Newsletters

LIQUOR LIABILITY          NOVEMBER 2011          ISSUE XXI

Liquor Liability Insurance Can Be Confusing

Liquor liability insurance policies are unique creations and are usually separate from a standard commercial liability policy.  They were created for a specific, narrow purpose and vary in their language and coverage much more than other types of policies.  Further, liquor liability policies contain exclusions and coverage limitations specific to the liquor industry which can create surprising uninsured and underinsured situations regardless of what the insured thought when the policy was purchased.

By way of background, a Connecticut liquor establishment would traditionally buy a “restaurant package” of policies which consisted of a commercial general liability policy (CGL) to cover mishaps and a “dram shop policy” to cover liquor related liability.  The CGL excluded all alcohol-related claims and the Dram Shop policy specifically covered liability pursuant to CGS 30-102, the Dram Shop Act.  The insuring agreement in the Dram Shop policy expressly stated that it covered all liability resulting from a violation of CGS 30-102.  As the Dram Shop Act created a liability where none had existed under the common law, the Dram Shop policy covered any and all possible liquor related claims.  The combination of the two policies was essentially a seamless web covering all possible liquor related and non liquor related claims. The two policy approach is very significant from a practical perspective. We recently had a case where the defense counsel for a bar sent over a copy of the CGL policy with a letter stating that as the CGL excluded liquor related claims, there was no coverage.  My first question was “Where is the other policy?” On further review of her file, the defense counsel realized that the CGL was not the only coverage and that the “other policy” from her client’s restaurant package had $300,000 in liquor liability coverage.

 The seamless web of coverage under the restaurant package was breached in the 1970’s with the pivotal decision of Kowal vs. Hofher, 181 Conn. 355 (1980), which established a common law cause of action for reckless service of alcohol. Kowal was followed by Ely vs. Murphy, 207 Conn. 88 (1988), which created a common law claim for negligent provision of alcohol to a minor, and later by Craig vs. Driscoll, 262 Conn. 312 (2003), which did away with all restrictions by creating a claim for simple negligent service of alcohol.  Although the generic negligent service of alcohol cause of action was legislatively overruled by an amendment to CGS 30-102, the Dram Shop cap was increased from $20,000 per person and $50,000 per occurrence to $250,000 per occurrence effective upon the governor’s signature.  The unforeseen result was that almost every liquor establishment in the state was left severely underinsured for Dram Shop claims and uninsured for recklessness and negligent sale to minors.  As the “bad act” in the sale to a minor is sale to an underage rather than intoxicated person, there were claims for sales to sober minors which the Dram Shop policy didn’t even apply to.

The response by the insurance industry was to create a "liquor liability" rather than Dram Shop policy.  The new policy had an insuring agreement which covered all injuries caused by the sale of alcohol rather than restricting itself to the Dram Shop Act.  The policy limits were typically either $300,000 or $1 million rather than the statutory $20,000 per person/$50,000 per occurrence.  The policy still stands separate from the CGL policy, but provides both increased limits and broader coverage than the old Dram Shop policy. As a practical matter, the policy does not require a sale to an “intoxicated” person, so it goes much farther than the Dram Shop Act.  While it took some months for the shift to occur, the dust finally settled and it appeared that proper coverage was finally available.

The liquor liability policy had one restriction, however, which was quite rare in the old Dram Shop policies, an Assault and Battery exclusion.   For the most part, the exclusion was inserted into policies without much fanfare and insureds generally learned of the exclusion when they received a letter from the carrier denying coverage for a claim.  The A&B exclusion is quite broad and has been uniformly enforced by Connecticut courts.  See Kelly vs. Figueiredo, 223 Conn. 31 (1992), Harris v. Hermitage Ins. Co., No CV-08-5021329S (Oct. 13, 2009),  and Clinch v. Generali-U.S. Branch, 110 Conn. App. 29 (2008).

Notably, the same exclusion was also inserted into the CGL policies which left the liquor seller without coverage regardless of whether alcohol was involved or not.  As an alternative to a broad exclusion, some carriers did include coverage for assaults, but at a reduced limit.  For example, although the overall liquor liability coverage was $1 million, the coverage for assault and battery might be $50,000 or $100,000.  Depending on the policy, the assault and battery coverage might also be reduced by defense costs.  Like a CGL policy, the liquor liability policy is an "occurrence" policy, which means that the policy in place on the date of the occurrence is exposed.

 The ultimate result is that a liquor liability policy may or may not have an Assault and Battery exclusion, may have lower limits for Assault and Battery, and may even have variations in the exclusion language that make it inapplicable to particular circumstances. Unlike Auto policies, which are taken from a template and have statutorily required conditions, the Assault and Battery exclusions are often drafted by the carriers themselves and may be broader or narrower than the drafters intended.  Take a look at this exclusion from a liquor liability policy:

 “We have no duty to defend or indemnify any insured or any other person against any claim or suit for bodily injury, property damage, personal injury, or advertising injury, including claims or suits in negligence arising out of or related to any:  (1) Assault; (2) Battery; (3) Harmful or offensive contact; and (4) Threat."

Can you see the error?  By leaving out a comma between "negligence" and "arising," the policy either excludes negligent assault only, or all claims regardless of type.  No court would endorse an exclusion of all claims, and "negligent assault" is very limited if it exists at all.  While I assume that the carrier corrected the error by now, they wound up providing coverage on two assault cases once the error was pointed out to them (pointed out forcefully and repeatedly, I might add).

In short, assessing the scope of the coverage and the limits is critically important both for plaintiffs' attorneys and the insureds alike.  Although plaintiffs and defendants may be adversarial in court, neither wants to find out post trial that the liquor liability coverage they had all counted on doesn't exist.

Two revisions to loan limits are due to occur on October 1, 2011.  One revision is related to the elevated conforming loan limits for mortgages guaranteed or insured by the government, such as FHA mortgages.  By way of background, the national conforming loan limit for mortgages that finance single-family, one-unit properties increased from $33,000 in the early 70's to $417,000 in 2006-2008.  These limits were 50 percent higher for Alaska, Hawaii, Guam, and the U.S. Virgin Islands, four statutorily designated high cost areas.  In 2008, Congress raised the one-unit limit to a high of $729,750 in certain high-cost areas in the contiguous United States, when financing became unavailable for larger mortgages.  On October 1, the limit will drop to $625,500 in the most expensive areas, mostly affecting the East and West Coasts.  According to Standard & Poor's, this will affect approximately 110,000 mortgages in the nation.  Efforts are being made to ensure that a temporary extension on the loan limits is included in a bill to appear before the House and Senate later this year to reverse this limit reduction. 

The other revision applies to any conventional mortgage delivered by Fannie Mae or Freddie Mac.  Effective on October 1, 2011, these mortgages will be subject to the "permanent" high-cost area loan limits established by the Federal Housing Finance Agency (FHFA) using a formula of 115% of the 2010 median home price.  The maximum amount allowed under this formula is $625,500 for single-unit properties located in the continental United States.  The maximum loan limits that apply to loans acquired in calendar year 2011 and originated after 9/30/2011 or prior to 7/1/2007 are shown on the FHFA website and are broken down by state and then by county.  These limits were determined under the provisions of the Housing and Economic Recovery Act of 2008, the law created to enable an estimated 400,000 borrowers in danger of losing their homes to refinance into more affordable, government-ensured mortgages.

In Romprey et al v. Safeco Insurance Company of America, the Connecticut Appellate court examined the sufficiency of notice made by an insured to her insurance carrier that she was filing a claim against her underinsured motorist coverage policy. On November 16, 2004, Dolly Romprey was involved in a motor vehicle accident with Donna Kempton. Ms. Romprey was able to collect $25,000 from Ms. Kempton, but sought to recover further from her own insurance carrier, Safeco Insurance, pursuant to her uninsured/underinsured motorist coverage policy. She filed suit on February 26, 2008. The defendant, Safeco Insurance, filed a motion for summary judgment claiming that the plaintiff’s complaint should be dismissed as it was time barred. The defendant’s argument was based on both the insurance policy, which provided that any action based on underinsured motorist coverage must be made within three years from the date of the accident, and C.G.S. Sect. 38a-336(g)(1). The statute provides that a three year limit can be set, except that in an action for underinsured motorist coverage this time limit can be tolled if the insured notifies the carrier in writing of any claim the insured may have for underinsured motorist coverage, or by commencing suit or demanding arbitration under the terms of the insurance policy not more than 180 days from the exhaustion of the limits of liability under all other insurance policies. In opposition to the motion for summary judgment, the plaintiff submitted two copies of letters signed by a paralegal in her attorney’s office. The first letter, dated December 12, 2005, stated that enclosed were all reports and medical bills related to the motor vehicle accident. It also stated that “we have exhausted Ms. Kempton’s policy.” The second letter was dated February 24, 2006, and included a formal demand for arbitration. In addition, the plaintiff submitted a document entitled “Settlement Statement” which stated that the plaintiff received a $25,000 settlement from Ms. Kempton. The trial court granted the defendant’s motion for summary judgment and found that, despite its submissions to show otherwise, the plaintiff’s action was filed more than three years after the accident, and the time limit was not properly tolled by notification of an underinsured motorist claim.

