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LISA ROBBINS, ADMINISTRATRIX (ESTATE OF
ELIJAH JAMAL HEZEKIA ROBBINS MARTIN),
ET AL. v. PHYSICIANS FOR WOMEN’S
HEALTH, LLC, ET AL.
(SC 18961)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued December 10, 2013—officially released May 27, 2014
Frank H. Santoro, with whom, on the brief, was R.
Cornelius Danaher, Jr., for the appellants (named
defendant et al.).
Steven D. Ecker, with whom were M. Caitlin S.
Anderson and, on the brief, Joel T. Faxon, for the appel-
lees (plaintiffs).
Jennifer L. Cox and Jennifer A. Osowiecki filed a
brief for Connecticut Hospital Association et al. as
amici curiae.
Opinion
ZARELLA, J. The sole issue in this appeal is whether
a covenant not to sue executed by the named plaintiff,
Lisa Robbins, as administratrix of the estate of her son,
Elijah Jamal Hezekia Robbins Martin,1 in favor of the
corporate tortfeasor, Shoreline Obstetrics and Gynecol-
ogy, P.C. (Shoreline), forecloses, as a matter of law,
the imposition of successor liability on the named
defendant, Physicians for Women’s Health, LLC, and the
defendant Women’s Health USA, Inc.2 The defendants
purchased Shoreline’s assets approximately nine
months after the events that led to the filing of the
present action. The defendants claim that the Appellate
Court improperly reversed the judgment of the trial
court, which had concluded that the covenant not to
sue Shoreline prevented the plaintiff from seeking to
recover from the defendants.3 The plaintiff responds
that the covenant did not preclude her from commenc-
ing an action against the defendants under a theory of
successor liability. We agree with the defendants and,
accordingly, reverse the judgment of the Appellate
Court.
The following facts and procedural history are set
forth in the Appellate Court’s opinion. ‘‘On October 10,
2005, the plaintiff gave birth to a son at Lawrence and
Memorial Hospital . . . in [the city of] New London.
Shortly after his birth, the child died. Jonathan Levine,
an obstetrician, and Donna Burke-Howes, a certified
nurse midwife, were present at the time and were
responsible for rendering medical care to the plaintiff
and her son. Levine and Burke-Howes were employees
of Shoreline. In July, 2006, Shoreline was sold to the
defendants. Shortly thereafter, the plaintiff filed suit
against Levine, Burke-Howes, Shoreline, [the hospital],
and the defendants, alleging medical malpractice.
‘‘On July 3, 2008, the defendants filed a motion for
summary judgment, arguing, inter alia, that they ‘had
no connection to the care and treatment rendered to
the [plaintiff’s son] nor were they in a business or con-
tractual relationship with . . . Shoreline [at the time
of his death],’ such that they could be liable for the
plaintiff’s malpractice claim. In response, the plaintiff
filed an amended complaint alleging that the defendants
were liable under a theory of successor liability and
. . . an objection to the defendants’ motion for sum-
mary judgment on that ground. Specifically, the plaintiff
argued that the continuity of enterprise exception
applied because ‘Shoreline still called itself Shoreline,
the same people were employed, the same management
existed and the same location and equipment were uti-
lized.’ The trial court agreed with the plaintiff and
denied the motion for summary judgment, stating that
‘the defendants ha[d] failed to meet their burden of
establishing the absence of a genuine issue of material
fact as to successor liability . . . .’
‘‘On November 14, 2008, after reaching a settlement
and executing two separate covenants not to sue, the
plaintiff withdrew her claims against Levine, Burke-
Howes and Shoreline. The record demonstrates that
this settlement was reached by providing the plaintiff
with monetary compensation through a medical mal-
practice insurance policy that covered both Levine and
Burke-Howes. Insurance documents and interrogatory
responses indicate that Levine and Burke-Howes were
each insured for up to $1 million. An affidavit submitted
by the plaintiff’s attorney, dated July 6, 2009, states that
Levine, Burke-Howes and Shoreline ‘tender[ed] [the]
policy limits’ in this settlement.
‘‘On July 1, 2009, the defendants filed a second motion
for summary judgment. In this motion, the defendants
argued that ‘successor liability . . . derives exclu-
sively from and is coterminous with the liability of
[Shoreline].’ From this premise, the defendants argued
that the plaintiff could not proceed because the cove-
nant not to sue ‘completely discharged’ Shoreline from
liability. On December 7, 2009, the court . . . [granted]
the defendants’ motion for summary judgment on these
grounds. . . .
