Pascola-Milton v. Millard

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                 DIANA PASCOLA-MILTON v.
                  LEROY MILLARD ET AL.
                        (AC 43011)
                    Prescott, Cradle and DiPentima, Js.

                                  Syllabus

The plaintiff D sought to recover damages from the defendant L Co., her
    insurer, for underinsured motorist benefits, and from the defendant M,
    for M’s alleged negligence in connection with a motor vehicle accident
    involving D. D’s husband, C, joined the action as a party plaintiff more
    than two years after D commenced the action. D entered into a voluntary
    arbitration agreement with L Co., and, after an evidentiary hearing, the
    arbitrator awarded D a certain amount of damages in underinsured
    motorist benefits. D filed a demand for a trial de novo with the trial
    court, which was denied. Additionally, M moved for summary judgment
    on C’s claims against him on the ground that they were barred by the
    two year statute of limitations (§ 52-584) for negligence claims. The trial
    court granted M’s motion for summary judgment. D and C filed a joint
    appeal to this court challenging the trial court’s denial of D’s demand
    for a trial de novo and the judgment for M on C’s complaint. Held:
1. The trial court did not err in denying D’s demand for a trial de novo
    following the arbitrator’s decision on her claims against L Co., as the
    parties entered into a voluntary arbitration; the trial court determined
    that the submission was voluntary and unrestricted, and, because D
    voluntarily submitted her claims against L Co. to arbitration, any review
    of the arbitrator’s decision was governed by a statute (§ 52-418) under
    which there was no right to a trial de novo, and the legal authority
    pursuant to which D argued that she had an absolute right to a trial de
    novo pertained to compulsory, not voluntary, arbitration.
2. The trial court did not err in rendering summary judgment in favor of M
    on the ground that C’s claims were barred by the two year statute of
    limitations in § 52-584 because C suffered actionable harm on the date
    of the accident and he did not file his complaint against M within two
    years from that date; in arguing that his claims were not subject to the
    two year statute of limitations in § 52-584, but rather the three year
    statute of repose under § 52-584, C baldly asserted that he did not
    discover any actionable harm until two years after the accident, which
    was belied by C’s allegation that he arrived at the scene of the accident
    shortly after it occurred and suffered shock viewing D’s condition and
    the condition of the car, and it could not reasonably be disputed that
    any alleged injury to C was first sustained on the date of the accident
    when he first observed D’s injuries.
      Argued November 17, 2020—officially released March 9, 2021

                             Procedural History

   Action to recover damages for personal injuries sus-
tained as a result of, inter alia, the named defendant’s
alleged negligence, and for other relief, brought to the
Superior Court in the judicial district of Litchfield,
where the matter was transferred to the judicial district
of Danbury; thereafter, the court, Shaban, J., granted
the motion of Clive Milton to be made a party plaintiff;
subsequently, the named plaintiff withdrew her action
as to the named defendant; thereafter, the named plain-
tiff withdrew her action as to the defendant Liberty
Mutual Fire Insurance Company; subsequently, the
court, D’Andrea, J., denied the named plaintiff’s
demand for a trial de novo; thereafter, the court, D’An-
drea, J., granted the named defendant’s motion for sum-
mary judgment as to the plaintiff Clive Milton and ren-
dered judgment thereon, and the plaintiffs filed a joint
appeal to this court. Affirmed.
  Diana Michele Pascola-Milton, self-represented, the
appellant (plaintiff).
  Clive Milton,     self-represented,   the   appellant
(plaintiff).
  John W. Cannavino, Jr., for the appellee (named
defendant).
 Bryan J. Haas, for the appellee (defendant Liberty
Mutual Fire Insurance Company).
                         Opinion