On appeal, the Connecticut Appellate Court upheld the trial court's ruling.  The Appellate court examined the sufficiency of the notice the plaintiff attempted to show by submitting the letters and the settlement statement.  They found that they agreed with the trial court that the plaintiff did not sufficiently demonstrate that the claim was one for underinsured motorist coverage.  The tolling provisions found in the policy, as well as C.G.S. Sec. 38a-336(g)(1), apply only to claims involving underinsured, not uninsured motorist coverage. Therefore, the court reasoned the plaintiff had to show that she had exhausted the limits of Ms. Kempton's policy and had notified Safeco of the exhaustion within three years of the accident.  The court further found that the settlement statement the plaintiff submitted was insufficient for doing this - while it stated that $25,000 had been paid to the plaintiff in settlement, it did not explicitly state whether this was paid from Ms. Kempton's insurer; and if so, if it exhausted the policy limits.  The plaintiff also relied on the letters to Safeco from her attorney's office to show that Ms. Kempton did have insurance coverage and that the coverage was exhausted.  The court agreed with the trial court that these documents were simply copies of letters and were not authenticated, and therefore were inadmissible hearsay and could not be considered by the court as evidence of the existence of the policy or that it was exhausted.  The plaintiff further argued that she had a reasonable belief that the defendant had waived its right to the three year time limit based on its actions, and therefore the motion for summary judgment should have been denied.  The plaintiff asserted that because an adjuster from Safeco had discussed the case with plaintiff's counsel within the three year time limit, they believed there was notice.  However, the court found that Safeco had no duty to inform plaintiff's counsel that the claim would be denied.  The Appellate Court upheld the trial court's ruling that the notice of an underinsured motorist claim in this case was insufficient due to the ambiguous language used by plaintiff's counsel in their letters to Safeco, and therefore the filing of the claim was time barred.

                                  REAL ESTATE NEWSLETTER    JUNE 2011    ISSUE X

Bill Signed by Governor to Increase Real Estate Conveyance, Gift and Estate Taxes

              A budget bill approved by the General Assembly has been signed by the Governor that increases the real estate conveyance tax, gift and estate taxes.   The bill increases the real estate conveyance tax by ¼ of one percent. The impact of the changes is summarized below.

                 Real Estate Conveyance Tax

 Under this portion of the bill, the threshold on the estate and gift tax is lowered from $3.5 million to $2 million, in essence exposing more gifts and estates to taxation.  Gifts and estates valued between $2 million and $3.5 million will be taxed at 7.2% on the amount exceeding $2 million.

 The change to the estate tax will be applicable to estates of decedents who die on or after January 1, 2011.  The change to the gift tax will be applicable to Connecticut taxable gifts made by a donor during a calendar year commencing on or after January 1, 2011, including the aggregate amount of all taxable gifts made by the donor during all calendar years commencing on or after January 1, 2005.

          On Monday, May 13, 2011, the Connecticut Appellate Court handed down two decisions which affirmed the "visible intoxication" standard for liability under the Connecticut Dram Shop Act, Connecticut General Statutes Section 30-102. Until these decisions came down, the visibility standard was being eroded by various trial court decisions which were allowing proof of intoxication by other methods, such as blood alcohol content and reaction time impairment, both of which are nearly impossible to observe at levels below .10.  On May 14, I began jury selection on a dram shop case.  The plaintiff submitted a pleading requesting that the jury be allowed to consider non visible proof of intoxication, even instructions that a finding of "substantial intoxication" was sufficient to trigger liability under the Act.  The plaintiff's request did not define "substantial intoxication," a term which I had never seen in Connecticut case law. 

          With the new appellate decisions in hand, the court gave the long standing "Saunders" definition of intoxication to the jury which expressly stated that visible intoxication was a requirement.  Note that the Saunders definition has been given in Connecticut cases for decades, and it is only in the last few years that trial courts began playing with the language.  After three days of trial and five hours of deliberation, the jury returned a verdict in the defendant's favor. Although the alleged intoxicated person was at .14 at the time of the collision, testimony by two toxicologists established that the driver could not have been visibly intoxicated at the time of last service.  The last service had occurred nearly two hours before the collision and immediately after the driver had consumed at least 5 shots of whiskey in the parking lot before entering the establishment.  In short, the driver consumed all of the alcohol within a 20-minute span and was served well before the alcohol had fully entered his bloodstream.  Witnesses at the bar described the driver as somewhat talkative at the bar, but not exhibiting signs that a casual observer would consider as intoxication. 

          While the jury wrestled with sympathy for the plaintiff, they adhered to the law and returned a verdict for the defendant. The significance of the case is that it was the first I've tried since the visibility standard was confirmed.  It was much less confusing to the jury than other cases I've tried, since various judges have been putting their own spin on the visibility standard. In some cases the judge would simply add a few lines telling the jury they could consider other factors than visibility, such as blood alcohol levels and drinking pattern.  At its worst, the jury sent a question to the judge asking for a clarification of the definition of intoxication, and the judge replied that there was no clear definition.  That jury deadlocked, and four weeks of trial went down the drain. 

          Although the visibility standard is now clear, it is still a standard which liquor servers must adhere to.  A little prevention and risk management goes a long way toward preventing Dram Shop claims and making them easier to defend if they are brought.  Responsible service training is an issue in each of the cases I've tried over the past few years.  While standards for the hospitality industry are now so clearly defined, TIPS training is available for free from a number of Connecticut Wholesalers and there is literally no excuse for having untrained employees.  Aside from servers, security and floor staff should also be trained as they are equally responsible for identifying and dealing with intoxicated patrons.

LIQUOR LIABILITY     MAY 2011     ISSUE XVIII

Definition of "Intoxication" Clarified

            On Monday, May 16, 2011, the Connecticut Appellate Court handed down two decisions which clarified the definition of "intoxication" under the Dram Shop Act.  By way of background, the Connecticut Dram Shop Act creates liability for a liquor seller who provides alcohol to an intoxicated patron who thereafter causes injury to another person.  The Act has three elements:  (1) the sale of liquor to (2) an intoxicated person who (3) causes injury or damage to another as a result of the intoxication.  There has been an ongoing dispute in Connecticut trial courts over the past several years regarding the second element; that is, what is the definition of an "intoxicated" person?  Traditionally, courts had defined intoxication as visible intoxication.  In order to establish the second element, the patron had to exhibit some signs of intoxication such as imbalance, slurring, odd behavior, and so on. The unspoken rationale was that the seller would see the intoxication and have an opportunity to stop service.  Indeed, all of the safe service training programs concentrate on detecting the signs of intoxication at various levels.

        Several years ago, a trial judge in New London held that as the Dram Shop Act didn't specifically say "visible," that intoxication could mean just about anything.  While that may seem like a bad decision, it was a classic example of the old saying that "tough cases make bad law."  Over time, several other trial court judges across the state held that visibility was not a requirement under the dram act and that a jury could consider other factors, such as blood alcohol level and studies showing what percentage of people would appear intoxicated at particular levels. These decisions culminated in two jury cases where the juries held two bars responsible for injuries caused by intoxicated patrons even though there was no evidence whatsoever of visible intoxication.  In each case a young man was killed, resulting in verdicts of $4 million and $1 million. In Zaneski vs. Thirsty Turtle, the judge overturned the verdict, holding that there was no evidence of visible intoxication.  In the O'Dell vs. Kozee case, the judge let the verdict stand.  Both cases went up on appeal.

          The Appellate Court, in two separate decisions by two different judges, held that the standard for the second element of the Dram Shop Act is "visible" intoxication.  Unless an intoxicated person  manifests some signs that would be apparent to the casual observer, there is no liability under the Dram shop Act.  The importance of these decisions is significant.  indeed, on the O'Dell case both the Connecticut Restaurant Association and the Connecticut Trial Lawyers Association weighed in by filing briefs on opposing sides.  Absent a visible standard, "intoxication could mean anything from the slight warmth after a single cocktail to minor changes in reaction time after a single beer.  I tried a case last April for four weeks which resulted in a mistrial after the judge gave a vague definition of intoxication and a hold out juror decided that a single drink resulted in impairment.  Further, as stated above, all of the safe service programs focus on visible signs.  Absent a visibility requirement, there really is no way to avoid liability short of refusing to sell alcohol at all.

          Although signs of intoxication must be visible, this does not mean that the signs actually have to be seen by the liquor seller.  So long as the signs are apparent to a casual observer, the second element is satisfied.  As such, it is not a defense that the server simply didn't observe the signs that were there to be seen.  To avoid Dram Shop liability, a liquor establishment should take advantage of the various safe service programs which are available and make sure that all employees, including wait staff and security, are properly trained and current on their certifications.

REAL ESTATE NEWSLETTER    MAY 2011    ISSUE IX

Increase In Real Estate Conveyance Tax, Gift and Estate Taxes Likely

           A budget bill has been approved by the General Assembly that includes increases in the real estate conveyance tax, gift and estate taxes.   The bill increases the real estate conveyance tax by  ¼ of one percent. The impact of the changes is summarized below.

                 Real Estate Conveyance Tax

                Taxes on residential property (and vacant land) will increase from ½ of one percent to ¾ of one percent. 

