***********************************************
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***********************************************
LINDSEY MARCO v. STARR INDEMNITY AND
LIABILITY COMPANY
(AC 43376)
Prescott, Cradle and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages for breach of contract from the
defendant insurer. The plaintiff was awarded damages for personal
injuries she sustained when a large fight broke out while she was at a
bar owned by C Co., the defendant’s insured. C Co. assigned its rights
under its general liability insurance policy to the plaintiff. The defendant,
however, declined to defend or indemnify C Co. with respect to the
plaintiff’s injuries because the insurance policy contained an exclusion
for any injuries arising out of assault or battery, and the plaintiff com-
menced this action. The defendant filed a motion for summary judgment
on the ground that it did not owe C Co. a duty to defend because the
plaintiff’s claim was barred by the insurance policy’s assault and battery
exclusion. The court, Swienton, J., denied the motion, finding that genu-
ine issues of material fact existed, including relating to the cause of the
plaintiff’s injuries. The court, J. Moore, J., then granted the plaintiff’s
motions to quash and for a protective order in which she argued that
the defendant should not be allowed to take her deposition because the
only evidence that should be considered in determining the case were
the complaint and the insurance policy. Following that decision, the
defendant filed a motion to strike the plaintiff’s claim for a jury trial on
the ground that there were no factual issues for a jury to decide, as the
duty to defend was purely a legal question to be resolved by the court.
After hearing oral argument on the matter, Judge Moore issued an order
to bifurcate the trial, with the issue of the duty to defend to be considered
first by the court. He requested that the initial stage of the trial be
assigned to another judge because he had been involved in the parties’
pretrial settlement discussions, and the matter was assigned to Judge
Aurigemma. Both parties filed briefs on the issue and waivers of oral
argument, asking the court to decide the matter on the papers. Judge
Aurigemma concluded that the defendant did not have a duty to defend
C Co. because the insurance policy did not permit recovery for injuries
sustained from an assault. After requesting additional briefs on the
matter and scheduling oral argument, which the parties waived, Judge
Moore found that Judge Aurigemma’s decision was dispositive of all of
the issues in the case and rendered judgment in favor of the defendant,
from which the plaintiff appealed to this court. Held:
1. The trial court did not err in ordering a court trial on the legal issue of
the duty to defend following its denial of summary judgment on that
issue: in denying summary judgment, the court did not find that the
plaintiff was entitled to judgment on the matter but only that genuine
issues of material fact existed, which precluded the court from finding
that the defendant was entitled to judgment as a matter of law; moreover,
no genuine issue of material fact existed as to whether the defendant
owed a duty to defend C Co. because that question was purely a legal
issue to be decided by the court; furthermore, the law of the case
doctrine did not preclude Judge Moore from concluding that the duty
to defend question was a legal matter to be decided before a jury trial
could be held to address any remaining factual issues, despite the court’s
prior denial of summary judgement on the matter, as, under the doctrine,
a trial judge may reach a contrary conclusion on an issue of law pre-
viously decided if the judge was convinced that the prior ruling was
wrong.
2. The trial court did not improperly deprive the plaintiff of a jury trial on
the issue of whether the defendant had a duty to defend C Co. because
the plaintiff was not entitled to a jury trial on the matter: both the
interpretation of pleadings and the question of whether an insurer owes
a duty to defend are issues of law, which must always be decided by
the court.
3. There was no merit to the plaintiff’s claim that Judge Moore should
have recused himself to avoid the appearance of impropriety due to his
involvement in the pretrial settlement negotiations: Judge Moore did
not play a role in deciding the issues of liability or damages in the case,
he only made the determination that Judge Aurigemma’s ruling was
dispositive of all of the issues, which decision was administrative in
nature; moreover, despite the fact that the parties were aware that the
matter would appear before Judge Moore following Judge Aurigemma’s
decision, the plaintiff did not raise the issue of a potential appearance
of impropriety until after she received an adverse decision, and such a
decision alone is insufficient to form the basis of a claim of judicial
bias; furthermore, the plaintiff failed to provide any legal or factual
analysis supporting her argument for recusal in her brief and, therefore,
failed to set forth a factual basis on which a reasonable person might
have questioned Judge Moore’s impartiality.