  CRADLE, J. In this case arising from a motor vehicle
accident between the plaintiff Diana Pascola-Milton and
the named defendant, Leroy Millard, Pascola-Milton
appeals from the judgment of the trial court denying
her demand for a trial de novo following an arbitration
award in her favor against her insurer, the defendant
Liberty Mutual Fire Insurance Company (Liberty), for
underinsured motorist benefits. Pascola-Milton argues
that she has an absolute right to a trial de novo.1 Clive
Milton, Pascola-Milton’s husband and coplaintiff,
appeals from the summary judgment rendered in favor
of Millard on Milton’s derivative claims for loss of con-
sortium, bystander emotional distress and negligent
infliction of emotional distress.2 Milton claims that the
court erred in rendering summary judgment in favor of
Millard on the ground that those claims were barred
by the applicable statute of limitations because Milton’s
complaint was filed more than two years after the motor
vehicle accident. We affirm the judgment of the trial
court.
   The following procedural history is relevant to this
appeal. On November 29, 2014, Pascola-Milton was
injured in a two car motor vehicle accident involving
Millard. On July 6, 2016, she commenced this action,
asserting a negligence claim against Millard, and a claim
for underinsured motorist benefits against Liberty.
  On October 17, 2017, Milton filed a motion to join
this action as a party plaintiff, and that motion was
granted on November 30, 2017. In his operative com-
plaint, Milton asserted claims for loss of consortium,
bystander emotional distress, and negligent infliction
of emotional distress against Millard. He also asserted,
inter alia, claims for loss of consortium and bystander
emotional distress against Liberty, in addition to claims
for intentional infliction of emotional distress, underin-
sured motorist benefits, violations of the Connecticut
Unfair Insurance Practices Act (CUIPA), General Stat-
utes § 38a-815 et seq., and the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq.3
  On March 16, 2018, Pascola-Milton withdrew her
action as to Millard after he accepted her offer of com-
promise. On August 20, 2018, she entered into a volun-
tary arbitration agreement with Liberty. An evidentiary
hearing was held before the arbitrator on January 3,
2019, and Pascola-Milton withdrew her complaint
against Liberty on January 14, 2019. On January 30,
2019, the arbitrator issued a decision awarding Pascola-
Milton $72,635 in damages.
  On February 11, 2019, Pascola-Milton filed a demand
for a trial de novo, which stated: ‘‘Pursuant to [Practice
Book] [§] 23-66 (c) . . . [and General Statutes §§] 52-
549z and 52-549aa . . . [Pascola-Milton] hereby
appeals from the arbitrator’s decision and claims the
matter for a trial de novo in accordance with the rules.’’
On March 21, 2019, the trial court, D’Andrea, J., denied
her demand, finding that there was no statutory right
to a trial de novo on an unrestricted voluntary submis-
sion to arbitration. On April 5, 2019, Pascola-Milton
filed a motion to reargue and for reconsideration of the
court’s denial of her demand for a trial de novo. On
April 29, 2019, the court, Krumeich, J., denied Pascola-
Milton’s motion.
  Meanwhile, on January 9, 2019, Millard moved for
summary judgment on Milton’s claims against him on
the ground that those claims were barred by the two
year statute of limitations set forth in General Statues
§ 52-584. After Milton timely objected and the court,
D’Andrea, J., heard oral argument from the parties, the
court issued a memorandum of decision dated April 22,
2019, granting Millard’s motion for summary judgment
on all of the counts directed against him in Milton’s
complaint on the ground that Milton’s claims were
barred by the statute of limitations.
   On June 3, 2019, Pascola-Milton and Milton filed this
joint appeal challenging the denial of Pascola-Milton’s
demand for a trial de novo and the judgment for Millard
on Milton’s complaint.
                             I
  Pascola-Milton claims that the trial court erred in
denying her demand for a trial de novo following the
arbitrator’s decision on her claims against Liberty. Pas-
cola-Milton argues that she had an ‘‘absolute right’’ to
a trial de novo. We disagree.
   In addressing Pascola-Milton’s demand for a trial de
novo, the trial court set forth the following additional
relevant facts. ‘‘On February 11, 2019 . . . Pascola-Mil-
ton filed the present motion for a demand for trial de
novo. [Pascola-Milton’s] motion alleges that pursuant
to Practice Book § 23-66 (c) . . . and . . . §§ 52-549z
and 52-549aa, [she] is appealing the arbitrator’s decision
and requests the court schedule a trial de novo. By way
of background, [Pascola-Milton] and [Liberty] executed
a voluntary submission entitled ‘Arbitration Agreement’
(agreement) in August, 2018. In the opening paragraph
of the agreement, it states: ‘[T]he parties agree to submit
all claims to a final and binding arbitration before Attor-
ney Richard Mahoney as arbitrator.’ The agreement fur-
ther states: ‘11. The parties agree that the arbiter will be
asked to determine liability and fair, just and reasonable
damages . . . . 13. The Arbitrator shall resolve all dif-
ferences and disputes between the parties . . . . [And
finally] 17. The award shall be final, binding and not
subject to review or appeal, except as provided by Con-
necticut Arbitration Statutes.’ ’’
  The court denied Pascola-Milton’s demand for a trial
de novo, reasoning: ‘‘In the present matter, if the agree-
ment was not subject to compulsory arbitration, but
was a voluntary submission, a trial de novo is not war-
ranted. The demand for trial de novo can only be made
if the arbitration was compulsory pursuant to General
Statutes § 52-549u. Based on the foregoing, the court
finds that this agreement was clearly an unrestricted
voluntary submission, and thus, not subject to an ability
to seek a trial de novo. There is clearly no provision in
§ 52-549u that allows for a trial de novo for a voluntary
submission to arbitration.’’
   Pascola-Milton argues that she had an absolute right
to a trial de novo following the arbitrator’s decision on
her claims against Liberty. The standard of review for
arbitration awards is determined by whether the arbitra-
tion was compulsory or voluntary. ‘‘Where the parties
have voluntarily and contractually agreed to submit
to arbitration and have delineated the powers of the
arbitrator through their submission, then the scope of
judicial review of the award is limited by the terms of
the parties’ agreement and by the provisions of General
Statutes § 52-418. . . . Thus, in determining whether
an arbitrator has exceeded his authority or improperly
executed the same under § 52-418 (a), the courts need
only examine the submission and the award to deter-
mine whether the award conforms to the submission.
. . . Under an unrestricted submission, the arbitrators’
decision is considered final and binding; thus the courts
will not review the evidence considered by the arbitra-
tors nor will they review the award for errors of law
or fact. . . .
   ‘‘Such a limited scope of judicial review is warranted
given the fact that the parties voluntarily bargained for
the decision of the arbitrator and, as such, the parties
are presumed to have assumed the risks of and waived
objections to that decision. . . . It is clear that a party
cannot object to an award which accomplishes pre-
cisely what the [arbitrator was] authorized to do merely
because that party dislikes the results. . . . Thus . . .
the parties should be bound by a decision that they
contracted and bargained for, even if it is regarded as
unwise or wrong on the merits.’’ (Citations omitted.)
American Universal Ins. Co. v. DelGreco, 