 Taxes on residential property conveyed for more than $800,000 (known as the "mansion tax") will be taxed at ¾ of one percent up to $800,000 and 1 and 1/4 of one percent on the amount over $800,000.

 Nonresidential property currently taxed at 1 percent will increase to 1 and ¼ of one percent.

 Conveyances to a financial institution of property with mortgage payments that have been delinquent for not less than six months will increase from ½ of one percent to ¾ of one percent.

 The bill provides that revenue resulting from these state tax increases will be deposited into a municipal revenue sharing account to be used for municipal grants.  It also makes permanent the current general municipal rate, which was due to revert on July 1 to its earlier rate of eleven one-hundredths of one percent.  Instead, it will remain at ¼ of one percent.

 It is also expected that the Department of Revenue Services will be amending the conveyance tax return form in the near future.

 If the bill is signed into law by the Governor, these changes will go into effect on July 1, 2011 and will apply to conveyances that occur on or after that date. 

 Estate and Gift Taxes

 Under this portion of the bill, the threshold on the estate and gift tax is lowered from $3.5 million to $2 million, in essence exposing more gifts and estates to taxation.  Gifts and estates valued between $2 million and $3.5 million will be taxed at 7.2% on the amount exceeding $2 million.

 The change to the estate tax will be applicable to estates of decedents who die on or after January 1, 2011.  The change to the gift tax will be applicable to Connecticut taxable gifts made by a donor during a calendar year commencing on or after January 1, 2011, including the aggregate amount of all taxable gifts made by the donor during all calendar years commencing on or after January 1, 2005.

GENERAL LIABILITY    FEBRUARY 2011    ISSUE XIV

LIQUOR LIABILITY         DECEMBER 2010                           ISSUE XV

Belly Up To The Bar...And Spread'em!

           On April 30, 2010, Liquor Control agents in conjunction with State police conducted a raid on a permit premises best described as a college bar. An undercover state trooper was sent to observe the activities, and he later notified troopers and agents who swept in. While on premises, the undercover trooper witnessed a female, age 20, entering the premises and noted another female on premises who he thought looked intoxicated.  As the premises had a restaurant permit, the presence of the underage female was not a violation as minors are permitted in the dining area.  Once she purchased a drink, however, it became a violation.

Thus far, the raid is no different than other raids conducted on a regular basis all across the state. Indeed, these particular premises had been raided three times previously with no violations. While serving a minor is certainly a violation, a single minor in a crowded college bar is nothing to write home about. What set this raid apart, however, was the turn the investigation took after the agents and troopers swept in. 

Aside from the single minor, the trooper thought that another patron might be intoxicated. The liquor agents then began accosting patrons and administering field sobriety tests. Notably, all of the patrons accosted by the agent were of legal age. The agent's description of one encounter with a 23-year-old man is as follows:

             "Following the undercover investigation, Trooper Smith reported speaking with (the man) and observing that his eyes were extremely bloodshot and he spoke with a thick slurred speech.  (The man) stated that he consumed three beers and two shots.  (The man) was then directed to me (Special Agent Jones).

During my interview with (the man), he admitted to purchasing three to four draught beers and one hockey shot (a beverage containing vodka, black raspberry liqueur, blue Curacao, and Sprite).  He stated that he was served by the young blonde bartender later identified as (bartender one).

While speaking with (the man), there was a strong odor of alcohol emanating from his breath, his gate (sic) was unsteady, and his speech was slurred.  With the consent of (the man), I performed the Horizontal Gaze Nystagmus test in front of the premises where it was brightly lit. The HGN test resulted in a total of six (6) clues consisting of the following:  (1) Lack of smooth pursuit-Both eyes (2 clues); (2) Distinct Nystagmus at maximum deviation- Both eyes (2 clues); (3) Onset of Nystagmus prior to 45 degrees- Both eyes (2 clues).

Following the administering of the standardized field sobriety test and based on the clues observed, it was determined that this patron was intoxicated with a BAC of at least .08. Based on the fact that this person was allowed into the barroom and also served alcoholic beverages on multiple occasions after displaying signs of intoxication, the premises is in violation of 30-86(b) "Sale to intoxicated person and 30-90 Intoxicated person in barroom. "

 A similar report was made with the same testing for two other of age patrons. The permittee was charged with one count of sale to a minor and three counts of sales to intoxicated patrons. While a sale to a minor charge typically carries a penalty of three days suspension and a $750 fine, the Commission demanded 14 days suspension and a $4,500 fine.

So what is wrong with this picture? Aside from the patent offensiveness of enforcement agents entering a restaurant and field testing patrons, a number of basic issues arise. First, determining whether a person is at a .08 BAC is difficult. Toxicologists generally agree that most people don't show visible signs of intoxication until they get into a .13 to a .16 range. The field test is designed to create "stressors" on the subject, essentially having them perform different tasks to gauge their performance.  If the subject is not moving or talking, they are not displaying signs of intoxication.  By performing several tasks, an officer can make an overall determination of whether they have probable cause to request a blood or breath test.  Bartenders, however, cannot request patrons to literally jump through hoops to purchase drinks.  They must rely on arms length observations.  As such, the agent here was creating signs which a bartender could not.  Secondly, the standard field test requires a number of separate tests, not just the eye Nystagmus.  The eye Nystagmus test  alone is NOT considered sufficient to establish probably cause for an intoxication test.  Thirdly, the agent was using the wrong legal standard.  Unlike DUI charges, which are established  solely by carefully administered blood alcohol tests, the standard for civil intoxication under the Connecticut Liquor Act is visible intoxication. Established Connecticut case law holds that simply establishing a BAC level does not create liability under the Dram Shop Act.  Coble vs. Maloney, 34 Conn. App. 655, 664. Thus, whether the patron was at a .08 is irrelevant to the civil determination of service to an intoxicated person.  Finally, the issue is not what the patron looked like after service, but at the time of service.  It is quite common for a patron to order a drink in a visibly sober state, and then become intoxicated after consumption and the alcohol enters the blood stream.  It can take as long as a half hour after consumption for the full effect of a drink to be felt.  The agent's conclusion that the permittee allowed intoxicated patrons to enter the premises is simply a conclusion, and an ill founded one at that.

The ultimate effect of this type of investigation is devastating to any on premise establishment.  Forget about stopping service, taking car keys, or providing patrons with a ride home.  As soon as any patron shows any subtle sign of intoxication, even signs that can't be seen without testing, the penalty is thousands of dollars and days of suspension.  Proper compliance would require that all patrons be weighed at the door, tested, and a drink limit assigned to assure that the BAC never reaches .08. Obviously, this is a standard which cannot be complied with.  More to come. 

Superior Court Split of Authority

Regarding The Viability of The Special Defenses of

"Participation"  & "Assumption of Risk" to

Dram Shop Actions (General Statutes  § 30-102)

The Connecticut Appellate Courts have not yet addressed the use of “assumption of the risk” and “participation” as special defenses to a Dram Shop action.  There is a split of authority among Superior Court decisions as to the validity of the aforementioned defenses in a cause of action based on the Dram Shop Act.

Exclusion Delusions

I met with an attorney recently who asked my advice on a liquor lawsuit he was bringing.  The claim involved a minor who drank at an establishment and was killed in a one-car accident after leaving a bar. Regardless of other issues, the primary defense raised by the insurer was that there was no coverage for liquor liability under the bar's insurance policy. The defense attorney quoted from the exclusions in the policy that there was no coverage for any liability resulting from the sale of alcohol; and indeed, that is what the exclusions quite plainly stated. The exclusions really couldn't have been more clear.  Under the standard language for a Commercial General Liability Policy, a "CGL" in insurance parlance, liquor coverage is excluded in every shape and form.

What the attorneys had missed, however, was that there were TWO policies issued to the bar:  a CGL policy for general liability such as fall downs; and a separate liquor liability policy which expressly covered all liability arising from the provision of alcohol.  Each of the exclusions which the insurance attorney cited were applicable only to the CGL policy, not the liquor policy. A plain reading of the actual policies established that the bar did, in fact, have $300,000 in liquor liability coverage which would be applicable to this loss.

Years ago, permit premises would buy what was called the "restaurant package" policy, which consisted of a CGL policy and a separate Dram Shop policy.  The CGL policy covered everything but excluded liquor, and the Dram Shop policy covered the liquor.  The two policies together covered all types of liability a bar or restaurant would face, effectively creating a seamless web of coverage.  As time passed, new causes of action emerged, and the Dram Shop policy was expanded to a liquor liability policy with broader coverage.  Sometimes one or both policies would exclude assaults, depending on the company.  In this case, the attorney for the insurer only read one policy and didn't understand the two-policy structure.  The moral of the story is that if your policy has a liquor liability coverage limit, which this policy had, you likely have the coverage regardless of what the CGL language says.  

Pending Liquor Law Changes

                There are several bills being considered by the Judiciary Committee which make significant changes in liquor law liability. I recently attended the public hearing on the bills listed below with Mr. Scott Wessing, National Claims Director for Insurance Indemnity of DC, one of the largest liquor liability insurance companies in Connecticut.  We had been invited to testify by Ms. Pat Shea of the Connecticut Restaurant Association. The bills we addressed are below.