‘‘On appeal [to the Appellate Court], the plaintiff
claim[ed] that her execution of a covenant not to sue
in favor of Shoreline [did] not prevent her from seeking
recovery from the defendants under a theory of succes-
sor liability. In doing so, the plaintiff argue[d] that a
covenant not to sue is an agreement not to proceed
against a particular defendant that, unlike a release,
does not discharge liability for the underlying cause
of action. In response, the defendants argue[d] that
successor liability may afford no greater recovery
against a successor than is available against the prede-
cessor and, therefore, the covenant not to sue executed
in favor of Shoreline also inure[d] to their benefit.
‘‘On September 21, 2011, [the Appellate] [C]ourt
ordered the parties to file supplemental briefs
addressing whether the plaintiff’s recovery from Shore-
line foreclosed the possibility of successor liability as
a matter of law. The defendants filed a supplemental
brief on October 5, 2011, in which they argue[d] that
successor liability may be imposed only when the prede-
cessor corporation is no longer able to afford the plain-
tiff relief. The defendants also assert[ed] that the
plaintiff’s settlement with Shoreline demonstrate[d]
that she [could not] meet this threshold requirement as
a matter of law. The plaintiff filed a supplemental brief
on October 6, 2011, arguing that a case premised on
a theory of successor liability may be pursued when
recovery has been obtained from the predecessor cor-
poration and that, in such a case, ‘the successor entity
is liable for the difference between [the] plaintiff’s dam-
ages . . . and the amount . . . that the plaintiff was
able to recover from the predecessor.’ ’’ (Footnotes
omitted.) Robbins v. Physicians for Women’s Health,
LLC, 133 Conn. App. 577, 580–83, 38 A.3d 142 (2012).
A divided Appellate Court reversed the trial court’s
judgment on two grounds. Id., 587–88, 595–96; see also
id., 596 (Bear, J., dissenting). The court first concluded
that successor liability may be imposed under the mere
continuation and continuity of enterprise theories if the
predecessor no longer represents a viable source of
relief; id., 586–87; but that, in the absence of undisputed
evidence in the record demonstrating the amount of
the plaintiff’s damages, it was ‘‘unable to conclude that
Shoreline represented a viable source of recovery . . .
as a matter of law.’’ Id., 588. The court next concluded
that a covenant not to sue, unlike a release, does not
discharge the underlying cause of action, and, therefore,
the covenant not to sue executed by the plaintiff in
favor of Shoreline did not prevent her from seeking to
recover from the defendants. Id., 595. The Appellate
Court thus remanded the case to the trial court for a
determination of whether Shoreline no longer remained
a viable source of recovery such that successor liability
could be imposed on the defendants. See id., 587–88
and n.10, 596.
Judge Bear issued a dissenting opinion in which he
concluded that, even if sufficient facts existed to sup-
port the plaintiff’s recovery under the mere continua-
tion and continuity of enterprise theories of successor
liability, the plaintiff had no viable claim against the
defendants under either theory. Id., 604 (Bear, J., dis-
senting). He reasoned that, because ‘‘any liability of
the successors necessarily is derivative of and, thus,
dependent on the existence of liability of the predeces-
sor’’; id., 605 (Bear, J., dissenting); the plaintiff’s volun-
tary settlement of her claim against the defendants’
predecessor, Shoreline, discharged and extinguished
the liability of both Shoreline and the defendants as
successors in the absence of a claim of fraud. Id., 604–
606 (Bear, J., dissenting).
This court granted the defendants’ petition for certifi-
cation to appeal, limited to the following issue: ‘‘Did
the Appellate Court properly determine that a covenant
not to sue, executed by the plaintiff in favor of a corpo-
rate tortfeasor, does not foreclose the imposition of
successor liability, as a matter of law, on the subsequent
purchaser of that company’s assets?’’ Robbins v. Physi-
cians for Women’s Health, LLC, 304 Conn. 926, 41 A.3d
1052 (2012).
The defendants claim that the covenant not to sue
discharged the underlying action against Shoreline and
its successors. The plaintiff argues to the contrary that
the covenant not to sue did not foreclose an action
against the defendants as successors. We agree with
the defendants.