Argued February 16—officially released June 1, 2021
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Britain, where the
court, J. Moore, J., ordered the trial to be bifurcated;
thereafter, the matter was tried, in part, to the court,
Aurigemma, J.; judgment for the defendant; subse-
quently, the court, J. Moore, J., determined that the
judgment was dispositive of all of the issues in the case
and rendered judgment for the defendant on all counts,
from which the plaintiff appealed to this court.
Affirmed.
Joseph Mulshine, for the appellant (plaintiff).
Melissa Brill, pro hac vice, and Raymond J. Carta,
with whom, on the brief, were Laura Dowgin, pro hac
vice, and John W. Cannavino, Jr., for the appellee
(defendant).
Opinion
CRADLE, J. The plaintiff, Lindsey Marco, appeals
from the judgment rendered in favor of the defendant,
Starr Indemnity and Liability Company, on the ground
that the defendant had no duty to defend its insured,
Copa Entertainment Group, LLC (Copa Entertainment),
the owner and operator of Zen Bar (bar), the location
where the plaintiff had sustained injuries for which
she had been awarded damages by an arbitrator in
a separate action (underlying action). On appeal, the
plaintiff claims that the trial court (1) erred in ordering
a court trial on the legal issue of whether the defendant
had a duty to defend Copa Entertainment when sum-
mary judgment previously had been denied on that
issue, (2) improperly deprived her of a jury trial on the
issue of whether the defendant had a duty to defend
its insured, and (3) should have recused itself from this
case to avoid the appearance of impropriety after it
was involved in pretrial settlement negotiations. We
affirm the judgment of the trial court.1
The following procedural history is relevant to the
plaintiff’s claims on appeal. On June 23, 2014, the plain-
tiff filed an action against, inter alia, Copa Entertain-
ment, seeking to recover damages for injuries that she
sustained on May 31, 2013, while she was a patron at
the bar. In her initial complaint, the plaintiff alleged
that, on that night, ‘‘numerous altercations broke out
in various places inside [the bar] and eventually the
altercations grew and spilled out of the building and
into the parking lot surrounding [the bar], where the
plaintiff . . . was viciously and severely physically
assaulted, punched, kicked and dragged so as to cause
her to suffer extensive personal injuries . . . .’’ In that
complaint, the plaintiff specifically named four individ-
uals and one John Doe, who, she alleged, ‘‘repeatedly
struck [her], about the head, face and body, thereby
knocking her to the ground, rendering her unconscious
and causing her to suffer severe and permanent per-
sonal injuries.’’ On October 25, 2015, the plaintiff
amended her complaint, alleging that she had sustained
her injuries when she was ‘‘negligently impacted by a
person, persons or object and/or viciously and severely
trampled, physically assaulted, punched, kicked and
dragged . . . .’’ The names of the specific individuals
who allegedly injured the plaintiff were omitted from
the amended complaint.
The plaintiff’s claims against Copa Entertainment,
which sounded in negligent security and recklessness,
were submitted to an arbitrator. The arbitrator found
that the plaintiff’s injuries were ‘‘proximately caused by
. . . Copa Entertainment’’ and awarded her $131,500
in damages. The arbitration award was thereafter con-
firmed by the Superior Court.
After the arbitration award was confirmed, Copa
Entertainment assigned to the plaintiff its rights under
its insurance policy issued by the defendant. The gen-
eral liability policy that the defendant issued to Copa
Entertainment contained an exclusion for injuries aris-
ing out of assault and battery. The defendant relied on
that exclusion in declining to defend or indemnify Copa
Entertainment in the underlying action.
On July 17, 2017, the plaintiff commenced this action
against the defendant, based on the defendant’s failure
to defend or indemnify Copa Entertainment in the
underlying action, alleging breach of the insurance con-
tract, breach of the covenant of good faith and fair
dealing, violation of the Connecticut Unfair Trade Prac-
tices Act, General Statutes § 42-110a et seq., and the
Connecticut Unfair Insurance Practices Act, General
Statutes § 38a-815 et seq., and common-law bad faith.