205 Conn. 178

, 185–87, 

530 A.2d 171

(1987).
   Here, the trial court determined that the submission
in this case was voluntary and unrestricted. Pascola-
Milton has not challenged that determination, nor could
she reasonably do so because, as noted by the trial
court, the parties voluntarily contracted to submit their
issues to arbitration, and the arbitration agreement pro-
vided, inter alia, that the arbitrator would resolve all
differences and disputes between them. The legal
authority pursuant to which Pascola-Milton argues that
she had an absolute right to a trial de novo, specifically
§ 52-549z and Practice Book § 23-66 (c), pertains to
compulsory arbitration, not voluntary arbitration.
Because Pascola-Milton voluntarily submitted her
claims against Liberty to arbitration, any review of the
arbitrator’s decision is governed by § 52-418, under
which there is no right to a trial de novo. Accordingly,
Pascola-Milton’s challenge to the denial of her demand
for a trial de novo is unavailing.
                            II
   Milton claims that the court erred in rendering sum-
mary judgment in favor of Millard on the ground that
his claims are barred by the two year statute of limita-
tions set forth in § 52-584. He contends that his claims
are subject to the three year statute of repose contained
in § 52-584. We disagree.4
   Our review of a trial court’s decision granting a
motion for summary judgment is well established.
‘‘Practice Book § [17-49] requires that judgment shall
be rendered forthwith if the 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. A material
fact is a fact that will make a difference in the result
of the case. . . . The facts at issue are those alleged
in the pleadings. . . . The party seeking summary judg-
ment has the burden of showing the absence of any
genuine issue as to all material facts, which, under
applicable principles of substantive law, entitle him to
a judgment as a matter of law. . . . The party opposing
such a motion must provide an evidentiary foundation
to demonstrate the existence of a genuine issue of mate-
rial fact. See Practice Book §§ [17-44 and 17-45]. In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to
the nonmoving party. . . . The test is whether a party
would be entitled to a directed verdict on the same
facts. . . . Our review of the trial court’s decision to
grant a motion for summary judgment is plenary. . . .
   ‘‘Summary judgment may be granted where the claim
is barred by the statute of limitations.’’ (Internal quota-
tion marks omitted.) Wojtkiewicz v. Middlesex Hospi-
tal, 

