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--- A.3d ----, 157 Conn.App. 312, 2015 WL 2190773 (Conn.App.), 31 A.D. Cases 1065
Judges and Attorneys
Appellate Court of Connecticut.
Michael TOMICK
v.
UNITED PARCEL SERVICE, INC., et al.
No. 35896.
Argued Oct. 20, 2014.
Decided May 19, 2015.
Background: Former employee brought action against employer, and the Superior
Court entered judgment on jury verdict awarding employee damages, including
punitive damages, for negligent infliction of emotional distress, drug testing statute
violation, and disability discrimination under state law. Employer appealed the
denial of its motion for a directed verdict, and the Appellate Court, 135 Conn.App.
589, 43 A.3d 722, reversed in part and remanded for the Superior Court to apply the
correct legal standard. The Superior Court, Judicial District of New London, 2013 WL
3970230, Cosgrove, J., denied employer's motion for directed verdict. Employer
appealed and employee cross appealed.
Holdings: The Appellate Court, DiPentima, C.J., held that:

(1) employee was not required to show he was qualified in order to make a prima
facie case of discrimination, and
(2) as a matter of first impression, statute allowing discrimination complainant legal
and equitable relief does not provide for punitive damages.
Affirmed.
West Headnotes
[1] KeyCite Citing References for this Headnote

30 Appeal and Error
30XVI Review
30XVI(A) Scope, Standards, and Extent, in General
30k862 Extent of Review Dependent on Nature of Decision Appealed from
30k866 On Appeal from Decision on Motion for Dismissal or Nonsuit or
Direction of Verdict
30k866(3) k. Appeal from ruling on motion to direct verdict. Most Cited
Cases
30 Appeal and Error KeyCite Citing References for this Headnote

30XVI Review
30k867 On Appeal from Decision on Motion for New Trial or After Grant of
New Trial
30k867(1) k. In general. Most Cited Cases
Standards of review for the denial of a motion for a directed verdict and denial of a
motion to set aside a verdict are the same.
30 Appeal and Error

30XVI Review
30XVI(H) Discretion of Lower Court
30k976 New Trial or Rehearing
30k977 In General
30k977(3) k. Grant of new trial in general. Most Cited Cases

30XVI Review
30k977 In General
30k977(5) k. Refusal of new trial. Most Cited Cases
The proper appellate standard of review when considering the action of a trial court
granting or denying a motion to set aside a verdict is the abuse of discretion
standard.
30 Appeal and Error

30XVI Review
30k866 On Appeal from Decision on Motion for Dismissal or Nonsuit or
Direction of Verdict
30k866(3) k. Appeal from ruling on motion to direct verdict. Most Cited
Cases

30XVI Review
30XVI(G) Presumptions
30k927 Dismissal, Nonsuit, Demurrer to Evidence, or Direction of Verdict
30k927(7) k. Effect of evidence and inferences therefrom on direction of
verdict. Most Cited Cases
Review of a trial court's refusal to direct a verdict takes place within carefully
defined parameters; the reviewing court must consider the evidence, including
reasonable inferences which may be drawn therefrom, in the light most favorable to
the parties who were successful at trial giving particular weight to the concurrence
of the judgments of the judge and the jury, who saw the witnesses and heard the
testimony.
30 Appeal and Error

30XVI Review
30k977 In General
30k977(3) k. Grant of new trial in general. Most Cited Cases
388 Trial KeyCite Citing References for this Headnote

388VI Taking Case or Question from Jury
388VI(D) Direction of Verdict
388k167 Nature and Grounds
388k168 k. In general. Most Cited Cases
Directed verdicts are not favored and as a general rule, the decision to set aside a
verdict entails the exercise of a broad legal discretion that, in the absence of clear
abuse, the reviewing court will not disturb.
30 Appeal and Error

30XVI Review
30k838 Questions Considered
30k842 Review Dependent on Whether Questions Are of Law or of Fact
Questions of law require plenary review by the appellate courts.
78 Civil Rights
78II Employment Practices
78k1137 k. Motive or intent; pretext. Most Cited Cases
A mixed-motive case of discrimination exists when an employment decision is
motivated by both legitimate and illegitimate reasons.
78 Civil Rights
In a mixed-motive case of employment discrimination, a plaintiff must demonstrate
that the employer's decision was motivated by one or more prohibited statutory
factors.
78 Civil Rights
78V State and Local Remedies
78k1742 Evidence
78k1744 k. Employment practices. Most Cited Cases
In a mixed-motive case of employment discrimination, whether through direct
evidence or circumstantial evidence, a plaintiff must submit enough evidence that,
if believed, could reasonably allow a fact finder to conclude that the adverse
employment consequences resulted because of an impermissible factor.
78 Civil Rights
The critical inquiry in a mixed-motive case of employment discrimination is whether
a discriminatory motive was a factor in the employment decision at the moment it
was made.
78 Civil Rights
78 Civil Rights KeyCite Citing References for this Headnote

78k1742 Evidence
Under the mixed-motive case of employment discrimination model, the plaintiff's
prima facie case requires that the plaintiff prove by a preponderance of the
evidence that he or she is within a protected class and that an impermissible factor
played a motivating or substantial role in the employment decision.
78 Civil Rights
78k1742 Evidence
In a mixed-motive case of employment discrimination, once the plaintiff has
established his prima facie case, the burden of production and persuasion shifts to
the defendant.
78 Civil Rights
78 Civil Rights KeyCite Citing References for this Headnote

78k1742 Evidence
After a plaintiff has established his prima facie case in a mixed-motive case of
employment discrimination and the burden shifts to defendant, the defendant may
avoid a finding of liability only by proving by a preponderance of the evidence that it
would have made the same decision even if it had not taken the impermissible
factor into account.
78 Civil Rights
78k1742 Evidence
The pretext/ McDonnell Douglas Corp.- Burdine framework, and not the mixed-
motive model for evaluating employment discrimination cases, applied to former
employee's state-law claim of disability discrimination, where employee argued that
employer's stated reason for employee's termination was not believable and that
employer was looking for a gotcha moment, a reason, and every possible excuse
to terminate. C.G.S.A. 46a60.
78 Civil Rights
78k1102 Constitutional and Statutory Provisions
78k1104 k. Purpose and construction in general. Most Cited Cases
106 Courts KeyCite Citing References for this Headnote

106II Establishment, Organization, and Procedure
106II(G) Rules of Decision
106k88 Previous Decisions as Controlling or as Precedents
106k97 Decisions of United States Courts as Authority in State Courts
State courts look to federal law for guidance on interpreting state employment
discrimination law, and the analysis is the same under both.
106 Courts
106k97 Decisions of United States Courts as Authority in State Courts
106k97(6) k. Construction of state Constitutions and statutes. Most Cited
Cases
Decisions of the United States Supreme Court or lower federal courts are not
binding on state courts tasked with interpreting state statutes; rather, the state is
the final arbiter of its own laws.
78 Civil Rights
78k1118 k. Practices prohibited or required in general; elements. Most Cited
Cases
In general, to establish a prima facie case of discrimination under the McDonnell
Douglas Corp.- Burdine framework, the complainant must demonstrate that (1) he is
in the protected class, (2) he was qualified for the position, (3) he suffered an
adverse employment action, and (4) adverse action occurred under circumstances
giving rise to an inference of discrimination.
78 Civil Rights
78k1742 Evidence
The level of proof required to establish a prima facie case of employment
discrimination under the McDonnell Douglas Corp.- Burdine framework is minimal
and need not reach the level required to support a jury verdict in the plaintiff's
favor.
78 Civil Rights
78k1742 Evidence
Under the McDonnell Douglas Corp.- Burdine framework, the burden of persuasion
remains with the plaintiff to prove employment discrimination.
78 Civil Rights
78k1742 Evidence
Once the plaintiff establishes a prima facie case of employment discrimination
under the McDonnell Douglas Corp.- Burdine framework, the burden of production
shifts to the defendant to rebut the presumption of discrimination by articulating,
not proving, some legitimate, nondiscriminatory reason for the plaintiff's rejection.
78 Civil Rights
78k1742 Evidence
The McDonnell Douglas Corp.- Burdine framework does not shift the burden of
persuasion that employment discrimination did not occur to the defendant.
78 Civil Rights
78k1742 Evidence
Under the McDonnell Douglas Corp.- Burdine framework, the defendant need not
persuade the court that it was actually motivated by the proffered legitimate
nondiscriminatory reason for plaintiff's employment rejection, but rather it is
sufficient if the defendant's evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.
78 Civil Rights
78k1742 Evidence
Under the McDonnell Douglas Corp.- Burdine framework, once the defendant offers
a legitimate, nondiscriminatory reason for plaintiff's employment rejection, the
plaintiff then has an opportunity to prove by a preponderance of the evidence that
the proffered reason is pretextual.
78 Civil Rights
78k1742 Evidence
The prima facie case requirements under the McDonnell Douglas Corp.- Burdine
framework for employment discrimination are meant to be flexible.
78 Civil Rights
78k1118 k. Practices prohibited or required in general; elements. Most Cited
Cases
If the question of whether plaintiff was qualified for the position is not relevant to
the main question of whether there was employment discrimination, no such
showing is necessary on the part of the plaintiff to make a prima facie case under
the McDonnell Douglas Corp.- Burdine framework.
78 Civil Rights
78k1215 Discrimination by Reason of Handicap, Disability, or Illness
78k1218 Who Is Disabled; What Is Disability
78k1218(4) k. Employment qualifications, requirements, or tests. Most Cited
Cases
The McDonnell Douglas Corp.- Burdine framework does not create a fundamental
requirement that a plaintiff bringing a claim of disability discrimination must be
capable of performing his/her essential job functions as of the date of the adverse
employment action being challenged.
78 Civil Rights
78k1215 Discrimination by Reason of Handicap, Disability, or Illness
78k1218 Who Is Disabled; What Is Disability
78k1218(4) k. Employment qualifications, requirements, or tests. Most Cited
Cases
The question of whether employee's recent injury rendered him unqualified to
perform the essential duties of his position at the time of his termination, ostensibly
for violating employer's workplace violence policy by stating he should have beaten
up his manager, was not relevant, and therefore employee was not required to show
he was qualified in order to make prima facie case under McDonnell Douglas Corp.-
Burdine framework for his state-law disability discrimination claim; employee was
already employed by employer, employee's qualifications for the position held were
not being challenged by employer, and employer could not have relied on
employee's alleged lack of qualification for the position at the time it terminated
him because the extent of employee's injury was unknown. C.G.S.A. 46a60.
275 New Trial

275II Grounds
275II(F) Verdict or Findings Contrary to Law or Evidence
275k66 k. Verdict contrary to law or instructions. Most Cited Cases
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275II Grounds
275II(F) Verdict or Findings Contrary to Law or Evidence
275k67 Verdict Contrary to Evidence
The trial court possesses inherent power to set aside a jury verdict which, in the
court's opinion, is against the law or the evidence.
30 Appeal and Error

30XVI Review
30k838 Questions Considered
30k842 Review Dependent on Whether Questions Are of Law or of Fact
Reviewing courts employ a plenary standard of review in deciding the question of
statutory interpretation.
361 Statutes
361III Construction
361III(L) Determination of Construction
361k1342 k. Application of statute to subject matter or facts. Most Cited
Cases
When construing a statute, courts seek to determine, in a reasoned manner, the
meaning of the statutory language as applied to the facts of the case.

361 Statutes
361III Construction
361III(C) Clarity and Ambiguity; Multiple Meanings
361k1103 Resolution of Ambiguity; Construction of Unclear or Ambiguous
Statute or Language
361k1104 k. In general; factors considered. Most Cited Cases
When a statute is not plain and unambiguous, courts look for interpretive guidance
to the legislative history and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to its relationship to existing
legislation and common law principles governing the same general subject matter.
361 Statutes
361III Construction
361III(E) Statute as a Whole; Relation of Parts to Whole and to One Another
361k1156 k. Superfluousness. Most Cited Cases
361 Statutes KeyCite Citing References for this Headnote

361III Construction
361III(M) Presumptions and Inferences as to Construction
361k1372 Statute as a Whole; Relation of Parts to Whole and to One Another
361k1374 k. Giving effect to entire statute and its parts; harmony and
superfluousness. Most Cited Cases
Statutes should be construed so that no part of a legislative enactment is to be
treated as insignificant and unnecessary, and there is a presumption of purpose
behind every sentence, clause, or phrase in a legislative enactment.
78 Civil Rights
78k1767 Exemplary or Punitive Damages
Statute stating court may grant a discrimination complainant legal and equitable
relief which it deems appropriate including, but not limited to, temporary or
permanent injunctive relief, attorney's fees, and court costs does not provide for
punitive damages. C.G.S.A. 46a104.