On May 22, 2018, the defendant filed a motion for sum-
mary judgment on the ground that it did not owe Copa
Entertainment a duty to defend because the plaintiff’s
claim was barred by the assault and battery exclusion
of the insurance policy. The plaintiff filed an opposition
to the defendant’s motion for summary judgment, and
the court, Swienton, J., heard argument from the par-
ties.
On May 22, 2018, Judge Swienton denied the defen-
dant’s motion for summary judgment. The court
explained, inter alia: ‘‘The motion for summary judg-
ment at this stage is a substitute for the declaratory
judgment action which the defendant declined to pur-
sue. [The defendant] now is asking the court to make a
determination based upon a number of police reports—
which the court notes have not been authenticated—
that the incident in which the plaintiff was injured is
not covered under the policy insuring [Copa Entertain-
ment]. The court has reviewed the entire record pre-
sented and finds that there remain genuine issues of
material fact in the present case. One of these issues
is whether [the defendant] has a contractual obligation
to indemnify [Copa Entertainment] in the first action
based upon whether the injuries the plaintiff sustained
resulted only from an assault and battery. The court
cannot decide these disputed factual issues on a motion
for summary judgment.’’
On September 27, 2018, the plaintiff filed a motion
to quash and a motion for protective order, seeking to
prevent the defendant from deposing her in this case
on the ground that, ‘‘in the present contract action, the
only pieces of evidence to be considered by the jury
are the complaints and the insurance policy in effect
at the time of loss.’’ On October 15, 2018, the court, J.
Moore, J., heard oral argument from the parties on these
motions and other discovery motions, and the plaintiff
reiterated her contention that only the complaint and
the insurance policy should be considered in this case.
The defendant agreed. Accordingly, Judge Moore issued
the following order: ‘‘Based upon the representations
of the plaintiff’s counsel made today during the hearing
on this and related motions, the discovery at issue is
not reasonably calculated to lead to the discovery of
admissible evidence at trial. If the presentation of the
plaintiff’s case later involves an attempt to introduce
factual evidence outside of the evidence discussed dur-
ing the hearing today, e.g., evidence consisting of both
underlying, operative complaints and the insurance pol-
icy at issue, the defendant’s attorney shall reclaim this
motion and the court will seriously reconsider this
motion.’’
On November 23, 2018, the defendant filed a motion
to strike the plaintiff’s claim for a jury trial, which she
had filed on September 6, 2017, on the ground that there
were no factual issues for the jury to decide, as the
duty to defend was purely a legal question for resolution
by the court. The plaintiff filed an objection, arguing
that the court had denied summary judgment on the
defendant’s claim that it had no duty to defend on the
ground that issues of fact existed and that she was
entitled to have a jury trial on those factual issues. In
her objection, the plaintiff also argued that she was
entitled to a directed verdict on the duty to defend
issue based on the prior denial of summary judgment.
Specifically, she argued: ‘‘The defendant, by way of the
court’s denial of [its] motion for summary judgment,
has lost on that issue and that issue should not be
allowed to be relitigated by anyone and judgment on
that issue should be directed to the plaintiff with a
finding that the defendant breached its duty to defend
. . . .’’ The court heard oral argument on December
10, 2018.2
On December 12, 2018, the court entered the follow-
ing order: ‘‘Practice Book § 15-1 provides that in all
cases, whether claimed as jury cases or court cases,
the court may order that one or more of the issues be
tried before the others. Practice Book § 16-9 provides
that, even where [there] are mixed questions of law
and fact, the court ‘shall decide all issues of law and
all questions of law . . . .’ Our Supreme Court has held
that the ‘question of whether an insurer has a duty to
defend its insured is purely a question of law . . . .’
Community Action for Greater Middlesex County, Inc.
v. American Alliance Ins. Co., 254 Conn. 387, 395, [757
A.2d 1074 (2000)].