The standard of review is well established. ‘‘Practice
Book § 17-49 provides that summary 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. 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 moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
the . . . motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Yellow Book
Sales & Distribution Co. v. Valle, 311 Conn. 112, 116–17,
84 A.3d 1196 (2014).
The issue of whether a plaintiff who executes a cove-
nant not to sue a corporate tortfeasor is foreclosed,
as a matter of law, from seeking to recover from the
subsequent purchasers of the corporate assets under a
theory of successor liability is one of first impression
for this court. Accordingly, we begin by examining the
governing legal principles on successor liability.
‘‘[T]he general rule is that where a corporation sells
or otherwise transfers all of its assets, its transferee is
not liable for the debts and liabilities of the transferor,
and that [the] liability of a new corporation for the
debts of another corporation does not result from the
mere fact that the former is organized to succeed the
latter. . . . This general rule of corporate nonliability
serves, in effect, as a security blanket that protects
corporate successors from unknown or contingent lia-
bilities of their predecessors.’’ (Footnotes omitted.) 19
Am. Jur. 2d 424–25, Corporations § 2319 (2004); see
also LiButti v. United States, 178 F.3d 114, 124 (2d Cir.
1999); Ricciardello v. J.W. Gant & Co., 717 F. Supp.
56, 57–58 (D. Conn. 1989); Chamlink Corp. v. Merritt
Extruder Corp., 96 Conn. App. 183, 187, 899 A.2d 90
(2006); 15 C. Jones, Fletcher Cyclopedia of the Law of
Corporations (2008 Rev.) § 7122, p. 209.
The rule is nonetheless subject to four well estab-
lished exceptions. A successor corporation may be held
liable for the debts and liabilities of its predecessor
when ‘‘there is an express or implied assumption of
liability,’’ ‘‘the transaction amounts to a consolidation
or merger,’’ ‘‘the transaction is fraudulent,’’ or ‘‘the
transferee corporation is a mere continuation or rein-
carnation of the old corporation.’’ 19 Am. Jur. 2d, supra,
§ 2320, p. 426; see also Golden State Bottling Co. v.
National Labor Relations Board, 414 U.S. 168, 182–83
n.5, 94 S. Ct. 414, 38 L. Ed. 2d 388 (1973); LiButti v.
United States, supra, 178 F.3d 124; Chamlink Corp. v.
Merritt Extruder Corp., supra, 96 Conn. App. 187; 19
C.J.S. 267–68, Corporations § 747 (2007).
In the present case, the defendants claim that the
plaintiff’s execution of the covenant not to sue Shore-
line extinguished all of Shoreline’s potential liability
under the mere continuation exception on which she
relies, leaving no liability to be passed on to the defen-
dants as successors. We agree.
The term ‘‘successor corporation’’ means ‘‘[a] corpo-
ration that, through amalgamation, consolidation, or
other assumption of interests, is vested with the rights
and duties of an earlier corporation.’’ Black’s Law Dic-
tionary (9th Ed. 2009) p. 1569. Thus, the liability of a
successor corporation is derivative in nature and the
successor may be held liable for the conduct of its
predecessor only to the same extent as the predecessor.
As another court has explained, ‘‘[r]egardless [of] the
exception, successor liability does not create a new
cause of action against the purchaser so much as it
transfers the liability of the predecessor to the pur-
chaser. . . . [S]ee [Golden State Bottling Co. v.
