judgment stage to dem-
onstrate that he possesses sufficient counterevidence
to raise a genuine issue of material fact as to any, or even
all, of the essential elements of his cause of action. . . .
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . .
‘‘It is not enough . . . for the opposing party merely
to assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court . . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred. . . . Only if the
defendant as the moving party has submitted no eviden-
tiary proof to rebut the allegations in the complaint, or
the proof submitted fails to call those allegations into
question, may the plaintiff rest upon factual allegations
alone. . . .
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Brown v. Otake,
164 Conn. App. 686, 699–701, 138 A.3d 951 (2016).
We turn next to the law governing claims of vexatious
litigation. ‘‘In Connecticut, the cause of action for vexa-
tious litigation exists both at common law and pursuant
to statute. . . . [T]o establish a claim for vexatious
litigation at common law, one must prove want of prob-
able cause, malice and a termination of suit in the
plaintiff’s favor. . . . The statutory cause of action for
vexatious litigation exists under [General Statutes] § 52-
568, and differs from a common-law action only in that
a finding of malice is not an essential element, but will
serve as a basis for higher damages. . . . In the context
of a claim for vexatious litigation, the defendant lacks
probable cause if he lacks a reasonable, good faith
belief in the facts alleged and the validity of the claim
asserted.’’ (Emphasis added; internal quotation marks
omitted.) MacDermid, Inc. v. Leonetti, 158 Conn. App.
176, 183, 118 A.3d 158 (2015).
With respect to the favorable termination element,
our Supreme Court has explained that ‘‘[c]ourts have
taken three approaches to the ‘termination’ require-
ment. The first, and most rigid, requires that the action
have gone to judgment resulting in a verdict of acquittal,
in the criminal context, or no liability, in the civil con-
text. The second permits a vexatious suit action even
if the underlying action was merely withdrawn so long
as the plaintiff can demonstrate that the withdrawal
took place under circumstances creating an inference
that the plaintiff was innocent, in the criminal context,
or not liable, in the civil context. The third approach,
while nominally adhering to the ‘favorable termination’
requirement, in the sense that any outcome other than
a finding of guilt or liability is favorable to the accused
party, permits a malicious prosecution or vexatious suit
action whenever the underlying proceeding was aban-
doned or withdrawn without consideration, that is,
withdrawn without either a plea bargain or a settlement
favoring the party originating the action.’’ (Emphasis
altered; footnotes omitted.) DeLaurentis v. New Haven,
supra, 220 Conn. 250. Summing up the law as applied
in Connecticut, our Supreme Court stated that ‘‘we have
never required a plaintiff in a vexatious suit action to
prove a favorable termination either by pointing to an
adjudication on the merits in his favor or by showing
affirmatively that the circumstances of the termination
indicated his innocence or nonliability, so long as the
proceeding has terminated without consideration.’’
(Emphasis added.) Id., 251. This comports with the
court’s earlier holding in Blake v. Levy, supra, 191 Conn.
264, that, if ‘‘a lawsuit ends in a negotiated settlement
or compromise, it does not terminate in the plaintiff’s
favor and therefore will not support a subsequent suit
for vexatious litigation. . . . This conclusion recog-
nizes that the law favors settlements, which conserve
scarce judicial resources and minimize the parties’
transaction costs, and avoids burdening such settle-
ments with the threat of future litigation.’’ (Citations
omitted.)
On the basis of our plenary review of the record, we
agree with the conclusion of the court that ‘‘[t]he undis-
puted evidence that the parties exchanged consider-
ation in the disposal of the underlying action clearly
demonstrates that [CT Solid Surface] is unable to prove
the essential element of favorable termination for the
purpose of maintaining a vexatious litigation action.’’
As the court explained in its memorandum of decision,
Kantrovitz provided undisputed evidence concerning
an exchange of consideration between Berkley and CT
Solid Surface. Specifically, Kantrovitz submitted CT
Solid Surface’s responses to his request for admissions.
‘‘Any matter admitted [in response to a request for
admissions] is conclusively established unless the judi-
cial authority on motion permits withdrawal or amend-
ment of the admission.’’ Practice Book § 13-24 (a). CT
Solid Surface never sought to withdraw or to amend
its admissions. Relevant to the issue before us is CT
Solid Surface’s admission that, in the prior action, it
‘‘would not have agreed to a dismissal of its counter-
claim against [Berkley] if [CT Solid Surface] did not
receive, in exchange, a dismissal of [Berkley’s] claims
against it.’’ In other words, CT Solid Surface reached
a mutual agreement with Berkley to stipulate to a dis-
missal of its counterclaim in exchange for Berkley’s
promise to accept a dismissal of its action against CT
Solid Surface. Although CT Solid Surface contends that
it never executed any formal settlement agreement, and
tries to portray what occurred as Berkley voluntarily
agreeing to a dismissal of its complaint, that argument
fails to recognize the legal import of the parties’ agree-
ment. As the trial court indicated in rejecting this argu-
ment, ‘‘[c]onsideration consists of a benefit to the party
promising, or a loss or detriment to the party to whom
the promise is made’’ and an ‘‘exchange of promises is
sufficient consideration . . . .’’ (Citation omitted;
internal quotation marks omitted.) Bilbao v. Goodwin,
333 Conn. 599, 616–17, 217 A.3d 977 (2019). CT Solid
Surface failed to provide any evidentiary support for
its argument that there was a genuine issue of material
fact as to whether a settlement occurred. ‘‘Mere state-
ments of legal conclusions . . . and bald assertions,
without more, are insufficient to raise a genuine issue of
material fact capable of defeating summary judgment.’’