***
‘‘Despite the plaintiff’s arguments to the contrary,
even though the defendant raised both the duty to
defend and the duty to indemnify in its motion for
summary judgment, Judge Swienton did not decide
whether the defendant breached its duty to defend in
the underlying case. First, the plaintiff did not move
for summary judgment itself. Second, Judge Swienton
found an issue of fact in denying the defendant’s motion
for summary judgment and cited the defendant’s duty
to indemnify. As set forth above, our Supreme Court
has held clearly that an insured’s duty to defend is
a purely legal question, e.g., one that could not have
involved a question of fact. For the reasons set forth
above, the court orders that this trial . . . be staged
so that the purely legal question of the defendant’s
duty to defend its insured in the underlying case is
considered first by the court. The allegations of the
operative complaint at the time of the award and judg-
ment must be compared to the language of the policy
by a court. . . . Since this court has attempted to settle
this case at a pretrial, this court will request the presid-
ing civil judge to assign it to another judge for the initial
determination of whether the defendant had a duty to
defend its insured.’’ (Citation omitted.)
On December 19, 2018, the plaintiff filed a motion to
reconsider on the ground that ‘‘[t]his matter has been
fully, exhaustively litigated in its entirety.’’ In support
of that argument, the plaintiff referred to the prior
denial of the defendant’s motion for summary judgment
and the defendant’s failure to appeal from that ruling.
In her motion, she reasserted her argument that she
was entitled to a jury trial but also argued that the duty
to defend should not be ‘‘relitigated’’ because it already
had been decided by Judge Swienton when she denied
the defendant’s motion for summary judgment.
The next day, Judge Moore denied the plaintiff’s
motion to reconsider, explaining: ‘‘[T]he underlying
order, which is the subject of this motion to reargue or
reconsider, did not, as the [plaintiff] appears to believe,
strike the plaintiff’s jury claim. Rather, [it] simply ruled
that the issue of the duty to defend, which had not been
decided in the summary judgment ruling, shall be staged
first. Since the issue of the duty to defend is a purely
legal one, it will be heard by the court. If the plaintiff
succeeds on this threshold issue of the duty to defend,
the defendant will be estopped from challenging the
amount of the underlying judgment. What the [plaintiff]
needs to understand is that the order on the defendant’s
motion for summary judgment, which was decided on
the basis that there were outstanding issues of fact,
cannot have decided the issue of the defendant’s duty to
defend its insured, for the following reasons. A court’s
decision on the duty to defend is a purely legal question
that involves comparing the allegations of the operative
complaint to the policy language through the lens of
Connecticut law on how the duty to defend shall be
interpreted. Since the judge who denied summary judg-
ment did so on the basis of outstanding genuine issues
of fact, she did not decide the issue of the duty to defend,
which is a purely legal issue. Moreover, although the
defendant raised the issue of a defense duty in its sum-
mary judgment motion, the court that ruled on the sum-
mary judgment motion did not decide that duty in its
decision. Finally, the plaintiff did not move for summary
judgment when opposing the defendant’s motion for
summary judgment and the court’s findings when deny-
ing the motion for summary judgment cannot be used
at this time to support judgment for the plaintiff.’’
On January 16, 2019, following a trial management
conference, Judge Moore issued another order: ‘‘The
court has concluded that the sole issue to be taken up
during the first stage of this trial shall be whether the
defendant breached its duty to defend its insured in the
underlying case. Based upon what this court has found,
both previously and also in this order, this is a legal
question to be decided by the court. This court, since it
attempted to settle this case, will ask the civil presiding
judge to assign the first stage of this trial to another
judge for a hearing in the near future. The parties should
take up the issue of briefing—whether to, and when
to—with the judge to whom the hearing is assigned
after the matter has been set down for a hearing.’’
The matter was thereafter assigned to the court, Aur-
igemma, J., for trial of the issue of whether the defen-
dant owed a duty to Copa Entertainment in the underly-
ing action. The parties filed briefs in support of their
respective positions. Both parties also filed written
waivers of oral argument and asked the court to decide
the issue on the papers. By way of a memorandum of
decision dated April 16, 2019, Judge Aurigemma con-
cluded that the defendant had no duty to defend Copa
Entertainment because the applicable insurance policy
did not permit recovery for injuries sustained from an
assault.