National Labor Relations Board, supra, 414 U.S. 181–
86]; see also Northern Ins. Co. of New York v. [Allied
Mutual Ins. Co.], 955 F.2d 1353, 1357 [9th Cir.] (the
liability of the predecessor is transferred to the succes-
sor) [cert. denied, 505 U.S. 1221, 112 S. Ct. 3033, 120
L. Ed. 2d 903 (1992)]; Clark Equipment Co. v. Dial
Corp., 25 F.3d 1384, [1387–88] (7th Cir. 1994) (successor
liability distinguished from personal and independent
liability of the successor); Preyer v. [Gulf Tank & Fabri-
cating Co.], 826 F. Supp. 1389, 1395 (N.D. Fla. 1993)
(successor liability does not create new rights in the
plaintiff); Russell v. SunAmerica Securities, Inc.,
[United States District Court, Docket No. E90-0084 (L)]
(S.D. Miss. [March 6] 1991) (liability of successor is
coterminous with liability of predecessor; if predeces-
sor is not liable then neither is successor). The nature
of the liability itself does not change. Thus, while suc-
cessor liability may give a party an alternative entity
from whom to recover, the doctrine does not convert
the claim to an in rem action running against the prop-
erty being sold. Nor does the claim have an existence
independent of the underlying liability of the entity that
sold the assets.’’ (Citation omitted; emphasis altered;
footnote omitted.) In re Fairchild Aircraft Corp., 184
B.R. 910, 920 (Bankr. W.D. Tex. 1995),4 vacated on other
grounds, 220 B.R. 909 (Bankr. W.D. Tex. 1998); see also
Herbolsheimer v. SMS Holding Co., 239 Mich. App. 236,
252, 608 N.W.2d 487 (‘‘[s]imply being a successor in
liability does not make a company liable—there must be
an allegedly viable legal claim against the predecessor in
order for the case to survive a motion for summary
disposition’’), appeal denied, 463 Mich. 873, 618 N.W.2d
590 (2000); L. Hock, comment, ‘‘Successor Liability in
Asset Purchases of Bankrupt Health Care Providers,’’
19 Bankr. Dev. J. 179, 182 (2002) (‘‘Successor liability
is an equitable doctrine that depends on state law. It
does not give rise to a new cause of action, nor does
it create an in rem claim running against the purchased
property. Instead, successor liability provides for a
transfer of liability from the original corporation to
the acquiring corporation.’’ [Footnotes omitted.]). This
conclusion is consistent with Connecticut’s law on
mergers, which provides that all liabilities and contract
rights of a corporation that merges into the survivor,
such as the covenant not to sue at issue in the present
case, are vested in the survivor. See General Statutes
§ 33-820 (3) and (4).
Given this understanding of successor liability as lim-
ited to the existing liability of the predecessor corpora-
tion, the effect on the defendants of the plaintiff’s
covenant not to sue Shoreline is clear. ‘‘A covenant not
to sue is a covenant by one who had a right of action
at the time of making it against another person, by
which he or she agrees not to sue to enforce such right
of action.’’ 76 C.J.S. 598, Release § 3 (2007); see also
J & J Farmer Leasing, Inc. v. Citizens Ins. Co. of
America, 472 Mich. 353, 357–58, 696 N.W.2d 681 (2005)
(‘‘a covenant not to sue is . . . an agreement not to
sue on an existing claim’’); Colton v. New York Hospital,
53 App. Div. 2d 588, 589, 385 N.Y.S.2d 65 (1976) (‘‘a
covenant not to sue is an agreement by one having a
present right of action against another not to sue to
enforce such right’’). A covenant not to sue therefore
terminates the liability of one against whom a right of
action could have been brought, either in perpetuity
or for a stipulated period of time. It follows that the
plaintiff’s execution of the covenant not to sue Shore-
line in perpetuity foreclosed, as a matter of law, her
right of action not only against Shoreline, but against
any subsequent purchaser of Shoreline’s assets under
the mere continuation theory of successor liability. In
other words, having relinquished her right to bring a
legal action against Shoreline, there remained no right
of action that could be transferred to the defendants
as successors.5 See, e.g., Syenergy Methods, Inc. v. Kelly
Energy Systems, Inc., 695 F. Supp. 1362, 1365–66 (D.R.I.
1988) (covenant not to sue predecessor precluded
action against successor).6 Accordingly, we conclude
that the Appellate Court improperly reversed the judg-
ment of the trial court, which determined that the cove-
nant not to sue Shoreline precluded the plaintiff from
bringing a claim against the defendants for Shoreline’s
allegedly tortious conduct.
The plaintiff argues that ‘‘[a] covenant not to sue,
unlike a release, does not release nonsettling parties’’;
(emphasis omitted); and that the covenant not to sue
Shoreline ‘‘was intended and executed for the specific
purpose of resolving the case only against [Shoreline],
while specifically carving out and preserving the claims
against the two remaining nonsettling defendants.’’ We
are not persuaded.
A release is ‘‘the relinquishment, concession, or giving
up of a right, claim, or privilege, by the person in whom
it exists or to whom it accrues, to the person against
whom it might have been demanded or enforced.’’ 76
C.J.S., supra, § 1, p. 597; see also Rosen v. Florida Ins.