 Raised Bill 490: An Act Concerning the Liability of Servers of Alcohol

                There are several interesting proposals in this bill.  First, the cap on dram claims would be reduced to $100,000 from $250,000 where the establishment makes a breathalyzer available to patrons.  The cap would be reduced to $50,000 where an establishment puts all of their liquor servers through a recognized training program such as TIPS or SMART.   I agreed with this change as it reduces liability for permit establishments.  Another proposal of the bill is to increase the statutory notice requirement from 120 days to 120 days AFTER the police report is issued.  I was against this change as most establishments have video or license scanning equipment which erases after 120 days.  All this does is make places easier to sue.

 Raised Bill 5536: An Act Concerning the Dram Act

                  Changes the Dram Act to require that the sale be made DIRECTLY by the seller to the intoxicated person.  This would remove liability under the Dram Act for situations where a person buys a tray of drinks for a table, a person gets drunk at a table who the bartender never sees, and an accident occurs.  I was in favor of it.

Raised Bill 5378: An Act Concerning the Tolling of Time Periods for Bringing a Dram Shop Action While Police Investigations are Pending

                      Pretty much the same thing as the notice section of Bill 490 above.  I was against it.

               The full language of each of the above bills can be downloaded from http://www.cga.ct.  At the top of the screen, you'll see a box that says "Bill."  Just type the ;number of the bill in the next box and search.  Double click on the blue"Raised Bill":under the Text bar, and there you are.  The bills are still in committee, but you might like to call your state senator and representative to give them your opinion.

            LIQUOR LIABILITY       MARCH 2010                                ISSUE XI

Employee Training

            I tried a lot of liquor liability cases over the past year.  While the cases involved everything from bar fights to auto accidents, the type of employee training and the content of employee manuals come up over and over again. The training generally comes up in two areas: safe alcohol service and security.  To the extent that I've lost cases, a significant factor in the juror's decision is the existence and level of training.  Jurors have told me post verdict that they didn't feel the bartender was experienced or that the bartender didn't know what to do when a patron started drinking heavily.  As DUI thresholds drop and alcohol related crashes make headlines, the average person begins to see alcohol as a danger and permittees as the purveyors of a dangerous commodity.  When I am able to present my client's employees as trained professionals acting in a responsible manner, the chances of a successful trial increase dramatically.

            Insofar as safe alcohol service, there are a variety of courses available: TIPS, TAM, SMART and a number of others.  I am most familiar with the TIPS and SMART programs as I have observed TIPS training and helped to develop the SMART program.  While the programs obviously teach methods of responsible service, their value at trial has little to do with the service itself.  First, the simple fact that the employees have been trained at all shows a responsible attitude on the part of the owner.  The certificates of completion make excellent exhibits to pass around the jury box.  Most importantly, a witness who has gone through training is able to articulate basic intoxication levels, signs of intoxication, and proper responses to intoxicated patrons.  One aspect of training which is often overlooked is that the owners must go through the training themselves.  While employees often testify, owners are always present at trial and must often testify themselves.  If they have no knowledge of the training at all, it's difficult to paint them as responsible sellers.  Each of the programs has a cost, but insurers such as IICDC and several wholesalers will often provide the training for free.

            Security training was almost nonexistent as recently as 5 years ago.  Indeed, I tried a case some years ago and successfully argued that there was no such thing as security training for bars. Things have changed.  Security training is available from a number of sources in Connecticut, and insurers such as Insurance Indemnity Corporation of DC actually provide it for free for their insureds.  I have attended several training programs and am frankly impressed with both the teachers and the programs.  Most recently I attended a program taught by Mr. Chance Meng of Las Vegas for the Post Road Entertainment Group (Black Bear, Hula Hanks).  While a lot of material was covered, the basic premise of the program is non violent patron control through verbal and physical techniques. If you've seen Road House with Patrick Swayze, you've seen non violent patron control in action. The days of the brawny bouncers stomping disgruntled patrons are gone.  Interestingly, the program encourages a "total premises" approach where the bar policy and dress code are tuned to crowd control and effective enforcement.  This may sound complicated, but the result is a clear, workable behavior policy which is easy to enforce and leaves little room for exceptions and guesswork.

             I suppose that if there is any single reason that all bartenders and security staff haven't had training, it's cost.  When I was first introduced to the TIPS program some 17 years ago, the training took two full days and cost several hundred dollars a person.  As stated above, however, many bartender and security programs are provided free by insurers and wholesalers. Even if there is a cost, insurers will often reduce premiums for trained  establishments.  Check with your agent.

        The 2010 Connecticut Liquor Statutes and Regulations Handbook is now available for ten dollars for all Connecticut Permittees.  The ten dollars is just for printing and shipping cost.  To obtain a copy, please call our office at 860.767.9044, or send an e-mail to monicastone@trendowskilaw.com.

Jury Rules that Security Acted Properly in
Escorting Unruly Patron from Pub

                On February 19, 2010, a Hartford jury upheld the actions of the security staff of the Pig's Eye Pub when they attempted to physically escort the Plaintiff, Thomas Marzano, from its premises.  This decision addresses a very important issue facing a lot of establishments and provides guidance on how security staff members should properly escort a patron out who does not want to leave.

         The incident in question took place on March 17, 2007.  The Plaintiff was having a heated argument with a female patron who was later discovered to be the Plaintiff's sister.  A security staff member testified that he asked them to calm down, and that they did, for a few minutes.  The Plaintiff and his sister deny that this first warning occurred.  The same staff member testified that approximately twenty minutes later he saw the Plaintiff choking his sister.  In response to this observation, the staff member immediately went over and told the Plaintiff he had to leave, wrapped his arms around the Plaintiff, and began walking him towards the front door.  The Plaintiff was struggling to get free and fell while he was being walked toward the front door. The Plaintiff and his sister both deny that the Plaintiff ever laid a hand on her that night.  The sister did admit that she jumped onto the back of the staff member escorting her brother to the door.  While she claims that she did this after her brother fell, three staff members testified that the Plaintiff was still standing just prior to the sister jumping onto the back of the security member.

The issue the jury had to decide was whether or not the security member had a reasonable belief that the female patron was in danger when he acted, and that there was an objective basis for the belief that the female patron (the Plaintiff's sister) was at risk of imminent physical harm. In reaching this conclusion in finding in favor of the Defendant establishment, the jury had to also conclude that the security member used only reasonable force to escort the Plaintiff towards the door.  In support of the reasonableness of the force utilized, and in addition to the above evidence, there was testimony that the security staff left the Plaintiff alone as soon as he fell and stopped being a security risk.  No appeal or post trial motions were filed in the case.

          In training security staff members, there are a few guidelines to make sure that each staff member knows.  First, there are only three circumstances in which a staff member is authorized to use physical force against another person.  These include the defense of himself/herself, the defense of a third person and the defense of the premises.  Second, in defending a person the staff member using the physical force must have a reasonable belief that the person he/she is defending is at risk of imminent physical harm.  The circumstances must also be such that a reasonable person looking at the same facts as the staff member would also conclude that the person was in danger of imminent physical harm.  Third, the force used by the staff member must be only that force that is reasonably necessary to protect the person in perceived imminent physical harm; i.e. the minimal amount of force that will prevent the harm.  Fourth, the same reasonable force restriction on the use of force applies to the defense of premises.  Finally, staff members can use physical force in defending the premises by removing a criminal trespasser.  A patron becomes a criminal trespasser once he is asked to leave by an employee with authority to do so and the patron fails to leave after being given a reasonable opportunity to do so.

           The plaintiff, Thomas Marzano, was represented by John Houlihan of Riscassi and Davis, and the Defendant, Pig's Eye Pub, was represented by Greg Allen of Trendowski & Allen, P.C.

LIQUOR LIABILITY            JANUARY 2010                                 ISSUE X

Email Extortion

                When the club owner opened the plain envelope and started reading, the letter seemed to be innocuous.  “Over the last two years alone, I have received at least 11 unsolicited email advertisements from your organization to my Yale University account.”  The letter then went on, however, to cite Connecticut General Statutes, Section 52-570c, which is an anti-spam statute providing damages of $500.00 per unsolicited email.  The letter then went on to demand a $4,500.00 “settlement,” or the writer would file suit and even try to organize others to sue the club. There were a number of other threats.  The multi-page letter ended with, “I am sure that your illicit electronic mail advertising campaigns have yielded you much greater profits than $4,500.00 through greater patronage.  Now is the time to give back some of those profits to me, an aggrieved party, and very reasonably hope that your legal conundrum will most likely blow over.  I hope you realize the gravity of this situation and make the prudent choice to settle this matter with me to make this all go away.”

                The club owner didn't settle.  The writer filed suit.  While the suit ultimately was resolved in the club owner’s favor, he had to retain an attorney and defend the matter. A successful defense is not, however, the point of the story.  When the letter writer appeared at court, he stated that he was amazed that the club owner had decided to fight because “all the other bars paid quite quickly and without any problem.”  This is the sad point of the story, that the creep who abused the legal system had played this extortion game with other places and succeeded.  For all I know, he’s still at it.  That is the point of this article. If you receive a similar letter in the mail, you should seriously consider fighting it, or at least calling the police or the attorney general.  If you would like a copy of the original letter and the subsequent lawsuit, just email a request to jantrendowski@trendowskilaw.com and I will send it to you.