On May 7, 2019, Judge Moore issued the following
order: ‘‘The court orders counsel to brief the issue of
whether this decision is dispositive of all of the issues
in the case and whether, as a result, judgment shall
enter. The briefs shall be filed on or before 6/4/19 at 5
p.m., and shall indicate whether or not argument is
requested.’’ Judge Moore then supplemented his order
as follows: ‘‘The court schedules oral argument on the
issues raised in this order and in the briefs filed pursuant
to this order on 7/31/19 at 9:30 a.m.’’ Both parties filed
briefs, as ordered, wherein the plaintiff argued that
Judge Aurigemma’s decision was not dispositive of all
of the issues in this case, and the defendant argued that
it was dispositive. In their respective briefs, both parties
expressly waived oral argument, so Judge Moore con-
sidered this issue on the briefs.
On July 30, 2019, Judge Moore issued an order con-
cluding that Judge Aurigemma’s decision on the duty
to defend disposed of all of the issues in the case, and
he rendered judgment in favor of the defendant on all
of the counts of the plaintiff’s complaint.
On August 19, 2019, the plaintiff filed a motion to
reargue on the ground that Judge Moore should not
have heard this case after he pretried it. She argued
that Judge Moore had acknowledged the potential of
an appearance of impropriety in his bifurcation order,
when he ordered the duty to defend to be assigned to
a different judge. The plaintiff asserted: ‘‘If the judge
suspected the appearance of impropriety, having unsuc-
cessfully pretried the case numerous times, then the
avoidance of the appearance of impropriety by this
judge should extend to the bifurcation and the final
ruling on duty to defend and the entire case as well
past the pretrials.’’ On that ground, the plaintiff argued:
‘‘[T]his case should have what the court believes are
its operative rulings negated and the matter should be
set down for a trial de novo to a jury as was the direction
this case was headed before the bifurcation by the judge
who later sought to avoid the appearance of impropri-
ety.’’
On August 22, 2019, Judge Moore denied the plaintiff’s
motion to reargue. He first concluded that the motion
‘‘fail[ed] to articulate any . . . [valid legal reason] that
would permit the court to allow reargument or to recon-
sider its decision . . . holding that Senior Judge Auri-
gemma’s decision on the duty to defend is dispositive
of all of the issues in this case.’’ Judge Moore also
addressed the plaintiff’s recusal argument and
explained: ‘‘The reason that this court asked another
judge to decide the defense duty issue was that this
court had made statements to counsel about the relative
strength and/or weaknesses of the parties’ arguments
on the defense duty issue in depth both in private and
public sessions during the pretrial settlement confer-
ence.3 The court denies the instant motion for the fol-
lowing reasons. This court, J. Moore, J., made it clear
to the parties that it would be the judge deciding the
issues set forth in [its] order [in docket entry] #172 [that
determined whether Judge Aurigemma’s decision on
the duty to defend was dispositive]. It was this court,
J. Moore, J., who invited briefing from the parties in
[docket entry] #167. This court discussed its vacation
schedule with the parties in attempting to set down
oral argument in [its] order [in docket entry] #170.01.
This court indicated that it would take the issues dis-
cussed in the parties’ briefs, [docket entries] ##168 and
169, on the papers in [its] order [in docket entry]
#171.01. It was eminently clear to counsel for both par-
ties, long prior to the court issuing [its] order [in docket
entry] #172, that this court, J. Moore, J., would decide
whether Senior Judge Aurigemma’s defense duty deci-
sion was dispositive of all issues in this case. Counsel
for the plaintiff had ample opportunity to raise any
perceived conflicts with this court deciding this issue
prior to this issue being decided. Counsel for the plain-
tiff never raised this issue in writing and waived oral
argument. To raise such claims of judicial conflict at
this point is a classic case of seeking a second bite at
the apple.’’ (Footnote in original.) This appeal followed.
I
The plaintiff first claims that the trial court erred
when it ‘‘ordered’’ the defendant’s claim that it had no
duty to defend Copa Entertainment ‘‘to be relitigated’’
because ‘‘the court should have accepted the ruling of
the court, Swienton, J.,’’ ‘‘on the first summary judg-
ment.’’4 We disagree.