Guaranty Assn., 802 So. 2d 291, 295 (Fla. 2001) (‘‘[a]
release is an outright cancellation or discharge of the
entire obligation as to one or all of the alleged joint
wrongdoers’’ [internal quotation marks omitted]); J &
J Farmer Leasing, Inc. v. Citizens Ins. Co. of America,
supra, 472 Mich. 357 (‘‘[a] release immediately dis-
charges an existing claim or right’’). Thus, the distinc-
tion between a covenant not to sue, pursuant to which
one agrees not to enforce a right of action, and a release,
pursuant to which one surrenders a right of action, is
irrelevant in the present context because the effect on
successor liability is the same. In both cases, there is
no remaining right of action against the tortfeasor that
may be transferred to its successor. See Ex parte
Healthsouth Corp., 974 So. 2d 288, 296 (Ala. 2007) (‘‘the
operation and effect of a covenant not to sue and that
of a release may be the same as between the parties
to the agreement’’). The fact that the covenant not to
sue in the present case contained a provision reserving
the plaintiff’s right to sue the defendants does not over-
come this principle.7
Moreover, all of the case law on which the plaintiff
relies in making the foregoing argument addresses the
effect of releases and covenants not to sue on the liabil-
ity of joint tortfeasors. See Viera v. Cohen, 283 Conn.
412, 433–34, 927 A.2d 843 (2007); Alvarez v. New Haven
Register, Inc., 249 Conn. 709, 725 n.10, 735 A.2d 306
(1999); Bonczkiewicz v. Merberg Wrecking Corp., 148
Conn. 573, 581, 172 A.2d 917 (1961); Bridgeport-City
Trust Co. v. Hirsch, 119 Conn. 586, 589, 178 A. 423
(1935); Dwy v. Connecticut Co., 89 Conn. 74, 79–80, 86,
92 A. 883 (1915). Joint tortfeasors are persons who
have acted in concert in committing the wrong or have
engaged in independent conduct that has united to
cause a single injury, thus making them jointly and
severally liable for the wrongful conduct. See Black’s
Law Dictionary, supra, p. 1627; see also 4 Restatement
(Second), Torts § 886A, comment (b), p. 338 (1979)
(‘‘[Joint tortfeasors are] two or more persons who are
liable to the same person for the same harm. It is not
necessary that they act in concert or in pursuance of
a common design, nor is it necessary that they be joined
as defendants.’’). The defendants, however, had nothing
to do with the wrongful conduct at issue in this case,
and no claim has been made to that effect. Accordingly,
the law on the liability of joint tortfeasors is inap-
plicable.
The plaintiff also relies on cases involving joint tort-
feasors and employer liability under the doctrine of
respondeat superior in arguing that successor liability
is merely a form of vicarious liability that is ‘‘not erased
or terminated merely because the ‘primary’ defendant
settles a claim.’’ (Emphasis omitted.); see, e.g., Alaska
Airlines, Inc. v. Sweat, 568 P.2d 916, 930 (Alaska 1977);
Hovatter v. Shell Oil Co., 111 Ariz. 325, 326–27, 529 P.2d
224 (1974); Ochoa v. Vered, 212 P.3d 963, 968–69 (Colo.
App. 2009); Convit v. Wilson, 980 A.2d 1104, 1120–21
(D.C. 2009); JFK Medical Center, Inc. v. Price, 647 So.
2d 833, 834 (Fla. 1994); Miller v. Grand Union Co., 270
Ga. 537, 537–38, 512 S.E.2d 887 (1999); Pelo v. Franklin
College, 715 N.E.2d 365, 366–67 (Ind. 1999); Sampay v.
Morton Salt Co., 395 So. 2d 326, 328–29 (La. 1981); Atlas
Tack Corp. v. DiMasi, 37 Mass. App. 66, 71–72, 637
N.E.2d 230 (1994); Boucher v. Thomsen, 328 Mich. 312,
321–22, 43 N.W.2d 866 (1950); Plath v. Justus, 28 N.Y.2d
16, 19–23, 268 N.E.2d 117, 319 N.Y.S.2d 433 (1971); Leon
v. Parma Community General Hospital, 140 Ohio App.
3d 95, 99–100, 746 N.E.2d 689 (2000); Knutson v. Morton
Foods, Inc., 603 S.W.2d 805, 806–807 (Tex. 1980); Woo-
drum v. Johnson, 210 W. Va. 762, 772, 559 S.E.2d 908
(2001). The plaintiff contends that all three relation-
ships permit a transfer of liability from one party to
another, and, therefore, the effect of a covenant not to
sue on a joint tortfeasor, an employer, and a successor
is the same. We disagree.