115 Damages
115V Exemplary Damages
115k94 Measure and Amount of Exemplary Damages
115k94.5 k. Costs of litigation. Most Cited Cases
Common-law punitive damages, if awarded, are restricted to cost of litigation less
taxable costs of the action being tried.
361 Statutes
361III Construction
361III(G) Other Law, Construction with Reference to
361k1203 Common or Civil Law
361k1206 Statutory Alteration or Abrogation of Common Law
361k1206(2) k. Plain, literal, or clear meaning of statute; ambiguity. Most
Cited Cases
361 Statutes KeyCite Citing References for this Headnote

361III Construction
361III(M) Presumptions and Inferences as to Construction
361k1381 Other Law, Construction with Reference to
361k1386 k. Change in law. Most Cited Cases
A court will not interpret a statute to have the effect of altering prior statutory or
common law unless the language of the statute clearly expresses an intent to have
such an effect.
106 Courts
106k92 k. Dicta. Most Cited Cases
Dictum includes those discussions that are merely passing commentary, those
that go beyond the facts at issue, and those that are unnecessary to the holding in
the case.
Michael C. Harrington, with whom were Stella Szantova Giordano and, on the brief,
Jennifer A. Corvo, Hartford, for the appellant-appellee (named defendant).
Michael D. Colonese, Norwich, with whom, on the brief, was Cassie N. Jameson, for
the appellee-appellant (plaintiff).
Marc P. Mercier filed a brief for the Connecticut Employment Lawyers Association as
amicus curiae.
Charles Krich, principal attorney, filed a brief for the Commission on Human Rights
and Opportunities as amicus curiae.
DiPENTIMA, C.J., and BEACH and PRESCOTT, Js.
DiPENTIMA, C.J.
**1 *314 This employment discrimination case returns to this court following our
remand to the trial court for a determination of the date of the adverse
employment decision and whether the plaintiff was qualified to perform the
essential duties of his position at that time. Tomick v. United Parcel Service, Inc.,
135 Conn.App. 589, 613, 43 A.3d 722 ( Tomick I ), cert. denied, 305 Conn. 920, 47
A.3d 389 (2012). We instructed the court that it was not precluded from
reconsidering the issue of which analytical framework should be applied and what
each framework requires the plaintiff to establish to make out a prima facie case.
Id., at 613 n. 17, 43 A.3d 722. On appeal, the defendant United Parcel Service,
Inc.,FN1 argues that the trial court abused its discretion in denying the defendant's
motion for a directed verdict because the plaintiff, Michael Tomick, failed to
establish a prima facie case of disability discrimination pursuant to General Statutes
46a60.FN2 Specifically, the defendant claims that the court erred in finding that
(1) the adverse employment action occurred on December 1 or 2, 2004, and (2) the
plaintiff was qualified to *315 perform the essential functions of his job on that date.
In his cross appeal, the plaintiff argues that the court improperly set aside the
award of punitive damages on the ground that such an award was not authorized by
General Statutes 46a104. We affirm the judgment of the court.
The plaintiff brought this employment discrimination action against the defendant,
claiming, inter alia, that the defendant terminated his employment in violation of
46a60 (count six). The facts that the jury reasonably could have found were set
forth by this court in Tomick I and are as follows: The plaintiff worked as a package
car driver for the defendant. On January 3, 2003, the plaintiff suffered a back injury
during the course of his employment. He received a 13 percent permanent disability
of his lumbar spine. The plaintiff took a leave of absence until November, 2003,
when he returned to work with no restrictions.
On November 30, 2004, the plaintiff reinjured his back when he stepped off a stoop
while delivering a package. He sent an electronic message to the [defendant's
Norwich] center informing the defendant of his situation and completed his route.
That evening, [Kevin] Trudelle [the business manager of the defendant's
Norwich/Niantic center] discussed the injury with Michael Hebert, the plaintiff's
direct supervisor, and Hebert notified the defendant's insurance carrier of the
accident.
The next morning, December 1, the plaintiff was experiencing back pain. He called
the center to request the day off to recover. Trudelle approved the absence and
instructed the plaintiff to seek medical treatment. The plaintiff was examined at
Pequot Medical Center, where he indicated to the treating physician that he needed
to be released for full duty because it was the peak season for the defendant's
business. The plaintiff told the physician that he would be able to perform his *316
job with a helper, and the physician released the plaintiff for full duty. The plaintiff
called Trudelle to inform him that he was released for full duty and requested a
helper for the day. Trudelle told the plaintiff that he would have a helper that day,
but he did not then take any steps to ensure that the plaintiff would be assigned a
helper to his route....
**2 On December 2, the plaintiff returned to work. When he arrived that morning,
he was told by both the pre-loader who was loading his truck and Hebert that he
was going to have a helper. Because the plaintiff was returning to work after an
injury, Hebert accompanied the plaintiff for a portion of his route that morning to
evaluate his knowledge of safety methods, as was standard practice.
After completing the training, Hebert instructed the plaintiff to meet a helper at a
specified location at noon. The helper was not in the designated meeting location at
that time, so the plaintiff contacted the center by electronic message. The plaintiff
also called Trudelle to inquire about the helper. Trudelle told the plaintiff that it was
the first he had heard that the plaintiff did not have a helper and transferred him to
Mark Appleton, a human resources supervisor and the helper coordinator. Appleton
was not aware that the plaintiff was supposed to be assigned a helper that day, but
began looking for a helper.
At that time, the plaintiff called his wife. He told her that he had not been assigned
a helper that day and that he was in significant pain. He also told her he would be
coming home for lunch, as was typical. The plaintiff then sent several messages to
the center to communicate that he was going home for lunch, that he needed to
come off the road and that he needed to see a physician. On the way to his home,
the plaintiff *317 received a message instructing him to call Trudelle immediately.
When the plaintiff arrived home, he found his wife crying, and she told him that
she had called Trudelle. The plaintiff's wife told Trudelle that she thought her
husband was being singled out and that she thought he was going to have a
nervous breakdown. Trudelle told the plaintiff's wife that the plaintiff was not being
honest and that he had gone above and beyond to help the plaintiff. The plaintiff
called Trudelle from his home, as instructed, and told him that his back was still
hurting and that he needed to see a physician. Trudelle told the plaintiff that if he
couldn't do the fucking job, [to] bring the fucking truck back to the building.
Trudelle then asked if the plaintiff wanted anybody to come pick up the truck or if
the plaintiff could drive it back to the center. The plaintiff said he would bring the
truck back after his lunch break.
When the plaintiff returned to the center, he found another driver waiting to take
over his route. The plaintiff was upset and in physical pain and went to speak with
Trudelle. He asked Trudelle what was going on because he thought he was supposed
to have a helper assigned to his route. Trudelle told the plaintiff that his wife had
called and said that the plaintiff was having a nervous breakdown. The plaintiff said
that he was at his wit's end and needed to see a physician because of his pain.
Trudelle told the plaintiff that he was acting irrationally and that he would be sent
for a fitness for duty test and a substance abuse test. The plaintiff was upset by this
and told Trudelle that he was going to the medical clinic to be seen by a physician
for his back pain. The plaintiff maintained that he would not go for a fitness for duty
test, and Trudelle told him that if he did not go he could be fired. At that point, the
plaintiff believed that his employment had been terminated.
**3 *318 The plaintiff exited Trudelle's office and left the building yelling and
swearing. As he exited, he telephoned his union steward but did not reach him. He
then called his wife, who reviewed the collective bargaining agreement and told the
plaintiff that refusing a fitness for duty test could be a ground for discharge. Trudelle
followed the plaintiff to the parking lot. As the plaintiff reached the lot, supervisor
Ray Congdon was walking up the driveway to the lot. Trudelle was on the telephone
with [Charles A.] Sheahan, [a division manager] describing the situation. Per
Sheahan's instructions, Trudelle informed the plaintiff that they would call the state
police if he got into his car. Trudelle also told the plaintiff that he needed to
accompany him for a fitness for duty test and drug test immediately. When the
plaintiff again refused, Trudelle told him he was fired, and it was again the plaintiff's
understanding that his employment had been terminated. The plaintiff, while
standing approximately ten yards from Trudelle, said, I should have kicked your ass
for what you said to my wife earlier today. Trudelle then told Sheahan over the
telephone that the plaintiff said he might kick [Trudelle's] ass, and the plaintiff
corrected him and said, I didn't say I was going to kick your ass. I said I shoulda.
When the plaintiff again refused to accompany Trudelle to the clinic, Congdon
suggested, as an attempt to defuse the situation, that the plaintiff go with Congdon
to the clinic instead and the plaintiff acquiesced.
The plaintiff was seen at the clinic by Geraldine S. Ruffa, a physician. After
examining the plaintiff, she did not find it necessary to administer a urinalysis drug
test. The physician released the plaintiff back to work, but at a modified duty status
with a lifting restriction of no more than fifteen pounds and minimum bending,
squatting and twisting. She prescribed two medications and reminded the plaintiff
that he should not use them at work or drive while using them because they cause
*319 drowsiness. The plaintiff was to be reevaluated on December 8, 2004.
Congdon called Trudelle from the medical center and informed him that the
physician did not think it was necessary to perform a drug test because the
plaintiff's behavior was explained by the amount of pain he was suffering. Trudelle
told Congdon to instruct the plaintiff to call the center the next morning at nine
o'clock to be told when to report for light duty.
At some point after receiving the call from Congdon, Trudelle spoke to Sheahan.
Trudelle told Sheahan that a drug test was not administered to the plaintiff. After
consultation with Nick Reut, the district labor manager, Sheahan decided that the
plaintiff's employment should be terminated for workplace violence. By the time the
plaintiff arrived for light duty on December 3, Trudelle and Sheahan, with the
assistance of [district risk manager Victor] Birch, had finalized a plan for terminating
the plaintiff's employment.
**4 On December 3, the plaintiff arrived at the center at approximately 8:20 a.m.
to speak with a union representative. He was able to speak briefly with a union
representative, Michael Rabbit, until Trudelle told the plaintiff that the union
representative had work to do, requested that the plaintiff leave the building and
instructed him to call at nine o'clock. The plaintiff waited in his car until nine o'clock
when he called Trudelle from the parking lot. Trudelle requested that the plaintiff
return at about two o'clock that afternoon in casual clothes for temporary alternate
work.
When the plaintiff returned to the center that afternoon, he met in a conference
room with Trudelle, Birch and a union representative, John Fitzgerald. The plaintiff
was asked initially about November 30, the date of his injury. They then discussed
the events of December 2. Trudelle and Birch left the room and determined that
*320 Trudelle would ask the plaintiff to submit to a fitness for duty test. When they
returned to the room, Trudelle asked the plaintiff to submit to the test, and the
plaintiff responded that he would submit to the test. Trudelle and Birch left the room
again to confer, and when they returned Trudelle informed the plaintiff that he
would not be sent for a fitness for duty test. Trudelle told the plaintiff that his
employment was terminated for violating the defendant's policy against workplace
violence, in light of the altercation the prior day. (Footnotes omitted.) Id., at 594
600, 43 A.3d 722.
The subsequent pertinent procedural history of the case is as follows. On