We construe the plaintiff’s argument in this regard
as pertaining to the law of the case doctrine. ‘‘The law
of the case doctrine provides that when a matter has
previously been ruled upon interlocutorily, the court in
a subsequent proceeding in the case may treat that
decision as the law of the case, if it is of the opinion
that the issue was correctly decided, in the absence of
some new or overriding circumstance. . . . The law of
the case is not written in stone but is a flexible principle
of many facets adaptable to the exigencies of the differ-
ent situations in which it may be invoked. . . . A judge
is not bound to follow the decisions of another judge
made at an earlier stage of the proceedings, and if the
same point is again raised he has the same right to
reconsider the question as if he had himself made the
original decision. . . . [O]ne judge may, in a proper
case, vacate, modify, or depart from an interlocutory
order or ruling of another judge in the same case, upon
a question of law.’’ (Emphasis added; internal quotation
marks omitted.) Barnes v. Connecticut Podiatry
Group, P.C., 195 Conn. App. 212, 231 n.16, 224 A.3d
916 (2020).
‘‘A judge should hesitate to change his own rulings
in a case and should be even more reluctant to overrule
those of another judge. . . . Nevertheless, if . . . [a
judge] becomes convinced that the view of the law
previously applied by his coordinate predecessor was
clearly erroneous and would work a manifest injustice
if followed, he may apply his own judgment. . . . From
the vantage point of an appellate court it would hardly
be sensible to reverse a correct ruling by a second judge
on the simplistic ground that it departed from the law
of the case established by an earlier ruling. . . . In an
appeal to this court [in which] views of the law
expressed by a judge at one stage of the proceedings
differ from those of another at a different stage, the
important question is not whether there was a differ-
ence but which view was right.’’ (Citation omitted; inter-
nal quotation marks omitted.) Brown v. Otake, 164
Conn. App. 686, 703, 138 A.3d 951 (2016).
The plaintiff’s argument that the trial court erred in
not applying the law of the case doctrine and was bound
by the earlier denial of summary judgment on the duty to
defend fails for two reasons. First, in denying summary
judgment, Judge Swienton held only that genuine issues
of fact existed that precluded it from holding that the
defendant was entitled to judgment as a matter of law.
In denying summary judgment, Judge Swienton did not,
as the plaintiff seems to argue, conclude that the plain-
tiff was entitled to judgment on that issue.5 Because
the denial of summary judgment is not a final judgment;
see First Merchants Group Ltd. Partnership v. Ford-
ham, 138 Conn. App. 220, 224, 50 A.3d 963, cert. denied,
307 Conn. 937, 56 A.3d 716 (2012); the duty to defend
issue was not resolved on summary judgment and fur-
ther proceedings were required for its resolution.
Moreover, as explained herein, the law of the case
doctrine recognizes that a trial judge may choose to
reach a contrary conclusion on an issue of law pre-
viously decided if the judge is convinced that the prior
ruling was wrong. See Brown v. Otake, supra, 164 Conn.
App. 703. That is precisely what occurred in this case.
Judge Moore noted that Judge Swienton concluded that
genuine issues of material fact existed that precluded
her from granting the defendant’s motion for summary
judgment, but he disagreed because, as our Supreme
Court has held, the question of whether the defendant
owed a duty to defend was purely a legal issue to be
decided by the court. We agree. See Moore v. Continen-
tal Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252
(2000) (question of whether insurer has duty to defend
its insured is purely question of law). Accordingly, the
law of the case doctrine did not preclude Judge Moore
from concluding that the legal question of the existence
of a duty to defend needed to be decided before a jury
trial could be held to address any remaining factual
issues.
II
The plaintiff also claims that the trial court improp-
erly deprived her of her right to a jury trial on the issue
of whether the defendant had a duty to defend Copa
Entertainment in the underlying action. We disagree.
General Statutes § 52-216 provides in relevant part:
‘‘The court shall decide all issues of law and all ques-
tions of law arising in the trial of any issue of fact; and,
in committing the action to the jury, shall direct them
to find accordingly. The court shall submit all questions
of fact to the jury, with such observations on the evi-
dence, for their information, as it thinks proper, without
any direction as to how they shall find the facts. . . .’’
See also Practice Book § 16-9.