The plaintiff ignores the fact that successor liability
is governed by special rules that do not apply to joint
tortfeasors or employers. One such rule is that, even
under the mere continuation theory of successor liabil-
ity, a successor corporation is liable for the debts and
liabilities of its predecessor only to the same extent as
the predecessor. See In re Fairchild Aircraft Corp.,
supra, 184 B.R. 921 n.11; Herbolsheimer v. SMS Holding
Co., supra, 239 Mich. App. 252. The special protection
accorded a successor in this context is not hard to
understand when one considers that successors, unlike
joint tortfeasors or employers, have no connection to
the harm that gave rise to the liability. As previously
explained, joint tortfeasors are directly connected to
the wrongful conduct. Employers are likewise deemed
connected because, to the extent the tortious conduct
occurred within the scope of the employment relation-
ship, employees are viewed as having acted on behalf
of their employers. See, e.g., 1 Restatement (Third),
Agency § 2.04, p. 139 (2006) (‘‘[a]n employer is subject to
liability for torts committed by employees while acting
within the scope of their employment’’); Restatement
(Third), Torts: Apportionment of Liability § 7, comment
(j), p. 69 (2000) (‘‘When a party is liable solely on the
basis of another person’s tortious conduct [and] there
is no direct responsibility to assign to the party to whom
liability is imputed . . . the party who committed the
tortious acts or omissions and the party to whom liabil-
ity is imputed are treated as a single unit for the assign-
ment of responsibility. [Thus], an employer who is
vicariously liable for the negligence of an employee
and the employee are treated as a single entity.’’). By
assigning responsibility to employers for the legal con-
sequences of their employees’ errors of judgment and
other lapses, the doctrine of respondeat superior ‘‘cre-
ates an incentive for principals to choose employees
and structure work within the organization so as to
reduce the incidence of tortious conduct.’’ 1 Restate-
ment (Third), Agency, supra, § 2.04, comment (b), p.
141; W. Keeton et al., Prosser and Keeton on the Law
of Torts (5th Ed. 1984) § 69, pp. 500–501 (employer
liable for torts of employee because employer has con-
trol over selection, instruction, and supervision of
employees, will profit from enterprise, and is better
able to bear costs of doing business). In contrast, the
purchaser of a corporation’s assets, who very likely
contemplated and completed the purchase after the
wrongful conduct occurred, is unconnected to the harm
caused by the corporation’s tortious conduct. Conse-
quently, cases involving the liability of employers and
joint tortfeasors provide no guidance in cases involving
successor liability because the successor had no ability
to prevent the harmful conduct from occurring.
The plaintiff further contends that the covenant not
to sue did not extinguish her right to recover from the
defendants because cases of vicarious liability do not
involve a single or unitary cause of action that is dis-
charged by a settlement with the active or primary
tortfeasor. See W. Prosser, ‘‘Joint Torts and Several
Liability,’’ 25 Cal. L. Rev. 413, 424 (1937) (describing
survival of common-law notions regarding ‘‘unity of a
cause of action against joint tortfeasors’’ as ‘‘deplor-
able’’). This is a straw man argument. No one has
described the plaintiff’s right of action against Shore-
line, least of all the defendants, as a common-law uni-
tary cause of action that was discharged by the
plaintiff’s covenant not to sue. Moreover, any analysis
based on this concept is irrelevant in the present case
because the traditional common-law understanding of
a unitary cause of action presumed the existence of
joint tortfeasors, one of whom had settled with the
plaintiff by way of a release or a covenant not to sue.
See id., 418 (‘‘In the earliest cases, where the defendants
acted in concert, ‘the act of one was the act of all,’ and
each was therefore liable for the entire loss sustained
by the plaintiff, even though he might have caused only
a part of it. The rule grew out of the common law
concept of the unity of the cause of action; the jury
could not be permitted to apportion . . . damages,
since there was but one wrong. Innumerable cases have
repeated the statement, that the liability of ‘joint tort-
feasors’ is entire, and cannot be divided.’’ [Footnotes
omitted.]); see also Miller v. Jarrell, 684 P.2d 954, 956
(Colo. App. 1984) (‘‘Traditionally, the release of a joint
tortfeasor served to release all other joint tortfeasors.