September 29, 2006, the plaintiff filed a seven count complaint against [Trudelle
and the defendant], alleging (1) negligent infliction of emotional distress against the
defendants, (2) intentional infliction of emotional distress against the defendants,
and (3) violations of [General Statutes] 3151x against the defendants. Counts
four and five alleged violations of 42 U.S.C. 12112(a) against the defendant.
Counts six and seven alleged violations of 46a60 (a)(1) against the defendant.
The defendants removed the case to federal District Court by notice of removal on
October 20, 2006.
On December 5, 2006, the plaintiff filed in the District Court an amended complaint
that withdrew his claim in count three against Trudelle. On December 6, 2006, the
defendants filed a motion to dismiss counts one, two, three and seven. The District
Court granted the motion with respect to count seven and denied the motion with
respect to counts one, two and three. On September 20, 2007, the defendants filed
a motion for summary judgment on all remaining counts. The District Court granted
the motion with respect to counts four and five, and remanded the remaining
counts to the Superior Court.
*321 The defendants thereafter filed in the Superior Court a motion for summary
judgment on February 23, 2009, on all remaining counts. The court granted the
motion with respect to count two, but denied it as to the remaining counts.
**5 A jury trial commenced on June 29, 2010. After the plaintiff rested on July 6,
2010, the defendants moved for a directed verdict on counts one, three and six. The
court heard argument on the matter and reserved a decision. On July 9, 2010, the
jury returned a verdict in favor of the plaintiff, answering all twelve interrogatories
in the affirmative. The jury awarded the plaintiff $250,000 for negligent infliction of
emotional distress as to the defendant, $50,000 for negligent infliction of emotional
distress as to Trudelle, $100,000 for a violation of 3151x and $100,000 for
disability discrimination. Additionally, the jury awarded $500,000 in punitive
damages.
Several posttrial motions were filed. On July 19, 2010, the defendants timely
moved to set aside the verdict. On the same day, the defendants also moved to set
aside the award of punitive damages....
On October 28, 2010, the court, in a written decision, decided the remaining
motions. The court denied the defendants' motions to set aside the verdict ... and
granted the defendant's motion to set aside the award of punitive damages. Id., at
600602, 43 A.3d 722. Both the defendant and the plaintiff appealed from the
judgment of the court.
In Tomick I, the defendant argued that the trial court erred in denying its motion for
a directed verdict as to count six because the plaintiff failed to establish a prima
facie case of disability discrimination pursuant to 46a60, specifically as to the
proof that the plaintiff was qualified to perform the essential functions of his job. Id.,
at 610, 43 A.3d 722. The defendant further argued that the court *322 did not
apply precedent holding that the relevant date for determining whether a person is
qualified is the date of the adverse employment action, and incorrectly determined
that the relevant date was the same as that when the termination process
occurred. Id. We agreed with the defendant's argument, but concluded that the
record did not reflect which analytical framework the court applied in determining
whether the plaintiff had met his prima facie case.FN3 Id., at 612, 43 A.3d 722. We
further determined that the finding made by the court that is before us is its
conclusion that the plaintiff was a qualified individual on the operative date. Id. We
thus assumed, without deciding, that the court required the plaintiff to show that
he was a qualified individual at the time of the adverse employment decision so as
to make out a prima facie case. Id. We declined to address the merits of the claim,
however, and remanded the matter to the trial court because [a]bsent factual
findings as to December 2, 2004, or December 3, 2004, the record is inadequate to
ascertain whether the plaintiff would prevail under the correct legal standard. Id.,
at 613, 43 A.3d 722. In doing so, we specifically instructed the court that it was not
precluded from reconsidering the issue of which analytical framework should be
applied and what each framework requires the plaintiff to establish to make out a
prima facie case. FN4 Id., at 613 n. 17, 43 A.3d 722.
**6 On remand, the trial court applied the pretext/ McDonnell Douglas Corp.
Burdine framework, finding *323 it the appropriate test because here the
defendant has offered evidence that it terminated the plaintiff for violation of its
workplace violence [policy], not as a defense, but rather as a response to the
plaintiff's claim that the firing was pretextual.
As to the date of the adverse employment decision, the court determined that the
jury reasonably could have found that the adverse employment decision, i.e., the
decision to terminate the plaintiff, occurred on December 1 [2004] and was
communicated to [the] plaintiff by his supervisor in the parking lot on December 2,
2004. The meeting in the presence of the union representative on December 3,
2004, confirmed or ratified the earlier decision communicated to the plaintiff on
December 2, 2004.
As to the plaintiff's qualification to perform the essential job functions, the court first
held that the plaintiff was required to establish that he could perform the essential
duties of his position on the date of the adverse employment decision under either
analytical framework and then found that he was qualified to perform the essential
job functions [of a package car driver] on December 1 and December 2, 2004. The
court further concluded, however, that as of the late afternoon of December 2,
2004, the plaintiff was placed under medical restrictions and medications that would
have prevented the plaintiff from performing the essential functions of the package
car driver position. Having made the requisite findings, the court reaffirmed its
denial of the defendant's motion for a directed verdict, stating that the plaintiff had
established his prima facie case for disability discrimination because the jury could
have reasonably found that the plaintiff was qualified to work on December 2, 2004,
when the defendant terminated the plaintiff based on his history of having a
disability. These appeals followed. Additional facts and procedural history will be
set forth as necessary.
*324 I
DEFENDANT'S APPEAL
The defendant claims that the court abused its discretion in denying its motion for a
directed verdict as to count six because the plaintiff failed to establish a prima facie
case of disability discrimination pursuant to 46a60. Specifically, the defendant
claims that the court erred in finding that (1) the adverse employment action
occurred on December 2, 2004, and (2) that the plaintiff was qualified to perform
the essential functions of his job on that date. We affirm the denial of the
defendant's motion for a directed verdict because we conclude that, under the
circumstances of this particular case, whether the plaintiff was qualified for his
position on the date of the adverse employment decision is not relevant to the
question of whether he was discriminated against by the defendant on the basis of
his preexisting disability.
[1] [2] [3] [4] [5] We begin by setting forth the appropriate legal
framework. The standards of review for the denial of a motion for a directed verdict
and denial of a motion to set aside a verdict are the same.... Ordinarily, [t]he proper
appellate standard of review when considering the action of a trial court granting or
denying a motion to set aside a verdict ... [is] the abuse of discretion standard....
[O]ur review of a trial court's refusal to direct a verdict ... takes place within
carefully defined parameters. We must consider the evidence, including reasonable
inferences which may be drawn therefrom, in the light most favorable to the parties
who were successful at trial ... giving particular weight to the concurrence of the
judgments of the judge and the jury, who saw the witnesses and heard the
testimony.... (Citations omitted; internal quotation marks omitted.) Tomick I, supra,
135 Conn.App. at 603, 43 A.3d 722. Directed verdicts are not favored.... As a
general rule, the decision to set aside a verdict entails the exercise*325 of a broad
legal discretion ... that, in the absence of clear abuse, we shall not disturb.
(Citations omitted; internal quotation marks omitted.) Rawls v. Progressive Northern
Ins. Co., 310 Conn. 768, 77576, 83 A.3d 576 (2014). We note further that, to the
extent that the claims raise questions of law, our review is plenary. See Bridgeport
Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 153, 30 A.3d 703 (applying
plenary review where questions of law were raised by defendant, claiming that
court improperly denied motion for directed verdict and to set aside verdict), cert.
granted on other grounds, 303 Conn. 904, 905, 31 A.3d 1179, 1180 (2011) (appeals
withdrawn January 26 and 27, 2012).
A
Applicable Analytical Framework
**7 [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] The legal
standards governing discrimination claims involving adverse employment actions
are well established. The framework this court employs in assessing disparate
treatment discrimination claims under Connecticut law was adapted from the United
States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. FN5 (Internal quotation
marks *326 omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453
(2015); Vollemans v. Wallingford, 103 Conn.App. 188, 928 A.2d 586 (2007) (where
employee claims disparate treatment under facially neutral employment policy,
courts employ McDonnell Douglas Corp.Burdine framework), aff'd, 289 Conn. 57,
956 A.2d 579 (2008). Furthermore, it is well settled that [w]e look to federal law for
guidance on interpreting state employment discrimination law, and the analysis is
the same under both. FN6 Feliciano v. Autozone, Inc., supra, at 73, 111 A.3d 453;
Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008); Craine v.
Trinity College, 259 Conn. 625, 637 n. 6, 791 A.2d 518 (2002); Levy v. Commission
on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996); Walker
v. Dept. of Children & Families, 146 Conn.App. 863, 875 n. 8, 80 A.3d 94 (2013),
cert. denied, 311 Conn. 917, 85 A.3d 653 (2014).
[16] [17] [18] [19] [20] [21] [22] In general, to establish a prima
facie case of discrimination [under the McDonnell Douglas Corp.Burdine *327
framework], the complainant must demonstrate that (1) he is in the protected class;
(2) he was qualified for the position; (3) he suffered an adverse employment action;
and (4) that the adverse action occurred under circumstances giving rise to an
inference of discrimination.... The level of proof required to establish a prima facie
case is minimal and need not reach the level required to support a jury verdict in
the plaintiff's favor. (Citation omitted; internal quotation marks omitted.) Vollemans
v. Wallingford, supra, 103 Conn.App. at 220, 928 A.2d 586. Under the McDonnell
DouglasBurdine [framework], the burden of persuasion remains with the plaintiff....
Once the plaintiff establishes a prima facie case, however, the burden of production
shifts to the defendant to rebut the presumption of discrimination by articulating
(not proving) some legitimate, nondiscriminatory reason for the plaintiff's
rejection.... Because the plaintiff's initial prima facie case does not require proof of
discriminatory intent, the McDonnell DouglasBurdine [framework] does not shift
the burden of persuasion to the defendant. Therefore, [t]he defendant need not
persuade the court that it was actually motivated by the proffered reasons.... It is
sufficient if the defendant's evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.... Once the defendant offers a legitimate,
nondiscriminatory reason, the plaintiff then has an opportunity to prove by a
preponderance of the evidence that the proffered reason is pretextual. (Citations
omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights &
Opportunities, supra, 236 Conn. at 107109, 671 A.2d 349.
B
Prima Facie Case of Discrimination
**8 In its brief, the defendant argues that [i]t is fundamental, under both state and
federal law, that a plaintiff *328 bringing a claim of disability [discrimination] must
be capable of performing his/her essential job functions as of the date of the
adverse employment action being challenged.... We disagree.
[23] It is beyond dispute that the prima facie case requirements under McDonnell
Douglas Corp.Burdine are meant to be flexible. Even in McDonnell Douglas Corp. v.
Green, supra, 411 U.S. 792, 93 S.Ct. 1817the case that first outlined the model
the United States Supreme Court explicitly stated that the facts necessarily will
vary in Title VII cases, and the specification above of the prima facie proof required
from respondent is not necessarily applicable in every respect to differing factual
situations. Id., at 802 n. 13, 93 S.Ct. 1817. Later, the Supreme Court further
clarified the adaptability of the test, stating that the McDonnell Douglas Corp.
decision did not purport to create an inflexible formulation of a prima facie
showing and that the importance of McDonnell Douglas lies, not in its specification
of the discrete elements of proof there required, but in its recognition of the general
principle that any Title VII plaintiff must carry the initial burden of offering evidence
adequate to create an inference that an employment decision was based on a
discriminatory criterion.... International Brotherhood of Teamsters v. United States,
431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981) ([ McDonnell Douglas Corp.] standard is not inflexible). Furthermore, in
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103
S.Ct. 1478, 75 L.Ed.2d 403 (1983), the Supreme Court plainly stated that the
factual inquiry in a Title VII case is [whether] the defendant intentionally
discriminated against the plaintiff.... In other words, is the employer ... treating
some people less favorably than others because of their race, color, religion, *329
sex, or national origin.... The prima facie case method established in McDonnell
Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is
merely a sensible, orderly way to evaluate the evidence in light of common
experience as it bears on the critical question of discrimination. (Citations omitted;
emphasis added; internal quotation marks omitted.) This principle has since been
adopted and affirmed by our Supreme Court. See Levy v. Commission on Human
Rights & Opportunities, supra, 236 Conn. at 108 n. 20, 671 A.2d 349 ( McDonnell
Douglas Corp. standard is not rigid; the prima facie elements should be modified
appropriately depending on the respective factual scenario); see also Miko v.
Commission on Human Rights & Opportunities, 220 Conn. 192, 204, 596 A.2d 396
(1991) (the requirements of proof [under McDonnell Douglas Corp.Burdine ] must
be tailored to the particular facts of each case); Chestnut Realty, Inc. v.
Commission on Human Rights & Opportunities, 201 Conn. 350, 361, 514 A.2d 749
(1986) (same).
**9 Nevertheless, to support its narrow interpretation of the McDonnell Douglas

Corp.Burdine model, the defendant cites to both federal and Connecticut cases in
which courts have required a showing of qualification as part of the prima facie
case. Close examination of these cases, however, reveals that the courts required a
showing of qualification precisely because it was germane to the issues involved.
For example, in Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 39899, 944
A.2d 925, one of the cases cited by the defendant, our Supreme Court required the
plaintiff to show that he was qualified to perform the essential duties of the job
because the employer's stated reason for termination was its inability to continue
employing the plaintiff with or without a reasonable accommodation. Simply stated,
the employer's position was that the plaintiff could not do his job or any other job
and, therefore, the employer *330 was not required to continue employing the
plaintiff. Thus, the plaintiff's qualifications were essential in determining whether
the employer could in fact employ the plaintiff with or without a reasonable
accommodation.
Similarly, in McBride v. BIC Consumer Products Mfg. Co., 583 F.3d 92, 9697 (2d
Cir.2009), another accommodation case cited by the defendant, the plaintiff was
required to make a sufficient showing that she was capable of performing the
essential functions of either her predisability position or some other position to
which she could have been reassigned because the employer's stated reason for
the termination of her employment was that she had refused to accept the
proposed accommodation of her disability and failed to propose any alternative
accommodation that would allow her to return to work in her previous position.
Once again, the plaintiff's qualifications were germane to the determination of
whether it was possible for the employer to accommodate and thus continue to
employ her.FN7
[24] If, however, the question of qualification is not relevant to the main question
of whether there was discrimination, our Supreme Court holds that no such showing
is necessary on the part of the plaintiff. See PerezDickson v. Bridgeport, 304 Conn.
483, 43 A.3d 69 (2012). In PerezDickson, the plaintiff, an AfricanAmerican school
*331 principal, was accused of sexually abusing a studentan allegation that was
later determined to be unsubstantiated. Pending the investigation, the district
superintendent placed the plaintiff on administrative leave. Thereafter, the plaintiff
brought an action, claiming that other employees were treated more favorably than
the plaintiff under similar circumstances. On review, our Supreme Court concluded
that the plaintiff's claim was subject to the McDonnell Douglas Corp.Burdine
framework analysis. The court explicitly stated, however, that even though in some
employment contexts, such as claims involving hiring, promoting or granting tenure,
the plaintiff must show that she was qualified to hold her employment position,
because, in this particular case, the question of whether the plaintiff was qualified
for her position is not relevant to the question of whether she was subjected to
harsher discipline than other employees on the basis of her race, we conclude that
it is not an element of her prima facie case. Id., at 514 n. 34, 43 A.3d 69.
**10 [25] Having reviewed the history and the purpose behind the McDonnell
Douglas Corp.Burdine framework, as well as the evolution of the case law
interpreting and applying it, we conclude that the defendant's view of the law
governing employment discrimination is contrary to that expressed in McDonnell
Douglas Corp.Burdine and its progeny. The McDonnell Douglas Corp.Burdine
framework does not create, as the defendant contends, a fundamental
requirement that a plaintiff bringing a claim of disability discrimination must be
capable of performing his/her essential job functions as of the date of the adverse
employment action being challenged.... (Emphasis added.) On the contrary, the
McDonnell Douglas Corp.Burdine framework mandates a flexible approach tailored
to the specific factual circumstances of each case.
[26] *332 With these principles in mind, we now turn to the present dispute. Our
examination of the factual circumstances of this particular case convinces us that
the question of whether the plaintiff was qualified to perform the essential duties of
his position at the time of the termination is not relevant for two reasons.
First, unlike in the cases relied on by the defendant in its brief, in this case the
plaintiff was already an employee of the defendant, and his qualifications for the
position held at the time were not being challenged; i.e., the defendant was not
asserting that it could no longer continue to employ the plaintiff, with or without
reasonable accommodations, on the basis of his unsatisfactory performance or lack
of qualifications as a result of his disability. On the contrary, the defendant
steadfastly maintained throughout this litigation that it has never asserted that it
discharged [the plaintiff] because of his alleged disability. Instead, the defendant
always maintained that it terminated the plaintiff's employment for a violation of its
workplace violence policy.
Second, it is axiomatic that requiring a plaintiff to establish his or her job