Although the plaintiff failed to provide this court with
the transcript of the hearing on this issue, which was
held on December 10, 2018, we note that she strenu-
ously had argued against having her deposition taken
on the ground that the only evidence necessary to
resolve the issues presented in this case were the opera-
tive complaint and the subject insurance policy. When
asked during oral argument before this court which
facts remained at issue for a jury to decide in this case,
the plaintiff’s counsel responded that the jury needs to
interpret the pleadings. It is well settled that ‘‘[t]he
interpretation of pleadings is always a question of law
for the court . . . .’’ (Internal quotation marks omit-
ted.) Manere v. Collins, 200 Conn. App. 356, 366, 241
A.3d 133 (2020). Likewise, as noted herein, the issue of
whether an insurer owes a duty to defend is also a
legal issue to be determined by the court. Moore v.
Continental Casualty Co., supra, 252 Conn. 409.
Accordingly, the plaintiff was not entitled to a jury trial
on the issue of whether the defendant had a duty to
defend Copa Entertainment.
III
Finally, the plaintiff claims that Judge Moore should
have recused himself from this case to avoid the appear-
ance of impropriety after he was involved in pretrial
settlement negotiations. Specifically, the plaintiff
argues that ‘‘[t]he trial court erred when J. Moore, J.
did not remain recused after prior recusal on account
of having unsuccessfully pretried the case.’’ In so
arguing, the plaintiff essentially challenges the impar-
tiality of the court. Despite the gravity of such a claim,
the plaintiff’s brief is devoid of any citations to the trial
court record that reflect when Judge Moore pretried
the case or his alleged recusal from it. The plaintiff’s
brief also lacks any legal authority to support her asser-
tions.
Despite the deficiencies of the plaintiff’s brief,6 our
review of the record reveals that the plaintiff raised the
issue of a potential appearance of impropriety in her
August 19, 2019 motion to reargue Judge Moore’s deter-
mination that Judge Aurigemma’s ruling on the duty to
defend issue was dispositive of all of the plaintiff’s
claims against the defendant in this case. The plaintiff
did not cite any legal authority in support of this argu-
ment in her motion to reargue, nor has she done so in
her brief to this court. As noted herein, prior to deciding
that Judge Aurigemma’s decision was dispositive of all
of the plaintiff’s claims, the parties were afforded, by
Judge Moore, the opportunity to file briefs in support
of their respective positions. The plaintiff did not, in
her brief to Judge Moore, raise the issue that he should
be recused from this case, nor did she, at any point
prior to her receipt of Judge Moore’s ruling, suggest
that he not be involved in this case.
To be sure, ‘‘[w]hen a judge engages in a pretrial
settlement discussion in a court case, he should auto-
matically disqualify himself from presiding in the case
in order to eliminate any appearance of impropriety
and to avoid subtle suspicions of prejudice or bias.’’
Timm v. Timm, 195 Conn. 202, 204, 487 A.2d 191 (1985).
That principle, however, is founded on the notion that
‘‘[w]hen . . . a judge engages in [discussions] looking
to the settlement of a case . . . in which he will be
called upon to decide the issues of liability and damages
. . . [i]t is . . . impossible to avoid questions as to
whether the judge can disregard . . . matters dis-
closed in the conference . . . and whether a prelimi-
nary judgment, formed at the conference and predi-
cated on unsubstantiated claims of proof, may have
some subtle influence on a final judgment after a full
hearing. . . . It is inevitable that the basis is laid for
suspicion, no matter how unfounded or unjustified it
may be, and that failure to concur in what the judge
may consider an adequate settlement may result in the
imposition, upon a litigant or his counsel, of some retrib-
utive sanction or the incurrence of judicial displeasure.’’
(Internal quotation marks omitted.) Carvalhos
Masonry, LLC v. S & L Variety Contractors, LLC, 180
Conn. App. 237, 240–41, 183 A.3d 697 (2018).
Judge Moore did not play any role in deciding the
issues of liability or damages in this case. Judge Auri-
gemma decided the issue of liability and, having found
that the defendant was not liable, there was no issue
of damages to be decided. Judge Moore did not, as the
plaintiff contends, ‘‘rule himself on the remaining issues
in the case’’ after Judge Aurigemma determined that the
defendant had no duty to defend the plaintiff. Because
Judge Moore did not, in any way, perform the role of
a ‘‘trier’’ of the issues of liability or damages in this
case, there was no danger of him using any information
to which he may have become privy during settlement
negotiations against the plaintiff. Rather, Judge Moore’s
conclusion that Judge Aurigemma’s ruling was disposi-
tive of all of the issues in this case was administrative
in nature. Accordingly, Judge Moore was not required
to recuse himself from this case.