The Resurrection of Negligent Service of Alcohol to an Adult

                In Piontkowski v. Agan, Judge Riley of  the Judicial District of  Windham held that a social host can be legally liable for the negligent service of alcohol to an adult.  The plaintiff alleged in his complaint within a premise liability count that the defendant, Kevin Agan, negligently furnished alcohol to his brother, Jason Agan, "whom he knew or should have known to have a propensity to become violent under the influence of alcohol" and whom assaulted the plaintiff.  The defendant moved to strike on the ground that Connecticut does not recognize a cause of action against a social host for negligent service of alcohol to an adult.  In the landmark case of Craig v. Driscoll, the Connecticut Supreme Court recognized a negligent service of alcohol cause of action, stating: "[I]t is now time to discontinue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor's negligence is otherwise established." The Connecticut General Assembly responded quickly, passing P.A. 2003, No. 03-91 to amend the Dram Shop Act to include the following: "Such injured [person] shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older."
              

              Now that the dust has settled, it appears that the trial courts are interpreting the amendment to apply only to alcohol retailers.  In Raymond v. Duffy, a 2005 decision of the Connecticut Superior Court, Judge Barbara Quinn wrote, "Unquestionably the Dram Shop Act, as amended by Public Act No. 03-91, legislatively overrules Craig as it applies to sellers of alcoholic beverages."  In all other respects, Craig is good law.  Following the reasoning of Raymond, the court holds that a social host, who also owns property, can be held liable for the negligent service of alcohol to an adult under the common law.  This case is notable because it seems to directly conflict with the Connecticut Appellate Court decision last month in Jordan Pike v. Blake Bugbee et al that social host liability only applies when alcohol is furnished to minors.  The current trend in the Superior Courts is also notable because it allows for lawsuits against private citizens who furnish alcohol as social hosts without the $250,000 cap on damages fixed by the Dram Shop Act.

                This case is important for at least two reasons. First, this cause of action must be kept in mind while considering apportionment complaints and the addition of other potential defendants to a case.  Second, this cause of action allows for an additional potential avenue for subrogation recovery.  Notably, most homeowner policies do not expressly exclude liquor-related claims and, as such, are generally denied to provide coverage.

LIQUOR LIABILITY       DECEMBER 2009                                ISSUE IX

                As I mentioned in the last issue, more suits are being filed claiming injuries from insufficient security.  Mr. Chris McGoey, a recognized expert in a variety of security areas, has kindly allowed me to reprint a few of  his excellent articles on security considerations for bars and nightclubs.  While the articles are not tuned to any particular jurisdiction, the points he makes are certainly valid.  For more information on Mr. McGoey’s publications and credentials, please visit his website at www.crimedoctor.com.

Nightclub & Bar Security

Bouncers Doormen Need Training

                Nightclub bouncers and doormen have been known to physically eject obnoxious patrons with such force that they have suffered serious injury or occasionally a death. It always makes me wonder what led up to this violence and if excessive force was necessary? As a general rule, a bouncer should never lay hands on a nightclub patron, except in a self-defense or arrest situation. If you think about it, what other business type has to use bouncers to bodily eject paying customers into the street?

Bouncers

                The industry term bouncer presents an image of someone who will physically break up fights and forcibly eject undesirable patrons. Bouncers are often portrayed in movies as tough, thug-like scrappers who love to fight, like in the movie "Road House". Many nightclubs foster that image by hiring over-sized, ex-jocks or body-builders to handle drunken or out of control patrons. Are big burly guys necessary to prevent violence in a nightclub? Many of these bouncers have little experience and receive no real training. In a crisis, inexperienced bouncers will be forced to rely on their own common sense and physical instincts to solve a problem. This is a scary concept.

                The duty of a bouncer is to monitor the crowd to see that everyone behaves and follows the house rules. The goal should be to see that everyone has a good time but within limits. The best bouncers are personable, friendly, and can talk to people without appearing threatening or intimidating. Not all bouncers should be male. The best bouncers don’t bounce anyone…they manage people. The mere presence of a well-trained bouncer should remind the patron that their conduct is being monitored. To be effective, a bouncer needs professional training on how to manage and control a packed house.  Bouncers must watch over the club so it does not get too intense, the crowd too large, and keep a sharp eye out for intoxicated patrons.  In a nightclub setting, the combination of too much alcohol, testosterone, and machismo can sometimes lead to physical fights over seemingly insignificant issues.

Job Requirements

                   The very nature of a bouncer’s job is to be confrontational and serious incidents can develop if mishandled.  Before being turned loose into a disagreement between customers, bouncers need to have had training and preferably prior experience.  When hiring a bouncer, you must look for someone with the proper attitude and demeanor.  You don't want someone who is hot-headed or likes to fight.

                 Thorough pre-employment screening is necessary to determine an applicant's suitability for the job.  For liability reasons, ex-felons should not be employed or anyone with a history of violence.  The physical aspect is only one attribute essential for the job. Bouncers need to learn how o approach people in a non-threatening and professional manner.  They need to earn about criminal and civil law applicable to use force against another and heir power to arrest.  Bouncers must also be taught about the limits of their authority and the amount of force that can be lawfully and safely applied.

                Because of my work as a consultant, I am aware of incidents where bouncers have severely injured ejected customers. I have heard many stories about fights where bouncers have pummeled a customer while in the process of ejecting them from the premises. There have been cases where intoxicated customers have been killed after being taken into custody by bouncers by either asphyxiation or by use of deadly force. This is not supposed to happen.

            There’s a common misconception that bouncers have authority to pick someone up and physically remove him or her from the premises for violating a club rule. It is believed that bouncers can use pain compliance holds, full-nelsons, choke holds, wrist locks, and arm bars to manhandle their patrons. This is generally not true. Simply stated bouncers cannot legally use force against a patron being escorted out unless they are taking someone into custody for a crime or in self-defense. When force is used it must be reasonable depending on the circumstances. Ordinarily, that means no tackling, no punching, no kicking, no choking, no head butts, no piling on top, no hog-ties, and no pain compliance holds unless in self defense.

                The authority of a bouncer, in most cases, is the same as any ordinary citizen. Bouncers have no special authority to physically eject a customer who merely becomes intoxicated or verbally obnoxious. As an employee of the nightclub, bouncers can only demand that the undesirable customer leave. If the customer refuses to leave your only legal recourse is to call the police. Sometimes a warning that the police will be called has the same effect causing the customer to depart. The police can remove an unwanted patron and issue a formal trespass warning not to return. In a few states, bouncers may legally use minimal force to remove a trespasser after being duly warned. If the customer returns after receiving this formal warning they are subject to arrest.

Deadly Restraints

                A common liability issue involving bouncers has been the use of restraints and control holds to remove or subdue a patron. Bouncers have used various forms of headlocks and choke holds on disruptive customers and caused serious head and neck injuries, asphyxiation, and even death. Handcuffs have been inappropriately applied and in doing so caused broken arms, dislocated shoulders, and have cut off circulation to hands causing permanent damage.

                Nightclub patrons have died from positional asphyxiation after being handcuffed from behind and then laid face down on the floor or from other bouncers piling on top. You can't breathe very well in that position especially if the victim is overweight. In most cases the offending bouncers were discovered to have no formal training or experience using handcuffs or control holds and weren’t told about positional asphyxiation. Watching the Worldwide Wrestling Federation or Extreme Fighting on TV is not considered proper training in use of force for nightclub bouncers or security personnel.

What’s Needed?

               The nightclub and bar industry needs to address these important security issues in their trade journal publications and at trade show seminars. Bouncers and door hosts need to be screened to weed out unsuitable applicants like violent felons. Real training should be provided to all those responsible for crowd control. Bouncers should have at least basic training in laws of arrest, verbal judo, first-aid, and even CPR if they are responsible for monitoring patron conduct and physically ejecting or arresting those who become obnoxious. Popular nightclubs should consider hiring off-duty police officers to work outside the front door to support the bouncers and act as a deterrent. Bouncers should be required to complete written reports and logs of activity where the police were called or a customer was contacted and asked to leave. These reports should be reviewed daily by club management and filed for future use in case a lawsuit is filed against the club.

                Bouncers are most visible aspect of security in a nightclub or bar is the often the huge guys working in a club. The proper application of bouncers and doormen as part of a nightclub and bar security plan are important. Inadequate security procedures could contribute to the Death of a Nightclub.

Doormen

                The doorman or door-host is the first person the patron sees and sets the tone for the style and attitude of the club. Some clubs employ burly-looking guys who set the tone of the "Barbary Coast" days in San Francisco where bothersome patrons would be forcibly thrown out into the street. Other clubs use well-dressed ladies and gentlemen to make patrons feel like they have entered a nightclub with dignity and class.

                The true function of a doorman is to provide access control for a busy nightclub and screen those that enter. A doorman is traditionally the person who stands at the door and checks IDs to assure that each patron is of age to legally enter the establishment and is dressed appropriately. In some urban clubs, doormen use metal detectors and pat downs procedures where the format attracts mostly young people and has an expectation of finding weapons. Another function of a doorman is to prevent admittance to those that are obviously intoxicated or who have previously caused trouble inside the club. Most clubs have an "86" policy where objectionable patrons are barred from returning to the club for some designated period of time. Depending on the club, a doorman can be used to collect cover charges, tickets, or direct patrons to tables.