This rule stemmed from the common law notion as to
the unity of a cause of action.’’); Cram v. Northbridge,
410 Mass. 800, 801, 575 N.E.2d 747 (1991) (under com-
mon-law ‘‘unity of discharge’’ doctrine, ‘‘the discharge
of one joint tortfeasor constituted a discharge of all
other joint tortfeasors’’ because rule was based on view
that ‘‘only one cause of action arises from the same tort
and that plaintiffs should be prevented from recovering
several times for the same injury’’ [internal quotation
marks omitted]). Consequently, this argument has no
merit.8
The plaintiff finally argues that policy considerations
strongly favor her legal position rather than that of the
defendants. She argues that the use of a covenant not
to sue to achieve a partial settlement without forsaking
the right to pursue further action against parties whose
liability is vicarious or derivative encourages and facili-
tates settlements, satisfies the goal of the tort system
to provide full compensation to victims of negligence,
and discourages health care providers from gaining an
advantage against potential plaintiffs by intentionally
underinsuring in order to reduce their malpractice
costs. All of these arguments, however, have glaring
weaknesses. Permitting plaintiffs to bring lawsuits
against successors following the execution of cove-
nants not to sue their predecessors could discourage
the purchase of corporate assets that might be subject
to future corporate liabilities or, equally harmful, could
discourage settlement agreements altogether for fear
of indemnification actions should the successors be
sued. Likewise, public policy does not favor full com-
pensation for tortious conduct, or opportunities for
windfall recoveries, from parties that are not responsi-
ble for the conduct and could not have done anything
to prevent it. As for the claim regarding underinsurance
by health care providers, Connecticut law establishes
minimum professional liability insurance requirements
for a wide array of health care professionals. See, e.g.,
General Statutes § 20-11b (b) (physicians and sur-
geons); General Statutes § 20-28b (chiropractors); Gen-
eral Statutes § 20-39a (natureopathic physicians);
General Statutes § 20-58a (podiatrists); General Stat-
utes § 20-73d (physical therapists); General Statutes
§ 20-94c (advanced practice registered nurses); General
Statutes § 20-126d (dentists); General Statutes § 20-
126x (dental hygienists); General Statutes § 20-133b
(optometrists).
The plaintiff’s policy arguments also must be weighed
against the reasons for the well settled general rule
against successor liability, which include that the rule
comports with ‘‘the fundamental principle of justice
and fairness’’ that one is responsible ‘‘for one’s own act
and not for the totally independent act of others,’’ and
that it ‘‘promotes [the] free alienability of corporate
assets,’’ thereby encouraging their productive use. Gal-
lenberg Equipment, Inc. v. Agromac International,
Inc., 10 F. Supp. 2d 1050, 1053 (E.D. Wis. 1998), aff’d
mem., 191 F.3d 456 (7th Cir. 1999). This latter consider-
ation is especially relevant in today’s rapidly changing
health care industry, in which hospitals contemplating
mergers or potential purchases of group practices might
be ‘‘leery of investing in a liability time-bomb’’; C.
Rogala, comment, ‘‘Nontraditional Successor Product
Liability: Should Society Be Forced to Pay the Cost?,’’
68 U. Det. L. Rev. 37, 64 (1990); if a covenant not to
sue the predecessor corporation should fail to preclude
liability against the successor.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
1
Robbins also brought this action in her individual capacity. In the interest
of simplicity, we refer to Robbins as the plaintiff throughout this opinion.
2
The plaintiff initially named as defendants in this action Physicians for
Women’s Health, LLC, Women’s Health USA, Inc., Lawrence and Memorial
Hospital (hospital) and Jonathan Levine. Shoreline and Donna Burke-Howes
were subsequently added as defendants. The claims against the hospital,
Shoreline, Levine, and Burke-Howes were settled before the trial court
rendered judgment in this action. Consequently, Physicians for Women’s
Health, LLC, and Women’s Health USA, Inc., are the only remaining defen-
dants. We refer to Physicians for Women’s Health, LLC, and Women’s Health
USA, Inc., collectively as the defendants throughout this opinion.
3
The covenant executed between the plaintiff, Jonathan Levine, and
Shoreline provides in relevant part: ‘‘[The parties] understand and affirm
that by executing this covenant not to sue [Levine and Shoreline are] forever
discharg[ed] . . . from all claims . . . including . . . those arising from
. . . any care and treatment rendered by [Levine and Shoreline] to [the
plaintiff or her son] . . . .’’ The covenant also provides: ‘‘This covenant not
to sue does not [a]ffect claims against the Physicians for Women’s Health
LLC entities, which remain defendants in the pending action.’’