(Internal quotation marks omitted.) CitiMortgage, Inc.
v. Coolbeth, 147 Conn. App. 183, 193, 81 A.3d 1189
(2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014).
In summary, Berkley’s promise to agree to the dis-
missal of its complaint in exchange for CT Solid Sur-
face’s promise to agree to the dismissal of its counter-
claim constituted a contractual agreement supported
by consideration akin to a negotiated settlement of the
action. Because that disposition favored ‘‘the party orig-
inating the action’’; DeLaurentis v. New Haven, supra,
220 Conn. 250; it was not, as a matter of law, a termina-
tion of the action in favor of CT Solid Surface. Accord-
ingly, Kantrovitz was entitled to summary judgment on
the vexatious litigation cross claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The named plaintiff in the action underlying this appeal, Carolina Casu-
alty Insurance Company (Carolina Casualty), is not a party to the cross
complaint that is the subject of the appeal and has not participated in the
present appeal. Although there has not been a final disposition of Carolina
Casualty’s complaint against CT Solid Surface, the court’s disposition of all
counts of the cross complaint nevertheless constitutes an appealable final
judgment. See Practice Book § 61-2.
2
Although we construe CT Solid Surface as having raised a single claim
on appeal, it raises a number of arguments related to that claim, which it
identifies in its brief as distinct claims of error. Specifically, it argues that
the court improperly (1) determined that an exchange of consideration was
relevant to the issue of whether the prior action had terminated in its favor,
(2) concluded that it failed to provide evidentiary support for its assertion
that Kantrovitz had failed to effectuate a settlement of the prior action, and
(3) failed to consider whether the action had been ‘‘voluntarily dismissed’’
after Kantrovitz’ appearance in the prior action was replaced. Our resolution
of these arguments is subsumed in our plenary consideration and rejection
of its claim that the trial court improperly rendered summary judgment.
3
According to the pleadings, a servicing agent underwrites and issues
policies on behalf of the insurer and services policies by conducting audits
and billing for premiums.
4
The court indicated in its order denying the motion that it was not
convinced the action was commenced through mistake; see Practice Book
§ 9-20; and, furthermore, the defendant had filed a counterclaim against the
original plaintiff ‘‘making substitution inappropriate.’’ Berkley Net Under-
writers, Inc. v. Connecticut Solid Surface, LLC, supra, Superior Court,
Docket No. CV-XX-XXXXXXX-S (November 21, 2016).
5
The initial cross complaint contained an additional count sounding in
abuse of process. The court granted a motion to strike both counts of the
cross complaint, agreeing with Kantrovitz that count one failed to state a
claim of vexatious litigation because CT Solid Surface failed to allege that
the prior action had terminated in its favor and that count two failed to
state a claim for abuse of process because CT Solid Surface failed to allege
that the filing of the prior action fell outside the purpose for which legal
process was intended. CT Solid Surface filed an amended cross complaint
with respect to the vexatious litigation count only, and judgment was ren-
dered for Kantrovitz on the abuse of process count.
6
After the court called the case, the following colloquy took place:
‘‘Attorney Alfin: Thank you, Your Honor. Good morning. . . .
‘‘The Court: Yes, sir. There’s a motion to dismiss that’s on?
‘‘Attorney Alfin: Yeah, the defendant’s motion to dismiss, the claim is on
for today. There’s also been filed a motion to dismiss the counterclaim.
The parties have spoken about this matter and we have agreed to have
confirmation be e-mailed that both motions can be granted today.
‘‘The Court: Okay.
‘‘Attorney Alfin: The case will be disposed of.
‘‘The Court: So the entire case would be disposed of?
‘‘Attorney Alfin: Yes, Your Honor.
‘‘The Court: All right. And who did you contact?
‘‘Attorney Alfin: Attorney [Robert] Ziegler, [the attorney for CT Solid
Surface], who we went back and forth via e-mail confirming that.
‘‘The Court: All right. So your representation is that both counsel have
agreed that the motions to dismiss may be granted and that will dispose of
the case?
‘‘Attorney Alfin: Yes, Your Honor.
‘‘The Court: All right. Thank you, sir.
‘‘Attorney Alfin: Thank you, Your Honor.
‘‘The Court: The motions are granted by agreement.’’