                In addition to normal doorman duties, some nightclubs use the door staff to monitor patron conduct on the sidewalk as well as inside the club. The nature of this additional task can lead to confrontations with aggressive nightclub patrons if not handled professionally. Obviously, more training and experience is required as the doorman becomes more assertive and begins to assume more security-like duties. Most busy nightclubs begin to have problems at the door when too many duties are heaped on to an inexperienced and poorly trained doorman.

Bouncers

                Bouncers are an enigma. The term bouncer presents an image of a brawler who will break up fights and forcibly eject obnoxious patrons. Bouncers are often portrayed in movies as tough, thug-like scrappers who love to fight, like in the movie “Road House”. Many nightclubs foster that image by hiring over-sized ex-jocks, wrestlers, or martial artists to handle drunken or out of control patrons. Usually these bouncers have little experience and receive no real formal training in criminal or civil law that they must apply. See my web page Bouncers Need Training.  In a crisis, these inexperienced bouncers will be forced to rely on their own common sense and instincts to solve a problem. This can be a scary concept.

                The duty of a bouncer is to monitor the crowd to see that everyone behaves. The goal should be to see that everyone has a good time, but within established limits. The best bouncers are personable, friendly and can talk to patrons without appearing threatening or intimidating. The best bouncers don’t bounce anyone…they talk to people. The mere presence of a well-trained bouncer will remind the patron that their conduct is being scrutinized and that their patronage can be revoked.

Floor Men

                A better job title for a bouncer might be floor man or floor person. In the UK you often hear the titles of Head Doorman or Cooler. A nightclub is about the business of providing hospitality where people can come to relax, unwind, and have a good time. A good floor man will manage the patrons inside a club and will see to it that no one becomes overly aggressive and spoils the party. A well-trained floor man will circulate throughout the club, be highly visible, and be easily identifiable as a club employee. The floor man should continually evaluate the conduct and attitudes of each patron and watch for changes behavior. Let’s face it, drinking alcohol in a nightclub setting is designed to remove inhibitions and subtle behavior changes are expected. A floor man's job is to recognize the negative behavior changes and begin to manage the patron. Good floor men will use eye contact and body language to let troublesome patrons know that their conduct is reaching the threshold for unacceptable behavior.

Rule Enforcement

                It is up to the nightclub to set conduct limits and then require the floor man to evenly and fairly enforce those rules. The best run clubs enforce rules and do so immediately. A well-timed and discreet comment from the floor man about offensive language or noise level is all that is necessary, in most cases, to resolve objectionable behavior. Sometimes, second reminders are necessary followed by warnings that further conduct will result in being asked to leave the premises. Any patron who aggressively rejects a reasonable request to behave should be asked to leave. Remember though that rule violations are not the same as crimes. You can’t manhandle patrons or physically take someone into custody for violating a club rule.

                The biggest mistake a floor man can make is to ignore a patron who has become a nuisance and hope that they will either calm down or leave on their own. The worst case scenario can occur when another patron is forced to confront an overly aggressive customer on their own because the floor man was oblivious to the situation. Ultimately, the situation becomes explosive, a fight breaks out, and the floor men are forced to physically separate and eject the brawlers. This is not only bad business, but can become dangerous for everyone involved.

Patron Ejection

               Having to eject a patron from a nightclub doesn't always mean that the floor man did not manage them properly earlier in the evening.   Sometimes people come into a nightclub just looking for trouble, or can’t handle alcohol, or can’t interact socially with others. Sometimes, patrons bring their outside anger inside the club and no one knows about it until violence erupts.  These people need to be asked to leave the club by the floor man as soon as their hostile conduct becomes evident.

                No one likes to be asked or told to leave an establishment, especially if they paid a cover charge to get in. If a floor man has reminded the guest several times about their conduct then it will come as no surprise when finally asked to leave. If the patron is taken aside and discreetly told about the decision, the likelihood of an aggressive exchange is reduced. There is nothing worse than having a big bouncer-type approach a young man, in front of his friends, and tell him to leave. After embarrassing this young man, you are guaranteed to get a verbal barrage of insults and foul language that may escalate into a physical fight.

                If it becomes necessary to escort an aggressive patron to the door, floor men should be well trained to do so. For safety purposes, a rule of thumb is to have at least one more floor man present than the number of people being escorted out. Unless a patron has committed a crime, floor men are generally not allowed to use physical force. This is not to say that you cannot slightly touch a patron to guide, direct, or block re-entry. Force should only be used in self-defense or for the purpose of detaining a criminal for the police. Punching, kicking, tackling, dragging, or putting someone in a choke hold are all inappropriate methods for floor men to remove someone from a nightclub. Unlike the movie "Road House" it is never appropriate for a floor man to punch a patron out of anger or because of a challenge to fight.

                Escorting a patron out of a nightclub involves the use of professional verbal commands and a polite explanation of why they are being asked to leave. If a patron has been dutifully warned previously, then it will be of no surprise. If the conduct of the patron was obviously inappropriate, then likewise it should be clear why they are being escorted out. If the patron has been over-served and is intoxicated the ejection request may be more difficult.

                If a floor man is expected to consistently enforce the rules, there can be only two ejection choices for the patron. Either leave the premises quickly and quietly or be arrested by the police. Once a patron has been asked to leave by the proprietor, they become subject to trespass laws if they fail to leave. In some states, trespassers can be removed from the premises using minimal holding force. Typically this involves one bouncer holding each arm while leading the trespasser from the club. Floor men must be prepared to take a little verbal abuse if a patron is asked to leave. Likewise, floor men should consider a refund of the cover charge, if any, for ejected patrons to remove that point of contention. If the patron becomes combative they may become subject to assault and battery charges and it goes downhill from there.

                The floor man should be certain that the ejected patron understands that they must leave the premises immediately or be subject to arrest by the police. If the ejected patron attacks a floor man, reasonable force can be used in self-defense. Reasonable force can also be used to take an assailant in to custody for the police. If you do this, it is important to actually file criminal charges or risk for false imprisonment lawsuit. Under no circumstances should excessive force be used. (See my web page on Use of Force Continuum for more details on use of force). Headlocks and pain compliance techniques (i.e. arm twisting, wrist locks) are not appropriate ways of escorting a rule-violator from a club.  Choke holds and sleeper holds should never be used except in life threatening scenarios. Floor men should also use care when taking a patron down to the floor, handcuffing, and piling on top. Intoxicated or overweight persons have died from positional asphyxiation from too much body weight pressing them to the floor.

Customer Fights

                If two or more customers mutually get into a fistfight, they must be removed from the club immediately for everyone’s safety. The question is how to do it safely? The old fashioned method was to throw both parties out into the street and let them duke-it-out for themselves is wrong. The correct method is to delay the ejection of the more passive offender, if possible, until the more aggressive co-combatant has completely vacated the property. The reason for this is that it is foreseeable that two people who were engaged in a fight inside will continue the assault outside. The nightclub floor men have no legal basis for detaining someone unless a crime has been committed and cannot hold someone who wishes to leave voluntarily and continue to fight. However, the floor men has a duty to be reasonable and see that known offenders have left the property and to call the police if they know a fight is about to occur or if one combatant requests it.

The articles above are printed as written by Chris E. McGoey and reprinted from

www.crimedoctor.com with permission.

GENERAL LIABILITY                 MARCH 2010                           ISSUE XII

Defendant Allowed to Bring Third-Party Apportionment Claim
Against Plaintiff's UIM Insurer Under Certain Conditions

               The Hon. Terence Zemetis recently held in Kimberly Wheeler et al v. Eileen Wojtowicz, Conn. L. Rptr. No. 16, 578 (January 11, 2010), that a defendant in a motor vehicle accident case may bring a third-party apportionment claim against the Plaintiff’s UIM insurer based on the alleged negligence of an unidentified third motorist, provided that the plaintiff has asserted a direct UIM claim against the insurer prior to the scheduling of oral argument of the insurer’s motion to strike.

              The above case involved a motor vehicle accident allegedly caused in part by debris on the road that had fallen from an unidentified vehicle. The defendant, Wojtowicz, properly served an apportionment complaint against the plaintiff’s insurer, GEICO, for the imputed negligence of the unidentified tortfeasor pursuant to the plaintiff’s UIM coverage.  Shortly thereafter, the plaintiff moved to amend her complaint to include a claim against GEICO, which had already appeared and moved to strike the apportionment complaint. GEICO argued that the apportionment statute is limited to “persons,” and that insurers cannot be added under the statute.