141 Conn. App. 282

, 285–86, 

60 A.3d 1028

, cert.
denied, 

308 Conn. 949

, 

67 A.3d 291

(2013). ‘‘The determi-
nation of which, if any, statute of limitations applies to
a given action is a question of law over which our review
is plenary.’’ Government Employees Ins. Co. v. Barros,

184 Conn. App. 395

, 398, 

195 A.3d 431

(2018).
  Here, the trial court held that the two year limitation
set forth in § 52-584 applied to Milton’s claims against
Millard.5 Section 52-584 provides in relevant part: ‘‘No
action to recover damages for injury to the person . . .
shall be brought but within two years from the date
when the injury is first sustained or discovered or in
the exercise of reasonable care should have been dis-
covered, and except that no such action may be brought
more than three years from the date of the act or omis-
sion complained of . . . .’’
   This court has explained that ‘‘this statute imposes
two specific time requirements on plaintiffs. The first
requirement, referred to as the discovery portion . . .
requires a plaintiff to bring an action within two years
from the date when the injury is first sustained or dis-
covered or in the exercise of reasonable care should
have been discovered . . . . The second provides that
in no event shall a plaintiff bring an action more than
three years from the date of the act or omission com-
plained of. . . . The three year period specifies the
time beyond which an action under § 52-584 is abso-
lutely barred, and the three year period is, therefore, a
statute of repose.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Wojtkiewicz v. Middlesex Hospi-

tal, supra

, 

141 Conn. App. 286

–87. ‘‘When applying § 52-
584 to determine whether an action was timely com-
menced, this court has held that an injury occurs when
a party suffers some form of actionable harm. . . .
Actionable harm occurs when the plaintiff discovers
. . . that he or she has been injured and that the defen-
dant’s conduct caused such injury. . . . The statute
begins to run when the plaintiff discovers some form
of actionable harm, not the fullest manifestation
thereof. . . . The focus is on the plaintiff’s knowledge
of facts, rather than on discovery of applicable legal
theories.’’ (Internal quotation marks omitted.)

Id., 287.