qualification serves the purpose of eliminating one of the most common legitimate
reasons on which an employer might rely to reject a job applicant: an absolute or
relative lack of qualifications.... (Emphasis added.) International Brotherhood of
Teamsters v. United States, supra, 431 U.S. at 358 n. 44, 97 S.Ct. 1843; see also
Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 25354, 101 S.Ct.
1089 ([t]he prima facie case serves an important function in the litigation: it
eliminates the most common nondiscriminatory reasons for the plaintiff's
rejection). In this case, however, the defendant could not have relied on the
plaintiff's alleged lack of qualifications because, at the time of the termination, the
defendant did not know whether the injury the plaintiff sustained on November 30,
2004, had rendered the plaintiff unqualified, and it is settled, of course, that *333
after-acquired evidence may not be used to prove an employer's motivation with
respect to a prospective or current employee because the employer did not have
those facts before it at the time that it made the contested decision. (Emphasis in
original.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 422 n. 19, 944 A.2d
925.
**11 Consequently, because the question of whether the plaintiff was qualified for
his position is not relevant to the question of whether he was discriminated against
by the defendant, we conclude that it is not an element of his prima facie case.FN8
To establish his prima facie case of discrimination in this case, the plaintiff had to
present evidence that: (1) he belonged to a protected class; (2) he was subject to
an adverse employment action; and (3) the adverse action took place under
circumstances permitting an inference of discrimination. The review of the record
confirms that he presented evidence to prove each remaining element, and, thus,
established his prima facie case of discrimination. Therefore, we conclude that the
trial court did not abuse its discretion in denying the defendant's motion for a
directed verdict.
II
PLAINTIFF'S CROSS APPEAL
The plaintiff claims on cross appeal that the court erred in concluding that 46a
104 does not authorize an award of punitive damages.FN9 Specifically, the plaintiff
argues that by using the phrase, including, but not *334 limited to, to modify the
phrase legal and equitable relief, the legislature undoubtedly intended to authorize
all forms of appropriate legal and equitable relief, including punitive damages,
which, he claims, are undeniably a form of legal relief.... We are not persuaded.
The following facts, as found by the court, and procedural history are relevant to our
discussion. On July 9, 2010, the jury determined that the plaintiff's physical
disability was a motivating factor in [the defendant's] decision to terminate his
employment. It further responded affirmatively to jury interrogatory [no.] 12, which
asked, Do you believe that [the defendant] willfully violated the plaintiff's rights
such that he should be entitled to an award of punitive damages? Thereafter, in an
appropriate blank on the verdict form, the jury awarded the plaintiff $500,000 in
punitive damages.
On July 16, 2010, the defendant filed a motion to set aside the award, and the
plaintiff filed a memorandum of law in opposition to the motion on August 9, 2010.
On October 28, 2010, the court issued a comprehensive written memorandum of
decision granting, inter alia, the defendant's motion to set aside the award of
punitive damages.
In its memorandum of decision, the court, having reviewed the legislative history,
the policy that the statute was designed to address, and the language of 46a104
as compared with other statutory provisions, concluded that punitive damages are
not authorized in this case to be imposed by either the jury or the court. FN10 Id.
*335 We first note that the question of whether 46a104 authorizes an award of
punitive damages previously has not been addressed directly by either this court or
our Supreme Court.FN11 We further note that there is a split of authority within our
Superior Courts on the issue. See Jill Tracy v. Smith Ins., Inc., Superior Court, judicial
district of New London, Docket No. CV146020529S, 2014 WL 6996442
(November 4, 2014) (finding that 46a104 allows awarding punitive damages and
listing Superior Court decisions in support and opposition).
**12 [27] [28] We begin by setting forth the applicable standard of review. The
trial court possesses inherent power to set aside a jury verdict which, in the court's
opinion, is against the law or the evidence.... Ultimately, [t]he decision to set aside
a verdict entails the exercise of a broad legal discretion ... that, in the absence of
clear abuse, we shall not disturb. (Citation omitted; internal quotation marks
omitted.) Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 709, 981 A.2d
497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). However, we
employ a plenary standard of review in deciding the question of statutory
interpretation. See Miller v. Egan, 265 Conn. 301, 327, 828 A.2d 549 (2003).
[29] [30] [31] When construing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the legislature.... In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case.... In seeking to determine that
meaning, *336 General Statutes 12z directs us first to consider the text of the
statute itself and its relationship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.... When a statute is not plain and
unambiguous, we also look for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation and common law principles
governing the same general subject matter.... (Footnote omitted; internal quotation
marks omitted.) Vincent v. New Haven, 285 Conn. 778, 78485, 941 A.2d 932
(2008). An axiomatic rule of statutory construction is that statutes should be
construed so that no part of a legislative enactment is to be treated as insignificant
and unnecessary, and there is a presumption of purpose behind every sentence,
clause or phrase in a legislative enactment. (Internal quotation marks omitted.)
Fishbein v. Kozlowski, 252 Conn. 38, 61, 743 A.2d 1110 (1999).
Section 46a104 provides: The court may grant a complainant in an action brought
in accordance with section 46a100 such legal and equitable relief which it deems
appropriate including, but not limited to, temporary or permanent injunctive relief,
attorney's fees and court costs. The amount of attorney's fees allowed shall not be
contingent upon the amount of damages requested by or awarded to the
complainant. On its face, the language of the statute does not expressly provide
for punitive damages; however, it does provide for an award of attorney's fees and
court costs.
In Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 839 A.2d 1250 (2004),
our Supreme Court considered whether explicit statutory language is required for an
award of multiple damages, which are *337 a form of punitive damages. See Harty
v. Cantor Fitzgerald & Co., 275 Conn. 72, 92 n. 10, 881 A.2d 139 (2005) (this court
has, on occasion, referred to a statutory multiple damage provision as providing
punitive damages even in the absence of such express designation by the
legislature). In Ames, the court was asked to determine whether General Statutes
1452 authorized an award of punitive damages.FN12 The plaintiff in the case
brought an action against the defendant, a used automobile dealer, for the unlawful
repossession of the plaintiff's automobile. The plaintiff sought to recover statutory,
actual, punitive and treble damages pursuant to General Statutes 52564 as well
as attorney's fees under the Connecticut Unfair Trade Practices Act (CUTPA), General
Statutes 42110a et seq.FN13 The defendant was defaulted for failure to appear,
and the court awarded the plaintiff damages that included treble damages and
attorney's fees. The defendant failed to satisfy the judgment and went out of
business. Consequently, after the Commissioner of Motor Vehicles invoked the
surety bond posted by the defendant pursuant to 1452, the plaintiff argued that
the surety bond should have been used to satisfy the judgment, including the
punitive damages and attorney's fees.
**13 On appeal, the court rejected the plaintiff's claim, stating that an award of
multiple damages ... is an extraordinary remedy that is available only when the
*338 legislature expressly provides for such damages by statute.... Accordingly, as
with attorney's fees, we require explicit statutory language to support an award of
punitive damages. Put simply, just as the legislature knows how to authorize an
award of attorney's fees when it wishes to do so ... it also knows how to authorize
an award of punitive damages. E.g., General Statutes 4d39 (c) (in action by
attorney general to prosecute violation under General Statutes 4d36, 4d37 or
4d38, court may award [inter alia] punitive damages'); General Statutes 168d
(b) (in action by employee alleging retaliation for disclosure of substantial
misfeasance, malfeasance or nonfeasance in management of, inter alia, public
service company, court may award punitive damages'); General Statutes 19a550
(e) (punitive damages may be assessed in civil action in which there is finding of
wilful or reckless deprivation of rights under patients' bill of rights implemented in
accordance with 19a550); General Statutes 31290a (b) (in action alleging
retaliation against employee for filing workers' compensation claim, court may ...
award punitive damages'). (Citations omitted.) Ames v. Commissioner of Motor
Vehicles, supra, 267 Conn. at 536, 839 A.2d 1250. Thus, the court concluded that,
because 1452 makes no mention of punitive damages, the plaintiff cannot
prevail on her claim that she may recover such damages under [the statute]. Id.
In his brief, the plaintiff argues that Ames is inapposite because the any loss
language under scrutiny in Ames is dramatically different from the language in
46a104, which provides for all forms of legal and equitable relief, including
punitive damages. In addition, the plaintiff argues that the holding of the case is
limited to the language of 1452 and, thus, the court's statements regarding
punitive damages are dicta and not binding on this court. We are not persuaded by
the plaintiff's arguments.
[32] [33] [34] Even if we agreed, arguendo, with the plaintiff that language of
46a104 is sufficiently broad to provide *339 for punitive damages, we
nevertheless conclude that such a reading of the statute would be contrary to our
established law. In Connecticut, common-law punitive damages, if awarded, are
restricted to cost of litigation less taxable costs of the action being tried.... (Internal
quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. at 93,
881 A.2d 139; Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 517 n. 38, 656
A.2d 1009 (1995) ([u]nder Connecticut common law, the term punitive damages'
refers to the expenses of bringing the legal action, including attorney's fees, less
taxable costs). Thus, if the plaintiff's interpretation of the statute were to prevail,
he would effectively be allowed to double his recovery of litigation costs because, of
course, 46a104 already explicitly authorizes an award of attorney's fees and
costs. Such a result would alter our settled common-law rule limiting punitive
damages to a single recovery of litigation expenses because their purpose is to
make a victim whole while avoiding the potential injustice resulting from unfettered
exercise of discretion by a jury.FN14 See *340 Label Systems Corp. v.
Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 2004) ([l]imiting punitive
damages to litigation expenses, including attorney's fees, fulfills the salutary
purpose of fully compensating a victim for the harm inflicted [internal quotation
marks omitted] ). Our law is clear, however; a court will not interpret a statute to
have the effect of altering prior statutory or common law unless the language of the
statute clearly expresses an intent to have such an effect. Elliot v. Sears, Roebuck
& Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); see also Ulbrich v. Groth, 310
Conn. 375, 448, 78 A.3d 76 (2013) (same). Our review of the language in 46a104
does not reveal a clear intent to provide multiple recovery of attorney's fees and
litigation costs, and we will not infer one.
**14 [35] We also disagree with the plaintiff that the court's rationale concerning
punitive damages in Ames is mere dictum. Dictum includes those discussions that
are merely passing commentary ... those that go beyond the facts at issue ... and
those that are unnecessary to the holding in the case. (Internal quotation marks
omitted.) Cruz v. Montanez, 294 Conn. 357, 37677, 984 A.2d 705 (2009). In Ames,
the court discussed and decided the issue of whether the plaintiff was entitled to
recover punitive damages against a surety bond furnished in accordance with 14
52. Ames v. Commissioner of Motor Vehicles, supra, 267 Conn. at 536, 839 A.2d
1250. Thus, the court's analysis of the issue was not only germane, but it was
essential to the resolution of the question of whether the language of the statute
authorized an award of punitive damages.FN15 Therefore, we are not persuaded
*341 by the plaintiff's argument that we should disregard the court's analysis in
Ames as dictum. To the contrary, we conclude that it is binding on this court.
Additionally, our review of title 46a of our General Statutes reveals that our
legislature explicitly has provided for punitive damages in at least three separate
instances therein. See General Statutes 46a98 (c) and (d) (explicitly providing
punitive damages in cases of discriminatory credit practices with a specified
maximum cap); General Statutes 46a98a (authorizing punitive damages in cases
of housing discrimination pursuant to General Statutes 46a89 [b] limited to
$50,000); General Statutes 46a89 (b) (allowing punitive damages in cases of
discriminatory public accommodations and housing practices pursuant to General
Statutes 46a64, 46a64 [c], and General Statutes 46a81d and 46a81e,
which prohibit public accommodations and housing discrimination based on sexual
orientation). These explicit provisions further persuade us that the legislature knows
how to provide for punitive damages when it deems it appropriate. Ames v.
Commissioner of Motor Vehicles, supra, 267 Conn. at 536, 839 A.2d 1250.
Because the language of 46a104 does not explicitly provide for punitive
damages, the plaintiff is not entitled to such relief under the statute. We thus
conclude that the court did not abuse its discretion in setting aside the award of
punitive damages.
The judgment is affirmed.
In this opinion the other judges concurred.
FN1. At all relevant times, Kevin Trudelle was the business manager of the
Norwich/Niantic center of United Parcel Service, Inc. We refer to United Parcel
Service, Inc., individually, as the defendant, to Trudelle by name and to both parties
collectively as the defendants.
FN2. General Statutes 46a60 (a) provides in relevant part: It shall be a

discriminatory practice in violation of this section: (1) For an employer, by the
employer or the employer's agent, except in the case of a bona fide occupational
qualification or need, to refuse to hire or employ or to bar or to discharge from
employment any individual or to discriminate against such individual in
compensation or in terms, conditions or privileges of employment because of the
individual's ... physical disability....
FN3. During the trial, the plaintiff maintained that his claim should have been
analyzed under the mixed motive framework articulated by the United States
Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989). The defendant, on the other hand, argued that the claim
was subject to the pretext framework analysis established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 25256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Tomick I, supra, 135
Conn.App. at 61011, 43 A.3d 722.
FN4. Because we remanded the claim brought pursuant to 46a60, we did not
review the plaintiff's challenge to the court's setting aside the award of punitive
damages. Tomick I, supra, 135 Conn.App. at 594 n. 4, 43 A.3d 722.
FN5. We further note that the pretext/ McDonnell Douglas Corp.Burdine framework
is not an exclusive means of proving employment discrimination in Connecticut.
Depending on the circumstances of the case, a plaintiff may be able to prove his
claim under a different framework. A mixed-motive case exists when an
employment decision is motivated by both legitimate and illegitimate reasons.... In
such instances, a plaintiff must demonstrate that the employer's decision was
motivated by one or more prohibited statutory factors. Whether through direct
evidence or circumstantial evidence, a plaintiff must submit enough evidence that,
if believed, could reasonably allow a [fact finder] to conclude that the adverse
employment consequences resulted because of an impermissible factor.... The
critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a
factor in the [employment] decision at the moment it was made.... Under this
model, the plaintiff's prima facie case requires that the plaintiff prove by a
preponderance of the evidence that he or she is within a protected class and that an
impermissible factor played a motivating or substantial role in the employment
decision....
Once the plaintiff has established his prima facie case, the burden of production
and persuasion shifts to the defendant. [T]he defendant may avoid a finding of
liability only by proving by a preponderance of the evidence that it would have
made the same decision even if it had not taken [the impermissible factor] into
account. (Citations omitted; footnotes omitted; internal quotation marks omitted.)
Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 105106, 671
A.2d 349 (1996).
Having reviewed the record before us, we conclude that, in this case, the court
properly applied the pretext/ McDonnell Douglas Corp.Burdine framework. The
plaintiff argued at trial that the defendant's stated reason for the termination of his
employmentworkplace violencewas not believable, that the defendant was
looking for a gotcha moment, a reason, and every possible excuse in the book
to terminate his employment.
FN6. We note, however, that while often a source of great assistance and
persuasive force ... it is axiomatic that decisions of the United States Supreme Court
[or lower federal courts] are not binding on Connecticut courts tasked with
interpreting our General Statutes. Rather, Connecticut is the final arbiter of its own
laws. (Citation omitted; internal quotation marks omitted.) Vollemans v.
Wallingford, supra, 103 Conn.App. at 199200, 928 A.2d 586.
FN7. Having reviewed the remainder of the cases relied on by the defendant, we
conclude that they offer no support for the defendant's position because the issue
of qualification was relevant to the resolution of these cases. See Timmons v.
General Motors Corp., 469 F.3d 1122 (7th Cir.2006); Chasse v. Computer Sciences
Corp., 453 F.Supp.2d 503 (D.Conn.2006); Henderson v. United Parcel Service, United
States District Court, Docket No. 3:03CV2135 (CFD), 2007 WL 906151 (D.Conn.
March 23, 2007); Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 643 A.2d 898,
cert. denied, 231 Conn. 908, 648 A.2d 151 (1994); Morris v. TriTown Teachers
Federal Credit Union, Superior Court, judicial district of Fairfield, Docket No. CV98
0354839S, 2000 WL 1058882 (July 13, 2000).
FN8. Accordingly, we need not address whether the trial court correctly determined
the date of the adverse employment decision and that the plaintiff was qualified to
perform the essential functions of his job on that date.
FN9. General Statutes 46a104 provides: The court may grant a complainant in
an action brought in accordance with section 46a100 such legal and equitable
relief which it deems appropriate including, but not limited to, temporary or
permanent injunctive relief, attorney's fees and court costs. The amount of
attorney's fees allowed shall not be contingent upon the amount of damages
requested by or awarded to the complainant.
FN10. The plaintiff also argues that punitive damages under 46a104 must be
awarded by the jury and not the court. Because we conclude that 46a104 does not
authorize an award of punitive damages, we need not address the plaintiff's
argument. But see Jackson v. Water Pollution Control Authority, 278 Conn. 692, 710
n. 16, 900 A.2d 498 (2006) ( 46a104 appears to leave the issue of remedy to the
trial court's sound discretion).
FN11. See Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 70910, 981
A.2d 497 (2009) (affirming trial court's award of attorney's fees as form of punitive
damages because 46a104 explicitly authorizes award of attorney's fees), cert.
denied, 294 Conn. 923, 985 A.2d 1062 (2010); see also Ware v. State, 118
Conn.App. 65, 87 n. 14, 983 A.2d 853 (2009) (declining to address whether 46a
104 authorizes punitive damages against private party).
FN12. General Statutes 1452(b)(4) requires, inter alia, licensed automobile