The Connecticut Supreme Court has previously affirmed a trial court’s decision to strike an apportionment complaint against a “John Doe” unidentified hit and run driver, recognizing that “there has to be an identifiable person upon whom to serve a complaint.”  Eskin v. Castiglia, 253 Conn. 516 (2000).   However, in Collins v. Colonial Penn, 257 Conn. 718 (2001), the Supreme Court required the trial court on remand to instruct the jury on apportionment after the plaintiff’s UIM carrier had settled with the plaintiff during trial.  In Collins, the plaintiff sued his UIM carrier because the defendant claimed that his car was rear-ended by an unidentified driver, which caused his vehicle to be propelled into the plaintiff’s vehicle.  The Court held that because the UIM carrier was an original defendant in the case, “the obstacle of [the apportionment statute was] not present.”  The Court noted in Collins that it was significant that the plaintiff could recover against a UIM carrier as a surrogate for the unidentified driver, unlike in Eskin, where the apportionment complaint was brought against an unidentified person.

              Likewise, Judge Zemetis held in Wheeler that the obstacle of the apportionment statute was not present, as it was in Eskin, since the plaintiff had moved to amend her complaint to include her UIM carrier after the Defendant’s filing of the apportionment complaint.  Unfortunately, for defendants, this case provides plaintiffs with “gatekeeper” ability in regard to apportionment in similar circumstances.  However, once the plaintiff brings a direct action against her UIM carrier, the two cases may then be eligible for consolidation.   

GENERAL LIABILITY              JANUARY 2010                                       ISSUE XI

Supreme Court Affirms Defense of Superseding Cause for
 Intentional and Criminal Third Party Acts

               In the recently decided Supreme Court case of of Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150 (2009), the Court reviewed the doctrine of superseding cause.  The plaintiff’s decedent was shot and killed by a third party at the defendant’s train station.  The plaintiff alleged that the decedent’s death was a result of the defendant’s failure to provide adequate security.  The defendant successfully defended the claim, arguing that the decedent’s death was the result of the intentional and criminal acts of a third party that superseded any negligence on its part.  The plaintiff appealed, arguing that the doctrine of superseding cause had been abandoned by the Supreme Court.

                The 2003 decision in Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003) held that the doctrine of superseding cause was to be abandoned in favor of a proximate cause analysis in negligence claims.  The doctrine of superseding cause previously relieved a tortfeasor of liability for injuries inflicted by the unforeseeable act of another tortfeasor.  The plaintiff argued that the decision to abandon the doctrine of superseding cause was to be or should be applied in all civil cases.  The Supreme Court disagreed with the plaintiff’s argument, noting that the 2003 decision explicitly limited the abolishment of the doctrine to subsequent negligent acts and made clear that the holding did not “necessarily affect those cases where the defendant claims an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortuous conduct.”  Consequently, this case reaffirms that defendants are entitled to a jury instruction that the jury should consider whether criminal conduct of a third party was the superseding cause of the plaintiff’s injuries, relieving the defendant of liability to the plaintiff.

GENERAL LIABILITY            OCTOBER 2009                               ISSUE X

Mandatory Pre-Suit Disclosure of Policy Limits

                October 1, 2009 is the date when many new laws becomes effective.  Public Act 09-240 was recently passed by the General Assembly and becomes law Today.  In the past, claims representatives had discretion as to whether or not they disclosed their policy limits to a claimant or a plaintiff's attorney prior to suit being filed and a formal discovery request being issued in that suit.  Public Act 09-240will change this.

                Claims representatives will now only have thirty (30) days in which to disclose the limits of their applicable policy or policies after receiving a request from the claimant or his/her attorney.  The request must be from a person alleging a death or bodily injury as a result of a motor vehicle collision involving a person covered by the insurer's private passenger automobile policy.  It must be sent to the insurance adjuster or insurance company at its last known principal place of business via certified mail.  The request must include a letter from a Connecticut licensed attorney or an affidavit from the person alleging the injuries and must include the following information:

1.  his or her juris number (if an attorney);

2.  the type of claim alleged against the insured;

3.  the date and approximate time the alleged incident occurred;

4.  a description of the injuries the insured is alleged to have caused;

5.  a copy of the person's medical bills and treatment records for the injuries; and

6.  a copy of the accident report of the collision that allegedly caused the person's injury or death, if available.

                The policy disclosure from the claims representative or insurance company must be in writing and sent out within 30 days of the request.  It must also include all the coverage the insurer provides to the insured, including any applicable umbrella or excess liability insurance.

      REAL ESTATE            DECEMBER 2009         SPECIAL EDITION

                On December 4, 2009, we learned fromCATIC that the Federal Deposit Insurance Corporation (FDIC) has issued a press release announcing the failure of AmTrust Bank and the assumption of all its deposits by New York Community Bank, Westbury, New York.  New York Community Bank also purchased approximately $9 billion in assets of AmTrust, with the FDIC retaining the remainder of the failed institution's assets for later disposition.

                The FDIC has established a number of websites to assist consumers who have questions about their financial dealings with AmTrust, including General Information about the bank's failure and a Question and Answer Guide.

                Most loans have been assumed by New York Community Bank. However, all nonperforming single family residential loans, acquisition development and construction loans, and land loans are currently owned by the FDIC and are being serviced by all of the same personnel with whom borrowers have worked in the past. All prior contacts remain the same for all loans.

                All lines of credit, including Home Equity Lines of Credit (HELOCs), that were nonperforming or past due have been retained by the FDIC and these accounts have been suspended at this time. All performing HELOCs were purchased by New York Community Bank. These customers should contact New York Community Bank at any former AmTrust Bank office if they have a question about their line of credit or HELOC.

                The FDIC has indicated that all foreclosures on AmTrust loans will be temporarily suspended in order to properly evaluate the loans and the borrowers' ability to repay.

                Loans retained by the FDIC are currently being reviewed independently to determine the best action for each individual loan.  Loans may be sold at a future date. If that occurs, the borrowers will be notified in advance through written correspondence. If a borrower is concerned about whom the future lender or servicer may be, borrowers have the right to independently refinance your loan with another lender.

                Borrowers or Brokers with loans currently being processed are advised to contact AmTrust immediately to determine the status of these applications.

Information and Articles provided by CATIC were utilized in creating this newsletter.

REAL ESTATE                              AUGUST 2009                         ISSUE VIII

Mandatory Foreclosure Mediation is Here

                The Connecticut General Assembly passed Senate Bill 911, which calls for mandatory foreclosure mediation.  Governor Rell has signed this legislation and it is being implemented already. The act required the Chief Court Administrator to establish mediation programs in each judicial district by July 1, 2009. Mandatory mediation will be available to all owners of one to four family residential properties. Under the act, if a lender commences a foreclosure on a borrower after July 1, 2009, the lender must give notice of the foreclosure mediation program by attaching to the front of the complaint a notice of the programs availability coupled with a foreclosure mediation request form. Borrowers can then request mediation by submitting the form to the court and filing an appearance within 15 days of the return date. If a mediation is requested, a court will not be able to enter a judgment of foreclosure.  Judgment may also not enter until after the period for requesting a mediation has expired.  Borrowers should also be very aware of the deadlines in this bill.  The mediation is only mandatory if the borrower requests it within the proper time period.

                Prior to the new bill, a voluntary mediation program proved to be a huge success. Seven out of every ten foreclosures that participated in the voluntary program were settled. The Connecticut Legislature hopes to continue this success by requiring a mandatory notice of the defendant's right to mediation. Any potential buyers should be aware of any pending mediations if they are interested in acquiring a property that is in foreclosure.

New Truth-in-Lending Rules Effective July 30, 2009

                The Mortgage Disclosure Improvement Act (MDIA) has amended the Truth-in-Lending Act (15 USC 1601) effective July 30, 2009.  The principal objective of these Regulation Z amendments is to enable consumers to know, prior to closing, what their closing fees and charges will be. In too many cases in the past, mortgage lenders did not know the exact dollar amounts for the fees and charges borrowers were required to pay at closing, until shortly before the closing. In some instances consumers did not find out what they actually had to pay for certain fees until they appeared at the closing. This situation has proven problematic for creditors and consumers alike. The new disclosure model is intended to address this problem by avoiding "last-minute" fee issues.

Lender Requirements

                MDIA requires creditors to provide "early disclosures" to consumers within three business days after receiving an application for a mortgage loan and before any fees, other than a reasonable fee for a consumer credit report, are collected from the consumer. This "early disclosure" requirement applies not only to loans secured by principal dwellings but also to loans on other one-to-four family properties, such as "second homes."

                Once the early disclosure has been provided, the creditor must wait seven business days before closing the loan. If a change occurs that makes the annual percentage rate (APR) in the early disclosure inaccurate beyond a specified tolerance, creditors must provide new disclosures with a revised APR and wait an additional three business days before closing the loan.

Practical Implications:

 Anticipated Changes in Closing Procedures and Practice

Timely Pre-Closing Disclosures.  The rule changes should help consumers by requiring lenders to provide "final" disclosures at least 3 days before the closing.

Postponed Closings, Higher Initial Disclosed Costs, or Escrow Closings.  In those cases, however, where creditors cannot provide accurate disclosures in advance of the originally scheduled closing date, closings may have to be rescheduled. Alternatively, some creditors might disclose higher than anticipated fee amounts in their initial disclosures, in order to avoid the need for re-disclosure. Other creditors may consider the use of "escrow-style closings" (common in many western states), where the parties execute and place documents in escrow pending satisfaction of all of the closing conditions.