Moreover, as noted herein, Judge Moore rejected the
plaintiff’s argument that he should have recused himself
on the ground that the parties had been made aware that
the matter would appear before Judge Moore following
Judge Aurigemma’s decision but the plaintiff did not
raise the issue of a potential appearance of impropriety
until after she received a decision that was adverse to
her.7 It is clear that the plaintiff’s claim that Judge Moore
should have recused himself from this case arises solely
from the adverse ruling entered against her, which may
not form the basis for a claim of judicial bias. See, e.g.,
Tracey v. Tracey, 97 Conn. App. 278, 284–85, 903 A.2d
679 (2006) (‘‘it is clear that adverse rulings by the judge
do not amount to evidence of bias sufficient to support
a claim of judicial disqualification’’ (internal quotation
marks omitted)).
We finally note that ‘‘[s]peculation is insufficient to
establish an appearance of impropriety. . . . [A] fac-
tual basis is necessary to determine whether a reason-
able person, knowing all of the circumstances, might
reasonably question the trial judge’s impartiality. . . .
Vague and unverified assertions of opinion, speculation
and conjecture cannot support a motion to recuse
. . . .’’ (Internal quotation marks omitted.) McKenna
v. Delente, 123 Conn. App. 137, 144, 1 A.3d 260 (2010).
Because the plaintiff’s brief is bereft of any legal or
factual analysis supporting her argument that Judge
Moore should have recused himself, she has failed to
set forth a factual basis on which a reasonable person
might reasonably have questioned his impartiality.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the statement of issues contained in her appellate brief, the plaintiff
purports to set forth nine enumerated issues on appeal. In the table of
contents of her brief, the plaintiff sets forth eight claims. The corresponding
page numbers that are listed for each claim are inaccurate. In addition, the
majority of the plaintiff’s claims are inadequately briefed or briefed in an
obscure manner and devoid of any supporting legal authority. Our recitation
of the claims set forth herein is based on a very generous interpretation of
her brief. See Starboard Fairfield Development, LLC v. Gremp, 195 Conn.
App. 21, 31, 223 A.3d 75 (2019) (‘‘We are not required to review issues that
have been improperly presented to this court through an inadequate brief.
. . . Analysis, rather than [mere] abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly. . . . We
do not reverse the judgment of a trial court on the basis of challenges to
its rulings that have not been adequately briefed.’’ (Internal quotation marks
omitted.)).
2
The plaintiff did not provide the transcript of the December 10, 2018
hearing to this court.
3
‘‘Conversely, the court did not present any substantive previews or opin-
ions as to whether a decision on the duty to defend would be dispositive
of all issues in the case during pretrial settlement discussions.’’
4
We note that the record reflects that only one motion for summary
judgment was filed and heard in this case.
5
In fact, Judge Swienton did not expressly address the issue of whether
the defendant had a duty to defend Copa Entertainment. Judge Swienton
expressly referenced only the defendant’s duty to indemnify.
6
In her brief to this court, the plaintiff argues: ‘‘Perhaps it is only merely
by prudence or custom that Superior Court judges always recuse themselves
from being triers in cases which they have actively pretried. Most commonly
judges become privy to facts and other information in the settlement efforts
of a pretrial that would not be admissible at trial. As well, judges will
sometimes tip their hand as to how they will rule on a matter in the setting
of a pretrial as it could facilitate settlement and judges don’t sit on cases
they pretry. For these and other obvious reasons it was at least imprudent
for [Judge Moore] to pretry this case various times over a long period of
time and following that [to] make an assignment out to another judge to
reconsider a prior judge’s ruling on a motion for summary judgment and
then to rule himself on the remaining issues in the case. The appearance
at least of impartiality should be afforded this plaintiff.’’ This comprises the
entirety of the plaintiff’s claim.
7
Although the plaintiff raises this claim in her motion to reargue, she has
not appealed from this ruling, either by citing it on her appeal form or by
briefing it in any meaningful way.