dealers and repairers to post a surety bond that could be used as indemnity for any
loss sustained by any customer by reason of any acts of the licensee constituting
grounds for suspension or revocation of the license or such licensee going out of
business.... (Emphasis added.)
FN13. General Statutes 52564 provides, inter alia, that [a]ny person who steals
any property of another, or knowingly receives and conceals stolen property, shall
pay the owner treble his damages.
General Statutes 42110g (d) provides, inter alia, that a party prevailing under a
CUTPA claim may be awarded costs and reasonable attorneys' fees....
FN14. The plaintiff further argues that, because punitive damages in this case are
authorized by the statute, they are not subject to the common-law limitations. To
support this proposition, the plaintiff relies on our Supreme Court holdings in Ulbrich
v. Groth, 310 Conn. 375, 78 A.3d 76 (2013); MedValUSA Health Programs, Inc. v.
MemberWorks, Inc., 273 Conn. 634, 872 A.2d 423, cert. denied sub nom. Vertrue,
Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d
363 (2005); and Freeman v. Alamo Management Co., 221 Conn. 674, 607 A.2d 370
(1992). Having reviewed these decisions, we conclude that they are inapposite to
this case. The statutes at issue in Ulbrich, MedValUSA Health Programs, Inc., and
Freeman explicitly allow an award of punitive damages. As such, the holdings in
these cases squarely adhered to our long-standing principle that we recognize only
those alterations of the common law that are clearly expressed in the language of
the statute.... Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288
(1993); see also Hylton v. Gunter, 313 Conn. 472, 486 n. 14, 97 A.3d 970 (2014)
( [p]unitive damages under these statutes, particularly under statutes that provide
for awards of fees and costs in addition to punitive damages like CUTPA ... are
distinct from common-law punitive damages because they are not intended merely
to compensate the plaintiff for the harm caused by the defendant but, rather, serve
a broader ... purpose [citation omitted; internal quotation marks omitted] ). Section
46a104 does not contain such clear expression and, therefore, we are not
persuaded by the plaintiff's argument.
FN15. In his brief, the plaintiff further argues that the holding in Ames is inapposite
because the objectives of 1452 and [the Connecticut Fair Employment Practices
Act, General Statutes 46a51 et seq., of which 46a104 is a part] could not be
more different. While 1452 was enacted to allow consumers to obtain
reimbursement for some of the money owed to them by automobile dealers who
have gone out of business, [the fair employment practices act] was enacted to
eradicate workplace discrimination and, thus, it must be interpreted with that
remedial purpose in mind. (Emphasis in original.) We conclude, however, that our
interpretation of 46a104 as not allowing for punitive damages does not thwart
the remedial purpose of the fair employment practices act because the statute
already provides for attorney's fees and costs that, when viewed in the light of the
increasing costs of litigation, also [serve] to punish and deter wrongful conduct.
Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).
Conn.App.,2015.
Tomick v. United Parcel Service, Inc.
--- A.3d ----, 157 Conn.App. 312, 2015 WL 2190773 (Conn.App.), 31 A.D. Cases 1065
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Judges | Attorneys
Judges
Beach, Hon. Robert E. Jr.
State of Connecticut Appellate Court
Hartford, Connecticut 06106
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report
| Profiler
Cosgrove, Hon. Emmet L.

State of Connecticut Superior Court, New London Judicial District
New London, Connecticut 06320
Litigation History Report | Judicial Reversal Report | Profiler
DiPentima, Hon. Alexandra Davis

| Profiler
Prescott, Hon. Eliot D.

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Attorneys
Attorneys for Amicus Curiae
Mercier, Marc P.
Manchester, Connecticut 06040
Litigation History Report | Profiler
Attorneys for Defendant

Corvo, Jennifer A.
Giordano, Stella Szantova

Harrington, Michael Colgan

Attorneys for Plaintiff

Colonese, Michael D.
Norwich, Connecticut 06360
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United States Bankruptcy Court,
E.D. Texas, Sherman Division.
In re : David Wayne McCracken xxxxxxxxx Debtor
Dianna Tackett Plaintiff
v.
David Wayne McCracken Defendant
Case No. 0344802

Adversary No. 144100
Signed March 24, 2015
Filed March 25, 2015
Joyce W. Lindauer, Dallas, TX, for Debtor.
MEMORANDUM OF DECISION FN1

FN1. This Memorandum of Decision is not designated for publication and shall not be considered
as precedent, except under the respective doctrines of claim preclusion, issue preclusion, the law
of the case or other evidentiary doctrines applicable to the specific parties in this proceeding.
THE HONORABLE BILL PARKER UNITED STATES BANKRUPTCY JUDGE
*1 ON THIS DATE the Court considered the Motion for Summary Judgment (the Motion)
filed by the Plaintiff, Dianna Tackett (the Plaintiff), in the above-referenced adversary
proceeding, the response in opposition filed by the Defendant, David Wayne McCracken (the
Defendant or Debtor), and the Plaintiff's Reply. The Plaintiff's Motion seeks a summary
judgment on the determination of whether: (1) a judgment debt owed to her by the Debtor is
excepted from discharge pursuant to 11 U.S.C. 523(a)(5); and (2) she is entitled to an award
of attorney's fees and expenses incurred in bringing this adversary proceeding. Upon due
consideration of the pleadings, the proper summary judgment evidence submitted by the parties,
and the relevant legal authorities, the Court concludes that the Plaintiff has demonstrated that
there is no genuine issue as to any material fact and that she is entitled to judgment as a matter
of law that the debt owed to her by the DebtorDefendant, arising from the order issued by the
380th Judicial District Court in and for Collin County, Texas, is nondischargeable under 523(a)
(5) of the Bankruptcy Code. The Plaintiff's request for an award of attorney's fees incurred in this
adversary proceeding shall be denied. Thus, the Plaintiff's Motion for Summary Judgment shall
be granted in part and denied in part. FN2
FN2. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. 1334.
This Court has authority to enter a final judgment in this adversary proceeding since it statutorily
constitutes a core proceeding as contemplated by 28 U.S.C. 157(b)(2)(I) and meets all
constitutional standards for the proper exercise of full judicial power by this Court.
Factual and Procedural Background FN3

FN3. The facts presented are those which stand uncontested by and among the parties and are
presented only as a general factual background to the legal claims asserted in the case. This
section is not intended to resolve any disputed or contested facts.
The Plaintiff, Dianna Tackett (formerly Dianna McCracken), and the DebtorDefendant, David
Wayne McCracken, were divorced by entry of an Agreed Final Decree of Divorce on November
29, 2000 (the Divorce Decree), issued by the 380th Judicial District Court in and for Collin
County, Texas (the Family Court) under cause no. 380 5085800 (the Family Law Case). FN4
During their marriage, the Plaintiff and Defendant had one child. The Divorce Decree detailed the
division of the marital property and outlined the rights and duties of each parent as a joint
managing conservator of the one child of the marriage. Among those provisions, the Divorce
Decree ordered that the Plaintiff shall have the exclusive right to establish the child's primary
residence within Collin County or any contiguous counties, FN5 and the Defendant is obligated to
pay and shall pay ... child support of $1,200 per month FN6 to the Plaintiff.
FN4. Ex. A to Plaintiff's Motion.
FN5. Id. at page 5.
FN6. Id. at page 15.
*2 On October 15, 2003, Defendant filed a voluntary petition under Chapter 13 of the
Bankruptcy Code. His Chapter 13 plan was confirmed in August 2004 and the Debtor operated
under the terms of that confirmed plan until July 11, 2006 when the Debtor voluntarily converted
his case to a case under Chapter 7. The Court granted a discharge under Chapter 7 to the
Defendant on October 5, 2006.
During the Chapter 13 phase of his bankruptcy case, on July 22, 2005, the DebtorDefendant
sued the Plaintiff in the Family Court to modify the parent-child relationship previously
established in the Divorce Decree, seeking to be appointed as the sole managing conservator of
the parties' minor son.FN7 The Family Court heard this case in November 2005 and subsequently
issued its Order In Suit to Modify ParentChild Relationship (the 2006 SAPCR Order) on
January 6, 2006.FN8 In denying all relief sought by the DebtorDefendant, the Family Court also
issued the following affirmative relief in the 2006 SAPCR Order:
Attorney's Fees
IT IS ORDERED that good cause exists to award DIANNA MCCRACKEN a judgment against DAVID
MCCRACKEN in the amount of $24,000.00 for attorney's fees incurred by DIANNA MCCRACKEN
in this matter, with interest at six percent (6%) per year compounded annually from the date this
Order is signed until paid in full. IT IS FURTHER ORDERED that the judgment, for which it is
ORDERED that execution of all writs and processes necessary to be issued is awarded to DIANNA
MCCRACKEN, Respondent, against DAVID MCCRACKEN, Petitioner. IT IS FURTHER ORDERED that
DAVID MCCRACKEN, Petitioner, is ORDERED to pay this judgment directly to DIANNA
MCCRACKEN ... IT IS FURTHER ORDERED that DIANNA MCCRACKEN may enforce this judgment
for attorney's fees by any means available for enforcement of a judgment for debt.
Costs
IT IS ORDERED that good cause exists to award DIANNA MCCRACKEN a judgment against DAVID
MCCRACKEN in the amount of $830.00 for legal costs incurred by DIANNA MCCRACKEN in this
matter, with interest at six percent (6%) per year compounded annually from the date this Order
is signed until paid in full. IT IS FURTHER ORDERED that the judgment, for which it is ORDERED
that execution of all writs and processes necessary to be issued is awarded to DIANNA
MCCRACKEN, Respondent, against DAVID MCCRACKEN, Petitioner. IT IS FURTHER ORDERED that
DAVID MCCRACKEN, Petitioner, is ORDERED to pay this judgment directly to DIANNA
MCCRACKEN ... IT IS FURTHER ORDERED that DIANNA MCCRACKEN may enforce this judgment
for attorney's fees by any means available for enforcement of a judgment for debt. FN9
It is undisputed that the 2006 SAPCR Order became a final order in the Family Law Case.
FN7. Ex. B to Plaintiff's Motion.
FN8. A court order that provides for the conservatorship, support, or possession of and access to
a child may be modified by filing a suit for such modification in the court with continuing,
exclusive jurisdiction. See 6 TEX. FAM. CODE ANN. 156.001, et seq. (Vernon 2014).
FN9. Plaintiff's Ex. C, attached to Plaintiff's Motion.
Almost nine years later, the Plaintiff initiated this adversary proceeding. FN10 In her Motion for
Summary Judgment, the Plaintiff asserts that there are no genuine issues of material fact and
that, under such uncontested facts, she is entitled to a determination that (1) the debt owed to
her by the DebtorDefendant arising from the entry of the 2006 SAPCR Order is
nondischargeable under 523(a)(5), and (2) the attorney's fees and expenses that she has
incurred in bringing the current complaint should be awarded and included in the
nondischargeability determination. The DebtorDefendant filed a response in opposition to the
motion in which he tacitly admits that there are no genuine issues of material fact but, on the
basis of such admitted material facts,FN11 he asserts that the debt arising from the 2006 SAPCR
Order is dischargeable because it is not in the nature of support and that none of the asserted
fees incurred by the Plaintiff in this adversary proceeding can be properly awarded. FN12 Upon the
submission of a reply by the Plaintiff to the Defendant's response, FN13 the Court took the matter
under advisement.
FN10. There is no deadline by which a creditor must seek a determination that the debt owed to
her is excepted from discharge by 523(a)(5). In re Walls, 496 B.R. 818, 826
(Bankr.N.D.Miss.2013); Eric D. Fein, P.C. & Assoc. v. Young (In re Young), 425 B.R. 811, 817
(Bankr.E.D.Tex.2010); Hutchison v. Birmingham (In re Hutchison), 270 B.R. 429, 435
(Bankr.E.D.Mich.2001).
FN11. Thus, in the absence of any summary judgment evidence from the Defendant that
controverts any of the facts established under the summary judgment evidence tendered by the
Plaintiff, those material facts are established pursuant to Local District Court Rule CV56, which
is incorporated into all bankruptcy adversary proceedings in this Court by LBR 7056(d).
Subsection (c) of that rule provides as follows:
(c) In resolving the motion for summary judgment, the court will assume that the facts as
claimed and supported by admissible evidence by the moving party are admitted to exist without
controversy, except to the extent that such facts are controverted in the response filed in
opposition to the motion, as supported by proper summary judgment evidence. The court will not
scour the record in an attempt to determine whether the record contains an undesignated
genuine issue of material fact for trial before entering summary judgment.
FN12. See dkt # 9.
FN13. See dkt # 10.
Discussion
Summary Judgment Standard
*3 The Plaintiff brings her Motion for Summary Judgment in this adversary proceeding
pursuant to Federal Rule of Bankruptcy Procedure 7056. That rule incorporates Federal Rule of
Civil Procedure 56, which provides that summary judgment shall be rendered if the movant
show[s] that there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56).
Any party seeking summary judgment always bears the initial responsibility of informing
the ... court of the basis for its motion. Id. at 323. As a movant, a party asserting that a fact
cannot be genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the ... presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.
FED. R. CIV. P. 56(c). An issue is genuine if it is real and substantial, as opposed to merely
formal, pretended or a sham. Bazan ex. rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th
Cir.2001) (emphasis in original). A fact is material only if its resolution would affect the outcome
of the action. Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir.2009).
The manner in which the necessary summary judgment showing can be made depends upon
which party will bear the burden of persuasion at trial. As the plaintiff seeking a determination
regarding the dischargeability of the 2006 SAPCR Order debts and her entitlement to attorney's
fees and expenses in this adversary proceeding, the Plaintiff bears the ultimate burden of proof
at trial regarding her claims. As the party carrying the burden of persuasion at trial, the Plaintiff
must support [her] motion with credible evidenceusing any of the materials specified in Rule
56(c)that would entitle [her] to a directed verdict if not controverted at trial. Celotex, 477 U.S.
at 331 (Brennan, J., dissenting); Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 126465
(5th Cir.1991).
If the summary judgment motion is supported by a prima facie showing that the moving party
is entitled to judgment as a matter of law, a party opposing that motion may not rest upon the
mere allegations or denials in its pleadings, but rather must demonstrate in specific responsive
pleadings the existence of specific facts constituting a genuine issue of material fact for which a
trial is necessary. Celotex, 477 U.S. at 324. In so demonstrating, the non-movant must show
more than a mere disagreement between the parties, Calpetco 1981 v. Marshall Exploration,
Inc., 989 F.2d 1408, 1413 (5th Cir.1993), or that there is merely some metaphysical doubt as to
the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Neither are unsubstantiated, conclusory assertions in the response sufficient to raise a genuine
issue of material fact. Jacobs v. City of Port Neches, 7 F.Supp.2d 829, 833 (E.D.Tex.1998) (citing
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998)). However, the issue of
material fact which must be present to entitle a party to proceed to trial is not required to be
resolved conclusively in favor of the party asserting its existence; rather, all that is required is
that sufficient evidence supporting the claimed factual dispute be shown to require a jury or
judge to resolve the parties' differing versions of the truth at trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 24849 (1986).
*4 The record presented is reviewed in the light most favorable to the non-moving party.
Matsushita, 475 U.S. at 587. Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial. Id. at 587. Further,
[o]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248.
Applicable Law
The threshold issue regarding the dischargeability of a debt is whether the claim is even
subject to a discharge order issued in a Chapter 7 proceeding. The debt at issue arose in the
Chapter 13 phase of the Debtor's bankruptcy case, but prior to the voluntary conversion of his
case to Chapter 7. As a result, though the debt clearly arose in the post-petition period, it is
nevertheless subject to the Chapter 7 discharge granted to the Debtor due to the unique effect
imposed by 348(d) of the Bankruptcy Code.FN14 Where conduct occurs after the petition date,
but before conversion to chapter 7, courts have recognized that the claim is still subject to a
dischargeability determination because, pursuant to section 348(d), a claim arising out of post-
petition, pre-conversion conduct is treated as if it arose pre-petition. Ruma v. Kehaias (In re
Kehaias), 2013 WL 6899397, at *7 (Bankr.D.N.H., Dec. 31, 2013). Accordingly, [t]he effect of
section 348(d) is to include post-petition, pre-conversion debts within the category of
dischargeable debts. Id. at *8. Thus, the Plaintiff is properly recognized as a creditor FN15 of the
bankruptcy estate and may properly bring a complaint before this Court for a determination of
dischargeability of the indebtedness owed to her by the Debtor.FN16
FN14. 11 U.S.C. 348(d) provides that:

(d) A claim against the estate or the debtor that arises after the order for relief but before
conversion in a case that is converted under section 1112, 1208, or 1307 of this title, other than
a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim
had arisen immediately before the date of the filing of the petition.
FN15. 11 U.S.C. 101(10), in relevant part, provides that:

The term creditor means
(B) [an] entity that has a claim against the estate of a kind specified in section 348(d) ... of this
title.
FN16. See supra note 10.
As a debt arising in a family law context, the Plaintiff brings her dischargeability complaint
under 11 U.S.C. 523(a)(5); however, the current version of that statute is inapplicable to the
current conflict. Though the passage of the Bankruptcy Abuse Prevention and Consumer
Protection Act (BAPCPA) in 2005 significantly broadened, the scope of debts, particularly in the
family law area, that are potentially excepted from discharge in a bankruptcy case, its adoption
was not retroactive. Thus, this proceeding is governed by pre-BAPCPA law since the Debtor
Defendant filed his bankruptcy case in 2003prior to the October 17, 2005 effective date of
BAPCPA.FN17 Faulkner v. Kornman (In re The Heritage Organization, LLC), 2012 WL 478178, at
*12 (Bankr.N.D.Tex., Feb. 14, 2012) [BAPCPA provision inapplicable due to filing date of
bankruptcy case, even though adversary proceeding initiated after such effective date]; see also,
KekauohaAlisa v. Ameriquest Mtg. Co., (In re KekauohaAlisa), 2013 WL 827738, at *1
(Bankr.D.Haw., Mar. 6, 2013); and In re Skeen, 359 B.R. 593, 598 (Bankr.W.D.Va.2006).
FN17. See BAPCPA, Pub.L. No. 1098, 1501, 119 Stat. 23, 216 (2005).
*5 As a result, 523(a)(5) of the Bankruptcy Code, as it existed in 2003, prior to the

adoption of BAPCPA, governs the determination of this case. It provided an exception to
discharge for any debt:
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of
such spouse or child, in connection with a separation agreement, divorce decree or other order of
a court of record, determination made in accordance with state or territorial law by a
governmental unit, or property settlement agreement, but not to the extent that
...
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such
liability is actually in the nature of alimony, maintenance, or support.
11 U.S.C.A. 523(a)(5) (West 2002).
As the Fifth Circuit noted in the pre-BAPCPA era,FN18 the question of whether a debt arising as
a result of a family law agreement is truly in the nature of support is a matter of federal
bankruptcy law, not state law. Biggs v. Biggs (In re Biggs), 907 F.2d 503, 504 (5th Cir.1990).
Because parties and state courts do not necessarily label obligations with federal bankruptcy
standards in mind, [b]ankruptcy courts must therefore look beyond the labels which state
courtsand even the parties themselvesgive obligations which debtors seek to have
discharged. Dennis v. Dennis (In re Dennis ), 25 F.3d 274, 277 (5th Cir.1994), cert. denied, 513
U.S. 1081 (1995). Thus, it is critical to place substance over form to determine the true nature
and purpose of the award, regardless of the label used. Joseph v. J. Huey O'Toole P.C. (In re
Joseph), 16 F.3d 86, 88 (5th Cir.1994).
FN18. The analysis set forth in this pre-BAPCPA line of cases remains viable today to interpret
the scope of a domestic support obligation under 11 U.S.C. 101(14A). See, e.g., In re
Beacham, 520 B.R. 561, 564 (Bankr.S.D.Tex.2014); Hutton v. Ferguson (In re Hutton), 463 B.R.
819, 828 (Bankr.W.D.Tex.2011).
The attorney's fees and costs awarded to the Plaintiff in the 2006 SAPCR Order arose in
connection with a custody modification action. See 6 TEX. FAM. CODE ANN. 156.001, et seq.
(Vernon 2014). As Judge Marvin Isgur recently observed,
The Fifth Circuit has repeatedly held that a court ordered obligation to pay attorneys' fees
charged by an attorney that represents a child's parent in a child custody dispute is
nondischargeable in a debtor's bankruptcy proceeding. Rogers v. Morin (In re Rogers), 189
Fed.Appx. 299, 302 (5th Cir.2006)(citing Dvorak v. Carlson (In re Dvorak), 986 F.2d 940, 941
(5th Cir.1993) and Hudson v. Raggio & Raggio, Inc. (In re Hudson), 107 F.3d 355, 357 (5th
Cir.1997)).
Beachum, 520 B.R. at 56465. This long line of authority in this circuit recognizes that
[a]ttorney fees awarded in connection with a child custody dispute are for the benefit of the
parties' children, as the purpose of such a proceeding is to determine who can provide the best
home and environment for the children at issue. Sonntag v. Prax (In re Sonntag), 115
Fed.Appx. 680, 682 (5th Cir.2004).
The Defendant's contention that the 2006 SAPCR Order is too ambiguous to determine
whether the awarded fees and costs should be nondischargeable under the foregoing authorities
is specious. The legal proceeding that precipitated the award of fees and costs was the
Defendant's Petition to Modify the Parent Child Relationship FN19 That petition sought to dissolve
the existing joint managing conservator relationship established by the Divorce Decree and to
establish the Father [Defendant] as Sole Managing Conservator. FN20 After a two-day trial, the
Family Court issued the 2006 SAPCR Order that rejected the Defendant's proposed change in the
conservatorship of the child, and the contentions upon which it was based, and further granted
affirmative relief to the Plaintiff and against the Defendant ... in the amount of $24,000.00 for
attorney's fees incurred and $830.00 for legal costs incurred by DIANNA MCCRACKEN. FN21
Notwithstanding the lack of any specific reference to the best interests of the child in the 2006
SAPCR Order, its intent and effect are clear. The child's best interests were served by the
continuation of the existing parental conservatorship. Accordingly, the entry of summary
judgment that the debt owed by the Defendant to the Plaintiff under the 2006 SAPCR Order is
nondischargeable under the applicable version of 11 U.S.C. 523(a)(5) is appropriate.
FN19. Ex. B to Plaintiff's Motion. The language of the Defendant's Petition states: The retention
of the Mother as Joint Managing Conservator would be injurious to the welfare of the child. The
appointment of the Father as Sole Managing Conservator would be a positive improvement for
the child. Id., at page 2.
FN20. Id.
FN21. Ex. C to Plaintiff's Motion.
Attorney's Fees and Expenses in Bringing this Adversary Proceeding

*6 The Plaintiff also seeks summary judgment for recovery of reasonable attorney's fees and
expenses incurred in the prosecution of this adversary proceeding, FN22 plus contingent awards for
various levels of appellate review.FN23 This request is supported by the affidavit of Subvet D.
West.FN24 Nevertheless, the Plaintiff has failed to provide summary judgment evidence or relevant
case law supporting her entitlement to an award of attorney's fees for legal services rendered or
expenses incurred in this adversary proceeding.
FN22. Ex. 2 to Plaintiff's Reply.
FN23. Ex. A to Plaintiff's Reply.

FN24. Id.
In federal court, the American Rule prohibits awards of counsel fees to a prevailing party
absent statutory authority, contractual authorization, or special circumstances. Asarco, L.L.C. v.
Baker Botts, L.L.P. (In re ASARCO, L.L.C.), 751 F.3d 291, 301 (5th Cir.) cert. granted sub nom.
Baker Botts, L.L.P. v. ASARCO, L.L.C., 135 S.Ct. 44, 189 L.Ed.2d 897 (2014) (internal quotations
omitted). This is applicable to bankruptcy litigation. Cadle Co. v. Martinez (In re Martinez), 416
F.3d 1286, 1287 (11th Cir.2005); Gugino v. Clark's Crystal Springs Ranch, LLC (In re Clark), 525
B.R. 107, 130 (Bankr.D.Idaho 2014).[I]n adherence to that so-called American Rule, attorneys'
fees are not taxable as costs or recoverable as damages in an adversary proceeding unless such
fees are authorized by statute or through an enforceable contract between the parties. First
United Bank & Trust Co. v. Buescher (In re Buescher), 491 B.R. 419, 439 (Bankr.E.D.Tex.2013).
In this adversary proceeding, there is no contract between the parties that entitles the Plaintiff to
a recovery of attorney's fees.FN25 Nor does the Plaintiff cite to any proper statutory authority that
would authorize her to obtain a recovery of attorney's fees and expenses for the services
pertaining to the presentation of an adversary complaint seeking a determination of
dischargeability. While statutory attorney's fees under state law are proper to award in
dischargeability litigation when that litigation also seeks the establishment of liability of a debtor-
defendant under that state statutory scheme, Cohen v. de la Cruz, 523 U.S. 213, 221 (1998);
Synergeering Group, LLC v. Jonatzke (In re Jonatzke), 478 B.R. 846, 86970
(Bankr.E.D.Mich.2012),FN26 Cohen did not create a common law basis for awarding attorney fees
or otherwise overrule or alter how the American Rule is applied by federal courts. Dancor
Constr. Co. v. Haskell (In re Haskell), 475 B.R. 911, 923 (Bankr.C.D.Ill.2012) ( citing Clark &
Gregory, Inc. v. Hanson (In re Hanson), 225 B.R. 366 (Bankr.W.D.Mich.1998) ); Headrick v.
Atchison ( In re Atchison), 255 B.R. 790 (Bankr.M.D.Fla.2000)[[I]t is clear that Cohen does not
itself create an independent right to attorney's fees for the benefit of a party who prevails in a
Section 523 dischargeability proceeding.]. Thus, while state statutory law allowing for an award
of attorney's fees may have been previously invoked in a pre-petition action in state court that
established the liability of a debtor-defendant for a debt,FN27 there is simply no statutory vehicle
by which attorney's fees subsequently incurred by such a creditor in a bankruptcy adversary
proceeding to render that debt nondischargeable can be assessed against a debtor-defendant.
Renfrow v. Draper (In re Draper), 232 F.3d 688, 696 (9th Cir.2000) ; Jonatzke, 478 B.R. at 869 ;
Adamovic v. Lazarevic (In re Lazarevic), 2013 WL 3934010 at *35 (Bankr.E.D.Tenn., July 29,
2013) . Without a contractual provision or applicable statutory authority,FN28 the American Rule
applies. Accordingly, the Plaintiff's Motion for Summary Judgment regarding an award of
additional attorney's fees shall be denied. However, the Plaintiff's recovery of the $260.00 filing
fee for reopening the main bankruptcy case FN29 and the cost of $350.00 required for the filing of
the adversary complaint is proper under 28 U.S.C. 1920 .
FN25. Contrary to the Plaintiff's contention, the indemnification provision contained in the
Divorce Decree cannot serve as a substitute therefor. That provision declares that the Defendant
shall indemnify and hold the wife and her property harmless from ... [a]ny and all debts,
charges, liabilities, and other obligations incurred solely by the husband from and after January
29, 2000. See Ex. A to Plaintiff's Motion at pp. 2627. That indemnity clause applies to
liabilities owing to third partiesnot arising independently against each otherand is properly
characterized as an agreement to indemnify against liability, rather than damages, which cannot
be considered as mature until the indemnitee's liability becomes fixed and certain. See Ingersoll
Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 208 (Tex.1999). Further, the obligation cannot
be fairly characterized as a debt incurred solely by the [Defendant] since the liability for the
attorney's fees was initially incurred by the Plaintiff.
FN26. The Jonatzke court observed: Thus, if a bankruptcy court liquidates a claim and also
determines its dischargeability under the Bankruptcy Code, the liquidated claim may include an
attorney's fee component only if the contract or a statute provides for such an award. Jonatzke,
478 B.R. at 86970 (citing Headrick v. Atchison (In re Atchison), 255 B.R. 790, 792
(Bankr.M.D.Fla.2000)).
FN27. An example is the utilization of 106.002 of the Texas Family Code in this case which
provides for a recovery of attorney's fees necessarily incurred by a party in a suit affecting the
parent-child relationship.
FN28. The only statutory authorization under Title 11 for an award of attorneys' fees in a
dischargeability proceeding is found in 11 U.S.C. 523(d), which gives a prevailing debtor a
right to attorneys' fees in certain specified cases.
FN29. Though it is doubtful that the reopening of the main bankruptcy case was actually required
in this instance, see, e.g., Menk v. LaPaglia (In re Menk), 241 B.R. 896, 91011 (B.A.P. 9th
Cir.1999) [reopening of main case was permissible and innocuous, though not a jurisdictional
prerequisite]; Goldstein v. Diamond (In re Diamond), 509 B.R. 219, 222 (B.A.P. 8th Cir.2014),
the Plaintiff sought the reopening of the main case, the DebtorDefendant opposed it, and the
Plaintiff prevailed at a contested hearing before Chief Judge Rhoades. Accordingly, the
reimbursement of the required reopening fee, along with reimbursement of the applicable fee for
filing the adversary proceeding, is appropriate.
Conclusion
*7 Accordingly, upon due consideration of the pleadings, the proper summary judgment
evidence submitted by the parties, the material facts admitted to exist under Fed. R. Bankr.P. 56
and E.D. TEX. LOCAL R. CV56(c), the relevant legal authorities and for the reasons set forth
herein, the Court concludes that there is no genuine issue as to any material fact and that the
Plaintiff, Dianna Tackett, formerly Dianna McCracken, is entitled to summary judgment that the
debt owed to her by the DebtorDefendant, David Wayne McCracken, under the 2006 SAPCR
Order in the aggregate amount of $24,830.00, plus accumulated interest, should be declared
nondischargeable pursuant to 11 U.S.C. 523(a)(5). Aggregate court costs in the amount of
$610.00 shall also be awarded to the Plaintiff and assessed against the DebtorDefendant.
However, the Court shall deny the Plaintiff's request for the recovery of attorney's fees incurred
in prosecuting the present adversary proceeding. An appropriate order and a judgment will be
entered which are consistent with this opinion.
Bkrtcy.E.D.Tex., 2015
In re McCracken
Slip Copy, 2015 WL 1402888 (Bkrtcy.E.D.Tex.)
United States Court of Appeals,
Fifth Circuit.
F.W. SERVICES, INC. & SUBSIDIARIES, PetitionerAppellant
v.
COMMISSIONER OF INTERNAL REVENUE, RespondentAppellee.
No. 1160007.
Jan. 25, 2012.
Background: Taxpayer filed petition challenging Commissioner of Internal Revenue's notice of

deficiency on its corporate income tax return. The United States Tax Court denied the petition,
and taxpayer appealed.
Holding: The Court of Appeals held that funds remaining in taxpayer's deposit account to
reimburse insurer were not deductible as insurance premiums.
Affirmed.
West Headnotes
KeyCite Citing References for this Headnote
220 Internal Revenue