‘‘The covenant between the plaintiff and [Donna] Burke-Howes contains
substantially similar language.’’ Robbins v. Physicians for Women’s Health,
LLC, 133 Conn. App. 577, 581 n.2, 38 A.3d 142 (2012).
4
Although In re Fairchild Aircraft Corp. ultimately was vacated on com-
plicated procedural grounds, the court’s analysis of successor liability
remains valid.
5
In light of this conclusion, there is no need to consider the parties’
arguments with respect to the viable source of relief theory on which the
Appellate Court relied in remanding the case to the trial court for further
proceedings. Even if Shoreline could have served as a viable source of relief
for the plaintiff following the sale of its assets to the defendants, the covenant
not to sue terminated Shoreline’s liability and, therefore, that of the defen-
dants as successors.
The plaintiff suggests that a triable issue remains because, on April 16,
2009, the trial court denied the defendants’ initial summary judgment motion
dated July 3, 2008, on the ground that liability was not precluded under the
continuing enterprise theory and that this decision was not appealed. We
disagree. The defendants filed their July, 2008 summary judgment motion
before the plaintiff executed the covenant not to sue in December, 2008. In
their second motion for summary judgment dated July 1, 2009, the defendants
claimed that they were entitled to judgment as a matter of law because the
covenants not to sue precluded any further action against them. The plaintiff
again relied on the continuing enterprise theory of successor liability,
arguing, inter alia, that the trial court already had decided that there was
a jury issue under this theory, but the trial court concluded that the covenant
not to sue extinguished the plaintiff’s claim of successor liability against
the defendants as well as Shoreline. Accordingly, no viable claim remained in
connection with the trial court’s decision on the defendants’ initial summary
judgment motion.
6
The plaintiff argues that Syenergy Methods, Inc., is inapplicable because
the plaintiff in that case, unlike the plaintiff in the present case, executed
a covenant not to sue the predecessor company before it sued the successor,
and the District Court ‘‘explicitly indicated that it would have honored an
express reservation of rights in the settlement agreement if it had contained
one, but it did not . . . [which is] the opposite of the present case.’’ We
disagree. The fact that the agreement in Syenergy Methods, Inc., was exe-
cuted before, rather than after, the sale of the company assets to the succes-
sor is a distinction without a difference. With respect to the language
referring to a ‘‘reservation of rights,’’ the District Court stated: ‘‘[I]f . . . the
debts and liabilities of the selling corporation would pass to the purchasing
corporation [under the merger or mere continuation theories of successor
liability], then the symmetries of justice require that the rights and other
contractual entitlements of the selling corporation, unless expressly
reserved, must pass as well.’’ Syenergy Methods, Inc. v. Kelly Energy Sys-
tems, Inc., supra, 695 F. Supp. 1365–66. In addition to the fact that the issue
of an express reservation of rights was not before the court in Syenergy
Methods, Inc., the language ‘‘unless expressly reserved’’; id., 1366; appears
to refer to a reservation of rights by the seller, not a reservation of rights
by the plaintiff who executed the covenant not to sue the seller. Accordingly,
we do not agree with the plaintiff in the present case that the District
Court’s passing reference to an express reservation of ‘‘the rights and other
contractual entitlements’’ of the selling corporation; id.; is in any way con-
trary to our conclusion that the plaintiff’s execution of the covenant not to
sue Shoreline foreclosed her, as a matter of law, from bringing a claim
against the defendants on the basis of successor liability.
7
We note that, although a release is an executed agreement that requires
no further performance, whereas a covenant not to sue is executory and
requires ‘‘continuous and prospective’’ performance, ‘‘either permanently
or for a limited, stated period of time,’’ the performance being ‘‘the obligor’s
future forbearance in asserting a claim [that] exists or may accrue against
the obligee’’; (emphasis omitted; internal quotation marks omitted) Estate
of Lien v. Pete Lien & Sons, Inc., 740 N.W.2d 115, 124 (S.D. 2007); this
distinction has no effect on the issue in the present case.
8
We also reject the plaintiff’s argument that the defendants’ claim is based
on the theory that they must be discharged from liability so that they will
not sue Shoreline for indemnification if they should be found vicariously
liable. The defendants did not make this argument, and, in any event, the
plaintiff concedes that the theory ‘‘has no relevance’’ in the present case
because ‘‘the [defendants have] no known indemnification rights against
[Shoreline] . . . .’’
Robbins v. Physicians for Women's Health, LLC
Combined Opinion