   Here, the facts pertaining to the statute of limitations
are undisputed. The motor vehicle accident that caused
Pascola-Milton’s injuries, and from which Milton’s
alleged injuries are derived, occurred on November 29,
2014. Although Pascola-Milton commenced this action
in July, 2016, within two years of the date of the accident
in this case, Milton did not seek to join it until October,
2017, beyond that two year time period. Milton argues
that his claims are not subject to the two year statute
of limitations set forth in § 52-584, but, rather, that they
are governed by the three year statute of repose set
forth in that statute.6 In support of this contention,
Milton baldly asserts that ‘‘in the exercise of reasonable
care, [he] did not discover, was unable to determine
if he had actionable harm until two years after the
underlying case bodily injury claim by his wife.’’ This
assertion is belied by Milton’s allegation that he arrived
at the scene of Pascola-Milton’s accident shortly after
it occurred, and ‘‘suffered shock viewing his wife’s con-
dition and the condition of the car, which he photo-
graphed before it was altered in any way.’’ Milton’s
claims against Millard stem from allegations of Millard’s
negligent or reckless conduct that caused the accident
with Pascola-Milton and derive from the personal injury
sustained by Pascola-Milton. It, therefore, cannot rea-
sonably be disputed that any alleged injury to Milton
was first sustained on the date of the accident, when
he first observed his wife’s injuries. Because Milton
suffered actionable harm on the date of the accident,
and he did not file his complaint against Millard within
two years from that date, his claims are barred by the
statute of limitations. Accordingly, we conclude that
the court properly rendered summary judgment in favor
of Millard on Milton’s claims against him.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     In February, 2019, Pascola-Milton commenced a separate action by filing
an application to vacate the arbitration award, which the trial court, Kru-
meich, J., denied on May 16, 2019. See Pascola-Milton v. Liberty Mutual
Fire Ins. Co., Superior Court, judicial district of Danbury, Docket No. CV-
XX-XXXXXXX-S. In that action, she sought to subpoena the arbitrator for a
hearing, but Judge Krumeich denied her request. In this appeal, she appears
to challenge rulings issued in that action when she claims that the trial
court erred in denying (1) her motion to vacate the arbitration award, (2)
her request to enter the arbitrator’s decision into evidence, and (3) her
request to subpoena the arbitrator. Because those rulings were not issued
in this case, Pascola-Milton’s claims challenging them are not reviewable
in this appeal.
   2
     Milton also asserted claims against Liberty, including claims for underin-
sured motorist benefits, and violations of 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. On January 17,
2019, Liberty moved for summary judgment on the ground that, because
Milton’s claims against Millard were time barred, so too were his claims
against Liberty. On June 10, 2019, the court, Krumeich, J., issued a memoran-
dum of decision granting Liberty’s motion for summary judgment. The plain-
tiffs filed a joint amended appeal form challenging that judgment, but the
appellate clerk returned that filing as defective because it was e-filed using
an incorrect document type or path. Milton never filed a corrected amended
appeal form challenging the June 10, 2019 judgment for Liberty, as required
by Practice Book § 61-9. Because Milton failed to amend this appeal to
challenge Judge Krumeich’s ruling granting summary judgment for Liberty,
his claim challenging that judgment is unreviewable. See Jewett v. Jewett,

265 Conn. 669

, 673 n.4, 

830 A.2d 193

(2003) (declining to review defendant’s
claim challenging trial court’s postjudgment order because defendant did
not file amended appeal as required by Practice Book § 61-9); Brown v.
Brown, 

190 Conn. 345

, 350–51, 

460 A.2d 1287

(1983).
   3
     Milton also asserted CUIPA and CUTPA claims against Millard’s insurer,
Government Employees Insurance Company (GEICO). GEICO did not file
an appearance in this action. Milton did not move to default GEICO for its
failure to appear, and there has been no judgment entered as to Milton’s
claims against GEICO. Accordingly, Milton’s claims against GEICO are not
before us in this appeal.
   4
     Milton also argues that the court erred in granting summary judgment
because it had previously denied ‘‘motions to dismiss and motions to strike’’
in which the defendants made ‘‘exactly the same argument’’ regarding the
two year statute of limitations. It is not clear from Milton’s brief whether
he is referring to the summary judgment rendered in favor of Millard or
Liberty. Milton has not provided any citations to the record in support of
this argument. Our review of the record reveals that Milton’s claim is factually
inaccurate. Additionally, Milton has provided scant analysis, and no legal
authority, in support of this argument, other than a reference to ‘‘res ipsa
loquitur,’’ which is clearly inapplicable to this action.
   5
     In opposition to Millard’s summary judgment, Milton also argued that
his claims against Millard were governed by General Statutes § 52-577, which
provides: ‘‘No action founded upon a tort shall be brought but within three
years from the date of the act or omission complained of.’’ The trial court
rejected that argument and Milton has not resuscitated it on appeal.
   6
     Milton also seems to argue that his claims against Millard are governed
by the three year statute of limitations set forth in General Statutes § 38a-
336. Because that statute pertains to actions against insurance companies
for uninsured and underinsured motorist coverage, it is inapplicable to
Milton’s claims against Millard.

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