220V Income Taxes
220V(I) Deductions
220V(I)2 Expenses
220k3352 k. Insurance premiums. Most Cited Cases
Taxpayer's contract with insurance company to cover taxpayer's reimbursement obligations to

its insurer under policies covering both workers compensation and employers liability merely
created a deposit account and did not create any shift in risk between taxpayer and insurance
company or between taxpayer and its insurer, and, thus, the $2,483,916 remaining in the
deposit account was not deductible as an insurance premium; although insurer required taxpayer
to reimburse it for the first $500,000 of each claim, and although taxpayer assigned its right to
the funds held by insurance company to its insurer, the account funds served solely as collateral
to ensure that taxpayer paid the loss reimbursements required under its policies with insurer,
and the amount of the loss reimbursement or deductible under the policies did not change as a
result of the assignment. 26 U.S.C.A. 162(a); 26 C.F.R. 1.1621(a).
*390 Bruce Locke, Moss & Locke, Sacramento, CA, for PetitionerAppellant.
Francesca Ugolini Tamami, John Dicicco, U.S. Department of Justice, Clarissa C. Potter, Internal
Revenue Service, Washington, DC, for RespondentAppellee.
Appeal from the Decision of the United States Tax Court, 2713408.
Before KING, JOLLY and WIENER, Circuit Judges.
PER CURIAM: FN*
FN* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
**1 Relying on 26 U.S.C. 162(a) (Section 162(a)), PetitionerAppellant F.W. Services, Inc.
(the Appellant) deducted $2,483,916 from its 2004 income tax return. Appellant had deposited
that amount with an insurance company and identified that deposit as insurance on its tax
return. RespondentAppellee Commissioner of Internal Revenue (the CIR) examined
Appellant's 2004 tax return and issued a deficiency notice after determining that the deposit did
not comprise deductible insurance premiums under 162(a). Appellant filed a petition with the
United States Tax Court (the Tax Court), challenging the CIR's notice of deficiency. The Tax
Court denied the petition, holding that the amounts deposited with the insurance company were
not deductible as insurance premiums. We affirm.
I. Facts and Proceedings

A. FactsFN1
FN1. The parties stipulated the facts in the Tax Court.
Appellant is a temporary personnel agency based in Houston, Texas. It purchased two

insurance policies from American Home Assurance Company (American Home), each covering
both workers compensation and employers liability. Each policy stated that the only agreements
relating to this insurance are stated in this policy, and each required the insurer, American
Home, to pay all valid claims, up to $1,000,000. Each policy also contained a loss
reimbursement endorsement that required Appellant to reimburse American Home up to
$500,000 for each accident, disease, or claim. American Home would not have issued the two
insurance policies to Appellant unless it first made some arrangement acceptable to American
Home to ensure Appellant's financial responsibility for its $500,000 reimbursement obligations.
To satisfy those prerequisites, Appellant entered into a contract with National Union Fire
Insurance Company of Vermont (National Union) which covered Appellant's reimbursement
obligations (Deductible Amounts) under the American Home policies.FN2 This contract required
National Union to pay Appellant's first $3,900,000 of loss reimbursement under the American
Home policies. That amount was the aggregate*391 limit of liability under the National Union
contract, which required Appellant to pay National Union an estimated premium of $3,919,598
and clarified that [t]he actual premium will be determined after this policy ends by using the
actual, not the estimated, premium basis amount for the period of coverage and the rates set
forth in Item 6 of the Declarations page. National Union's contract with Appellant succinctly
explained the nature of the estimated premium: If the final premium is more than the premium
you have paid us, you must pay us the balance. If it is less, we will refund the balance to you.
FN2. National Union and American Home are both subsidiaries of American International Group,
Inc. (AIG).
An Assignment of Return Premium attached to the National Union contract stated that if
this policy is canceled, you hereby assign, and we will pay, any return premium to the insurer or
insurers identified in Item 5 of the Declarations Page, to be held by them as collateral to secure
your payment of deductible reimbursements under the policies identified in Item 5 of the
Declarations Page. Item 5 of the Declarations Page named only American Home.
**2 Other means had been available to Appellant to collateralize its loss reimbursement
obligation to American Home. Appellant nevertheless made a financial decision to acquire the
National Union contract for that purpose.
At the end of 2004, $2,482,916 remained in the National Union loss fund for the payment of
the American Home deductibles. In its federal income tax return for 2004, Appellant deducted
from income the premium it had paid to American Home, as well as all payments it had made to
National Union, as ordinary and necessary business expenses under 162(a). The CIR issued a
notice of deficiency to Appellant, asserting, among other things, that the amounts remaining in
the National Union fund at the end of 2004 were not deductible under 162(a) as insurance
premiums. The CIR did, however, allow Appellant to deduct the aggregate amount of all claims
actually paid by National Union to American Home in 2004.
B. Proceedings
Appellant filed a petition with the Tax Court, urging that the American Home and National
Union contracts be read as one insurance policy for purposes of determining the amount of
insurance premiums that were paid (and thus deductible) in 2004. The CIR countered that the
amounts held in the National Union fund were not insurance premiums, but instead were non-
deductible deposits against the deductibles under Appellant's American Home policies. The Tax
Court ruled that the amount of $2,483,916 held by National Union at the end of 2004 was not
properly deductible. This appeal followed.
II. Discussion
A. Standard of Review
We apply the same standard of review to Tax Court decisions that we apply to district court
decisions: Findings of fact are reviewed for clear error and issues of law are reviewed de novo.FN3
Clear error exists when we are left with the definite and firm conviction that a mistake has been
made. FN4
FN3. Arevalo v. Comm'r of Internal Revenue, 469 F.3d 436, 438 (5th Cir.2006).
FN4. Streber v. Comm'r of Internal Revenue, 138 F.3d 216, 219 (5th Cir.1998).
B. Analysis
1. Contentions of the Parties
Appellant contends that, when read together, the American Home and National Union
contracts are actually one insurance *392 policy, and that a portion of risk is therefore shifted
from Appellant to American Home through all three contracts taken as a whole. Appellant thus
concludes that the funds held by National Union are actually insurance premiums to be paid to
American Home. Appellant reasons that the National Union and American Home contracts should
be considered as one insurance policy because (1) they were entered into on the same day as a
package deal, (2) American Home and National Union were both subsidiaries of AIG, (3) the
American Home policies required Appellant to make some provision for the loss reimbursement
endorsement, and (4) the only reason that Appellant contracted with National Union was to
obtain the American Home policies. Appellant does concede that by itself, the National Union
contract does not shift any risk of loss from F.W. Services to National Union and that, on its own,
the agreement would not be an insurance contract .
**3 By contrast, the CIR reasons that the three contracts are in fact separate and thatwith
respect to the amounts remaining in the National Union fund at the end of 2004the National
Union contract is not insurance. Specifically, the CIR notes Appellant's admission that the
National Union contract itself creates no risk shifting, asserting that, in substance, the National
Union contract serves as a deposit fund to be used to reimburse American Home on Appellant's
behalf for its future losses.
2. Applicable Law
Under 162(a), a taxpayer may deduct all the ordinary and necessary expenses paid or
incurred during the taxable year in carrying on any trade or business. Treasury Regulation 26
C.F.R. 1.1621(a) specifies that insurance premiums against fire, storm, theft, accident, or
other similar losses in the case of business may be deducted as business expenses. The Internal
Revenue Code does not define insurance.
The Supreme Court has defined insurance as involving risk-shifting and risk-distributing. FN5
Accordingly, in this circuit, [r]isk shifting or risk distribution is one of the requisites of a true
insurance contract. FN6 There is likely no risk when the total consideration paid for a policy
exceeds the face value of the insurance provided.FN7
FN5. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 85 L.Ed. 996 (1941).
FN6. Steere Tank Lines, Inc. v. United States, 577 F.2d 279, 280 (5th Cir.1978).
FN7. Helvering, 312 U.S. at 542, 61 S.Ct. 646 (noting that there was no insurance risk where
total consideration was prepaid and exceeded the face value of the insurance policy.)
Certainly, the mere presence of the customary [insurance] provisions does not create risk ...
FN8
Furthermore, even if the contract in question is related to an actual insurance contractsuch
as being entered into on the same day or attached to the actual insurance contractthis, in and
of itself, does not make the former contract insurance. FN9 In light of these considerations, we
look through form to substance when determining the tax effects applicable to a given
transaction.FN10
FN8. Id. at 541, 61 S.Ct. 646.
FN9. Legg v. St. John, 296 U.S. 489, 494, 56 S.Ct. 336, 80 L.Ed. 345 (1936) (The fact that the
disability benefits are provided for in a Supplementary Contract issued on the same day as the
policy and physically attached thereto does not make them life insurance.)
FN10. Estate of Weinert v. Comm'r of Internal Revenue, 294 F.2d 750, 755 (5th Cir.1961).
*393 We have held that funds set aside in reserve or deposit, even if paid to an insurance
company, do not constitute insurance premiums, and therefore are not deductible.FN11
Specifically, if a contract requires the insured to pay all losses, then there is essentially no risk-
shifting to the insurerthus no risk and no resulting insurance.FN12
FN11. Steere Tank Lines, Inc. v. United States, 577 F.2d 279 (5th Cir.1978).
FN12. Id. at 280 (In the present case, there was no shifting of the risk, since [insured] was
obligated to pay all losses.). Other Circuits have held that funds set aside for payment of
anticipated losses in the context of reserve accounts are simply not insurance because they do
not create any shift in risk. Malone & Hyde, Inc. v. Comm'r of Internal Revenue, 62 F.3d 835,
838 (6th Cir.1995) (noting that sums set aside for the payment of anticipated losses through
reserves or otherwise, as a plan for self-insurance, are not deductible business expenses.);
Clougherty Packing Co. v. Comm'r of Internal Revenue, 811 F.2d 1297, 1300 (9th Cir.1987)
(stating that [w]hile insurance premiums are deductible, amounts placed into self-insurance
reserves are not.); StearnsRoger Corp. v. United States, 774 F.2d 414, 415 (10th Cir.1985)
(holding that [s]elf-insurance plans whereby reserves are created or payments made into funds,
accounts or trusts do not constitute insurance and are not deductible.).
We affirm the Tax Court's denial of Appellant's petition for essentially the same reasons stated
by that court. At bottom, the amounts remaining in the National Union fund were simply not
insurance premiums for purposes of 26 U.S.C. 162(a) because the National Union contract
created no shift in risk. Appellant urges that, under the Supreme Court's holding in Helvering v.
Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941), the three contracts must be read
together. As shown by Helvering, however, reading the contracts together does not guarantee
that the National Union contract will be interpreted as creating a shift in risk and, therefore, as
constituting insurance.FN13 When we review the substance of the contracts, we are convinced, as
was the Tax Court, that no shift of risk was created between Appellant and National Union and
that there is no resulting alteration of the risk between Appellant and American Home.
FN13. Helvering, 312 U.S. at 541, 61 S.Ct. 646 (Considered together, the contracts wholly fail to
spell out any element of insurance risk.).
**4 As in Helvering, the total consideration paid for the National Union contract exceeds its
face value. We noted earlier that the National Union contract specifically provides that the
premium will cover the full loss reimbursement paid to American Home, explaining: If the final
premium is more than the premium you have paid us, you must pay us the balance. If it is less,
we will refund the balance to you.
We are satisfied that the funds that remain in the National Union contract are simply held as a
deposit in anticipation of potential future loss reimbursements to American Home. The fact that
the American Home policies require Appellant to reimburse it for the first $500,000 of each claim
does not mean that any account, contract, or fund that Appellant uses to set aside such funds for
future reimbursement automatically qualifies as insurance.
We recognize that Appellant assigned its right to the funds held by National Union to American
Home as collateral to secure [its] payment of deductible loss reimbursements under the
policies ... This assignment, however, does not alter or create any shift in risk: The funds serve
solely as collateral to ensure that Appellant pays the loss reimbursements required under its
policies with American Home. More specifically, the amount of *394 the loss reimbursement or
deductible under the American Home policies does not change as a result of the assignment.
When we look through form to substance, the undisputed facts confirm that the National Union
contract merely created a deposit account and did not create any shift in risk. And, absent such a
shift, the deposit is not deductible as an insurance premium under 162(a).
III. Conclusion
We AFFIRM the Tax Court's denial of Appellant's petition.
Court of Appeals of Kentucky.

Chuck GILBERT, Appellant
v.
BOWLING GREEN MARINE, INC.; and Thomas Eddie Payne, Appellees.
No. 2009CA002403MR.
March 25, 2011.
Appeal from Jefferson Circuit Court, Action No. 07CI004055; Charles L. Cunningham, Jr.,
Judge.
Dana R. Kolter, Louisville, KY, for appellant.
B. Alan Simpson, Bowling Green, KY, for appellee.
Before CAPERTON, COMBS, and KELLER, Judges.
OPINION
KELLER, Judge.
*1 Chuck Gilbert (Gilbert) appeals from the trial court's order modifying an agreed judgment.
On appeal, Gilbert argues that the court lacked jurisdiction to modify the judgment and that
Bowling Green Marine, Inc. and Thomas Eddie Payne (collectively referred to as Payne) had
unclean hands and were not entitled to any equitable relief. Payne argues that the court's order
was correct because the judgment was unconscionably punitive and his hands were clean.
Having reviewed the record, the parties' briefs, and the arguments of counsel, we affirm.
FACTS
The facts are not in dispute. On June 16, 2004, Payne entered into a five-year lease with
Gilbert for a piece of commercial real estate in Bowling Green, Kentucky. The lease called for
Payne to pay rent in the amount of $53,100.00 the first year and approximately 3% more per
year in each successive year. In addition to the rental payments, the lease required Payne to pay
real estate taxes, utilities, and for liability and casualty insurance. The lease provided that Payne
would use the premises for boat and ATV sales and service and that Payne could renew the lease
for an additional five years.
In August 2006, Payne defaulted on the lease and vacated the premises, leaving behind some
personal property. Thereafter, Gilbert filed a complaint seeking payment for past due and future
amounts due under the lease. Gilbert also filed a motion for summary judgment. In his motion,
Gilbert noted that he had re-let the premises temporarily to the Tennessee Valley Authority
(TVA). Taking the amount paid by the TVA from the amount Payne owed in past due rent, late
fees, taxes, court costs, and attorney fees, Gilbert calculated damages of $49,193.65. The court
granted Gilbert's motion and awarded him the amount he sought.
Following entry of summary judgment, which did not address Gilbert's claims to future rent
under the lease, the parties entered into an agreed judgment. That document provided as
follows:
1. The [sic] CHUCK GILBERT is granted judgment against the Defendants BOWLING GREEN
MARINE, INC. and THOMAS EDDIE PAYNE the compromise amount of $100,000.000 [sic] with
interest at the legal rate of 12.00% per annum from the date of entry of the judgment until paid
in full with the gross taxable costs of this action. This compromise includes all future claims
subject of the lease between the parties and with the entry of this judgment that lease is
terminated, settled and superseded by the terms of this judgment.
2. That in consideration and exchange for this agreed judgment terminating this litigation and
the Plaintiff, CHUCK GILBERT releasing all garnishments, executions and judgment liens
[Defendants will pay any filing fees associated with the releases and will file and serve the
releases] currently resulting from enforcement of the December 14, 2007 judgment for accured
[sic] rents and charges due under the lease, the defendants, BOWLING GREEN MARINE, INC.
and THOMAS EDDIE PAYNE have agreed to pay a compromise amount in equal monthly
installments on or before the due date until the compromised is paid in full.. [sic] This amount
due in paragraph 1 of this judgment may be satisfied by compromise if and only if it is paid by
the Defendants, as follows [otherwise the full amount is due and execution and enforcement of
the full amount due in paragraph 1 may occur]:
*2 A. The Defendants, agree to pay the sum of $50,000.00 at 12% compounded annually in
equal monthly payments for a period of two years on or before January 11, 2008 and by the
11th of the month thereafter for a total of 24 months. That [sic] parties agree that this means
that the Defendants agree to pay $2,353.67 on or before January 11, 2008 and thereafter
payments of $2,353.67 per month toward payment of the judgment with payments being due on
or BEFORE THE 11th of EACH AND EVERY MONTH until paid in full which will mean a total paid at
the end of 24 months of $56,488.08.
....
C. In the event the Defendants fails [sic] to deliver payment of the amount due on any given
date, Defendants shall be in default. In the event of default, the entire balance under paragraph
1 above less credit or [sic] any payments made shall become due and payable in full and shall
bear interest until paid in full.
D. That in the event of default, it is agreed and understood that the Plaintiff shall have the right
to immediate execution, including garnishments, for all sums detailed above including the
balance, interest, and court costs.
....
The above terms and conditions are ordered and adjudged and made part of this judgment. This
judgment supersedes and merges the previous judgment entered in this Court on December 14,
2007. The above terms and conditions are ordered and adjudged and made part of this
judgment....
In essence, the agreed judgment called for Payne to make twenty-four monthly payments
totaling $50,000.00 plus interest in exchange for Gilbert's waiver of his claim to entitlement to a
total of $100,000.00 plus interest. Thus, if Payne failed to timely make the monthly payments,
he would owe an additional $50,000.00. The judge signed the agreed judgment, and it was
entered by the clerk on January 22, 2008.
On October 22, 2009, Gilbert filed an affidavit for writ of garnishment stating that Payne owed
$69,871.19 on the January 2008 agreed judgment. The amount listed in that affidavit
represented the total amount of the agreed judgment ($100,000.00) plus interest and minus the
monthly payments made by Payne. The court entered an order of garnishment and Payne filed a
motion to quash the garnishment and to amend the judgment pursuant to Kentucky Rule of Civil
Procedure (CR) 60.02. In his motion, Payne noted that he had made twenty-one of the twenty-
four monthly payments under the agreed judgment and that Gilbert had garnished one monthly
payment. Therefore, only two payments were due and owing at the time Payne filed his motion.
Furthermore, Payne noted that Gilbert had successfully re-let the premises and that permitting
him to recover the entire $100,000.00 from Payne would amount to a double recovery.
In his response to Payne's motion, Gilbert stated that the original lease called for payments
totaling $291,437.27 and that the property had been significantly altered to meet Payne's needs.
Gilbert noted that, when Payne vacated the premises and stopped making payments under the
lease, the parties negotiated a mutually beneficial compromise settlement, which they reduced to
an agreed judgment. Payne did not timely make all of the payments called for in the judgment,
and Gilbert argued that he should not be rewarded for his failure to do so. Gilbert did not
address whether he had re-let the premises after the expiration of the TVA's temporary lease.
*3 Following a hearing,FN1 the court entered an order granting Payne's motion. In doing so,
the court characterized the additional $50,000.00 payment as a penalty. The court noted that the
parties can agree to a seemingly excessive penalty for delay if time is of the essence. The
court noted that the agreed judgment did not recite that time was of the essence. Furthermore,
the court noted that Gilbert had previously accepted late payments with no complaint. Based on
the preceding, the court found that the $50,000.00 penalty was inequitable, quashed the
garnishment, and ordered Payne to make a $1,400.00 late penalty payment. It is from this order
that Gilbert appeals.
FN1. We note that the parties refer to the hearing in their briefs; however, there is no copy of
that hearing in the record. Furthermore, we can find no designation of record indicating what the
circuit clerk was to provide to us on appeal. There is a copy of the clerk's certification of record
that indicates that the only record to the Court of Appeals was the written record. Having noted
the preceding, we do not believe that a transcript or audio or video recording of the hearing
would be instructive; therefore, we have not requested one.
STANDARD OF REVIEW
Gilbert makes three arguments, which have differing standards of review. Therefore, we set
forth the appropriate standard below as we address each of Gilbert's arguments.
ANALYSIS
1. Whether the Court Had Jurisdiction Under CR 60.02
Gilbert argues that the court did not have jurisdiction to address Payne's motion under CR
60.02. Whether the trial court has acted outside its jurisdiction is a question of law. Therefore,
the standard of review is de novo. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810
(Ky.2004).
CR 60.02 provides that:
On motion a court may, upon such terms as are just, relieve a party or his legal representative
from its final judgment, order, or proceeding upon the following grounds: (a) mistake,
inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c)
perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (f) any other reason of an
extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on
grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was
entered or taken. A motion under this rule does not affect the finality of a judgment or suspend
its operation.
Having reviewed the record, we note that Payne alleged entitlement to relief under CR
60.02(e) and/or (f). Gilbert argues that Payne is not entitled to relief under either provision. As
to section (e), Gilbert argues that the judgment, although it provides for timed payments and
has a contingency, is simply a judgment for money damages and has no prospective
application. In support of this argument, Gilbert cites to Alliant Hospitals, Inc. v. Benham, 105
S.W.3d 473 (Ky.App.2003). In Benham, the parents of a disabled child sued the hospital claiming
that the child's disability resulted from negligence during labor and delivery. A jury awarded
more than three million dollars in damages, two million of which was for future medical
expenses. After entry of the judgment and while post-trial motions were pending, the child died.
The hospital then moved to set aside that portion of the judgment related to future medical
expenses, arguing under CR 60.02(e) that it was no longer equitable to enforce the future
medical expenses portion of the judgment. This Court held that CR 60.02(e) did not apply
because a simple judgment for money damages, even one not yet enforced, does not have
prospective application. Id. at 478. In doing so, this Court adopted the federal court
interpretation of its own similar rule as applying primarily to injunctive relief or similar judgments
that contemplate the supervision of changing conduct or conditions [that] are ... provisional
and tentative. Id. (Footnote omitted.)
*4 We believe that Benham is distinguishable for two reasons. First, the damage award for
future medical expenses in Benham was not contingent on future developments but was fixed.
The damages herein were not fixed but contingent on Payne making timely payments, thus
rendering the judgment provisional and tentative. Second, as noted by this Court in Benham, the
former Court of Appeals held in Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky.1959), that
judgments that have not been satisfied in full but remain in whole or in part unenforced ... are
capable of having prospective application.... The judgment herein had not been satisfied in full
but remained partially unenforced. Therefore, we hold that the circuit court had jurisdiction
under CR 60.02(e) to review the agreed judgment.
Although our above holding renders Gilbert's argument regarding CR 60.02(f) moot, we
briefly address that argument. In Benham, this Court held that CR 60.02(f) only applies when
another provision of CR 60.02 does not. As we understand it, Gilbert argues that Payne's motion
was based on newly discovered evidence; i.e. that Gilbert had continued to lease the property
during the intervening years, thus placing Payne's motion within CR 60.02(b). Because a CR
60.02(b) motion must be brought within a year, Gilbert argues that Payne's motion was not
timely brought and the circuit court therefore had no jurisdiction.
This argument fails for three reasons. First, the parties agree that Gilbert was able to re-lease
the property after Payne defaulted. However, as set forth by Gilbert in his motion for summary
judgment, the lease was only for a period of six months. Therefore, the lease would have expired
at or near the time the parties entered into the agreed judgment. Any lease entered into after
that time would not have been in existence at the time of the judgment and, therefore, could not
be newly discovered. Benham, 105 S.W.3d at 47879. Second, there is no evidence of record
regarding the existence of any lease after the TVA lease was scheduled to expire. Evidence that
does not exist cannot be newly discovered. Third, the circuit court did not make a finding
regarding the existence of any subsequent lease and it did not base its order on any such lease.
Therefore, we are not persuaded by Gilbert's argument that CR 60.02(b) would apply to this case
and act to negate a claim for relief under CR 60.02(f).
For the foregoing reasons, we hold that the circuit court did have jurisdiction under CR 60.02
to rule on Payne's motion.
2. Whether the Circuit Court's Order Was Whimsical

Gilbert argues that the circuit court acted upon a whim when it undertook to re-write the
agreed judgment. We disagree.
The standard of review of an appeal involving a CR 60.02 motion is whether the trial court
abused its discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000); see also
Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky.2002).
To amount to an abuse of discretion, the trial court's decision must be arbitrary, unreasonable,
unfair, or unsupported by sound legal principals. Clark v. Commonwealth, 223 S.W.3d 90, 95
(Ky.2007) ( citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999)). Absent a flagrant
miscarriage of justice, the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853,
858 (Ky.1983).
*5 The circuit court determined that: the agreed judgment was not enforceable because the
additional $50,000.00 payment was a penalty; such a large penalty for a late payment might
have been supportable if the parties had specified that time was of the essence, which they did
not; and Gilbert had, in the past excused a number of late payments. Initially, we note that a
court's finding that a payment amounted to a penalty is generally made with regard to a
contractual term rather than a judgment. However, we believe the court's finding and analysis
herein are appropriate because the agreed judgment, which provides contingent payment
schemes, is contractual in nature.
Kentucky follows the Restatement (Second) of Contracts with regard to determining the
difference between acceptable liquidated damages and penalties.
Damages for breach by either party may be liquidated in the agreement but only at an amount
that is reasonable in the light of the anticipated or actual loss caused by the breach and the
difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable
on grounds of public policy as a penalty.
Anticipated loss refers to the time of the making of the contract. Actual loss refers to the
circumstances upon occasion of the breach. These are two prongs, which apply alternately. If the
award of liquidated damages exceeds any reasonable limitation by either one or the other, to
such extent it is unenforceable.
Mattingly Bridge Co., Inc. v. Holloway & Son Const. Co., 694 S.W.2d 702, 70405 (Ky.1985) (
citing Restatement (Second) of Contracts 356(1) (1981)).
Gilbert may have had an argument that the additional $50,000.00 payment was reasonable at
the time the agreed judgment was entered since neither party knew what the actual damages
would be. However, at the time of the breach, two months shy of discharge of the debt, the
actual damages could easily have been determined. Gilbert did not file any evidence of record to
support any claim that the additional $50,000.00 payment represented his actual losses or any
portion of his actual losses. In light of that absence of evidence, it was not unreasonable for the
circuit court to conclude that the additional $50,000.00 payment represented a penalty and that
such a large penalty was not enforceable as unconscionable.
We recognize Gilbert's argument that the parties should be permitted to make whatever deal
they want no matter how bad that deal may be. However, as noted by the circuit court, there are
limits to that maxim. When a contract does not provide that time is of the essence, the court
should not impose such a restriction on the parties. Farmers Bank and Trust Co. of Georgetown,
Kentucky v. Willmott Hardwoods, Inc., 171 S.W.3d 4, 8 (Ky.2005). Gilbert's argument for relief is
that Payne failed to timely make a payment. Absent a provision that time is of the essence,
Gilbert had some obligation to show that a delay in payment resulted in $50,000.00 in damages.
Gilbert did not do so and, we suspect, he could not have done so since he had waived the late
payment provision a number of times in the past.
*6 Based on the preceding, we hold that the circuit court did not abuse its discretion when it
re-formed the agreed judgment.
3. UnClean Hands Doctrine

Gilbert argues that Payne was not entitled to equitable relief under the unclean hands
doctrine because he did not timely make all of the payments called for in the agreed judgment.
The unclean hands doctrine is a rule of equity that forecloses relief to a party who has engaged
in fraudulent, illegal, or unconscionable conduct but does not operate so as to repel all sinners
from courts of equity. Suter v. Mazyck, 226 S.W.3d 837, 843 (Ky.App.2007) ( citing
Dunscombe v. Amfot Oil Co., 201 Ky. 290, 256 S.W. 427, 429 (1923)). Payne's failure to make
timely payments amounted to a breach of contract. It did not amount to fraudulent, illegal, or
unconscionable conduct; therefore, the unclean hands doctrine has no application to this case.
CONCLUSION
For the reasons set forth above, we affirm the circuit court.

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Holdings: The Appellate Court, DiPentima, C.J., held that:

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The subsequent pertinent procedural history of the case is as follows. On

**9 Nevertheless, to support its narrow interpretation of the McDonnell Douglas

Second, it is axiomatic that requiring a plaintiff to establish his or her job

The judgment is affirmed.

In this opinion the other judges concurred.

FN2. General Statutes 46a60 (a) provides in relevant part: It shall be a

FN12. General Statutes 1452(b)(4) requires, inter alia, licensed automobile

Judges and Attorneys (Back to top)

Cosgrove, Hon. Emmet L.

DiPentima, Hon. Alexandra Davis

Prescott, Hon. Eliot D.

Attorneys for Defendant

Giordano, Stella Szantova