Changes to Loan Application, Rate Lock, and Commitment Processes.  The new rules may also impact how creditors initially accept a loan application, when and how creditors lock an applicant's interest rate and points (and collect a fee for a "rate lock"), or when they extend the deadline of a rate lock agreement or a mortgage loan commitment.

Closings on Short Notice.  The new disclosure rules may also affect closings that historically have taken place on short notice, such as loan modifications and private banking loans. In the past, loan terms for these transactions might be negotiated up until closing. The impact of the new rules on such transactions is not yet clear.

New Disclosure - No Consumer Requirement to Complete the Agreement. The new rule also requires that creditors include in the initial disclosure statement and in any corrected disclosure statement the following statement:

"You are not required to complete this agreement merely because you have received these disclosures or signed a loan application."

Timeshare Loans.  Creditors who make loans to finance an interest in a timeshare plan must provide the initial disclosures by the earlier of (1) consummation or (2) three business days after receipt of the consumer's application. If the initial disclosures become inaccurate before consummation, the creditor must provide revised disclosures prior to consummation (as opposed to three business days in advance).

Right of Consumer to Expedite Consummation.  Despite 7-Day and 3-Day Rules. Under the new rule, consumers can expedite consummation of the loan to meet a bona fide personal financial emergency.

With regard to the defendants’ special defenses asserting “participation,” the defendants argued that the plaintiff-passenger supplied alcohol to the alleged intoxicated driver, consumed alcoholic beverages with him, and thus participated in the alleged intoxication of the driver.  In concluding that the defense of participation was sufficient, as alleged, the court noted: A “narrow defense that permits a comparison between the plaintiff’s conduct in contributing to the intoxication of the tortfeasor with the purveyor’s conduct in violating the statute does not appear to be inconsistent with the punitive and remedial purposes of the dram shop act.”  The court concluded that “it makes sense that one whose actions made the violation of the act possible by himself giving the intoxicated person liquor . . . may potentially have some responsibility, along with the liquor seller, for any injury he later incurs as a result of the conduct of the intoxicated person.  The court further noted that “it is consistent with the remedial and punitive purposes of the dram shop act because it does not fully relieve the liquor seller of responsibility.”  The court, however, cautioned that “participation in this sense requires that the plaintiff actively procure or cause the tortfeasor’s intoxication; that is, the plaintiff cannot merely participate in the drinking activities but must be actively involved in bringing about the inebriate’s intoxication.”

 (III) 

Decision Holding that “Assumption of Risk” Is Not a Viable Defense to a Statutory

Dram Shop Claim, But “Participation” is a Viable Defense to a Statutory Dram Shop

Claim If the Plaintiff Actively Procures or Causes the Tortfeasor’s Intoxication:

Rivera v. Miceli, Superior Court, Judicial District of Middlesex, Docket No. CV04 0104721 (April 15, 2005, Silbert, J.) (39 Conn. L. Rptr. 151).

Those decisions that have not permitted the use of these defenses have reasoned that the protection of the Actis not limited to innocent third parties, but is instead intended to protect the public at large.

 (II)

Decisions Holding that “Participation” and “Assumption of Risk” Are Not Viable Defenses to a Statutory Dram Shop Claim:

              Decision concerning a motion to strike.  With regard to the special defense alleging "participation," the court stated that it was persuaded by the line of cases recognizing such defense in dram shop cases; citing Breen v. Brother Bones Cafe, Inc., Superior Court, Judicial District of Hartford, Docket No. CV 93 0523016 (October 14, 1994, Corradino, J.).  Likewise, with regard to the special defense alleging "assumption of risk," the court found the line of cases following Breen persuasive, specifically noting that it was the estate of the intoxicated person, as opposed to an innocent third party, making the initial claims.  Accordingly, the court denied the motion to strike the aforementioned defenses.

             Anyone who has litigated enough civil cases has been in the following situation at least once.  Settlement talks are reaching a standstill.  Plaintiff's counsel has no doubt in her mind that her client's case is worth at least the policy limit available to indemnify the defendant.  But, the defendant's insurance carrier is not willing to offer the policy limit and settle the case.  As the settlement conference breaks down, Plaintiff's counsel informs defense counsel that she feels his client's carrier's failure to settle the case amounts to bad faith.  This exchange then leads to a discussion between both counsel and their clients, and likely a discussion between defense counsel and his client's insurer. 

            The issue facing civil litigators is not whether Connecticut recognizes a duty of dealing in good faith in insurance contracts, but rather how the courts define what constitutes bad faith on the part of an insurer when it fails to settle a claim.  In Imperial Cas. & Indem. Co. v. ITT Hartford Ins. Group Foundation, Inc., 1997 WL 53320 (Conn. Super. Ct. January 31, 1997), the Connecticut Superior Court explained that “bad faith is not simply bad judgment or negligence, but rather . . . implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.  [I]t contemplates a state of mind affirmatively operating with furtive design or ill will.”  Id. at *2.  A plaintiff cannot merely allege that the insurer denied his or her claim.  Id.  There must be evidence of a dishonest motive or intent.

            The United States District Court for the District of Connecticut later summarized Connecticut’s approach to bad-faith insurer claims in Altice v. Nationwide Mut. Ins. Co., 2009 WL 1474953, *2 (D. Conn. May 27, 2009).  In order to state a claim for bad faith, a plaintiff must show (1) that the plaintiff and defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; (2) that the defendant engaged in conduct that injured the plaintiff’s right to receive some or all of those benefits; and (3) that when engaging in that conduct, the defendant was acting in bad faith.  Id.  The court then elaborated on the definition of bad faith given in Imperial Cas. & Indemn. Co.: “bad faith is defined as the opposite of good faith, generally implying a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties.”  Id.

            In adopting this definition of bad faith, Connecticut aligned itself with a minority of jurisdictions which hold that bad faith requires a showing of an intentional or reckless failure to carry out an insurance contract.  In these jurisdictions, bad faith is absent when (1) an insurer fails to settle because it reasonably concluded that there was no coverage, Gordon v. Nationwide Mut. Ins. Co., 285 N.E.2d 849 (N.Y. 1972); (2) an insurer entertained a bona fide belief that an action might be defeated or the verdict kept within policy limits, Hart v. Republic Mut. Ins. Co., 87 N.E.2d 347 (Ohio 1949); (3) an insurer relies on an opinion of counsel as to the possibility and amount of an adverse judgment, Gordon, supra.  Gordon exemplifies the minority rule.  In Gordon, the New York Court of Appeals  required an “extraordinary showing of a disingenuous or dishonest failure to carry out a contract” in order to impose a punitive measure of damages—the amount of an excess judgment entered against the insured over his policy limits—on an insurer for bad-faith breach of contract.  Gordon, 285 N.E.2d at 854.  The Connecticut Superior Court has also held that although Connecticut recognizes a common-law duty of an insurer to act in good faith in the settlement of the claims of its insured, a cause of action for breach of that duty may be asserted only against an insurer.  Scribner v. AIU Ins. Co.,  43 Conn. Supp. 147, 151-152 (1994).  An action for bad faith cannot lie against a person not a party to the insurance contract, including the attorney hired by the carrier to defend the insured.  Id. At 152.

            It is important that counsel recognize the distinction between Connecticut's definition of bad faith and how the majority of other jurisdictions treat a bad faith claim for a failure to settle a suit.  Unlike Connecticut, the majority of jurisdictions hold that an insurance company acts in bad faith whenever it breaches its duty to settle by failing adequately to consider the interest of the insured.  These jurisdictions have essentially established a negligence standard.  Transport Ins. Co., Inc. v. Post Exp. Co., Inc., 138 F.3d 1189 (7th Cir. 1998) (Illinois law).

            There is one federal case that has sometimes been cited for the proposition that Connecticut has adopted the negligence standard.  Bourget v. Government Emp. Ins. Co., 456 F.2d 282 (2nd Cir. 1972) (Connecticut law).  In Bourget, the Second Circuit acknowledged that there was a basis for the judicial imposition of liability on insurers which fail to exercise good faith or due care with respect to opportunities to settle within policy limits.  Id. at 285.  However, the court asserted that in “the unusual circumstances of this case,” such a duty did not exist.  Id..  Plaintiff Gerald Bourget was injured in an automobile accident in which there was no question that the defendant’s insured was at fault.  Id.  The defendant’s insured died as a result of the accident and was left insolvent.  Id.  The court reasoned that because Thompson’s death and insolvency meant that he was essentially judgment-proof, there was thus no possible conflict of interest between the insurer and the insured.  Id. at 286.  The court then held that there was no basis for imposing a duty on the insurer as a matter of common law.  Id.  Given subsequent decisions, discussed above, and the holding in Bourget, it is not accurate to cite this case for the proposition that Connecticut has adopted the negligence standard.

            Since deciding the Gordon case, New York has since moved to a middle ground between the minority and majority jurisdiction.  While not expressly overruling Gordon, the New York Court of Appeals did set a new standard in Pavia v. State Farm Mut. Auto. Ins. Co., 626 N.E.2d 24 (N.Y. 1993).  The Pavia court adopted the “gross disregard” standard: an insurer’s deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer.  Id. at 27.  The court reasoned that the gross disregard standard “struck a fair balance” between ordinary negligence and dishonest motive.  Id. at 28.  Requiring ordinary negligence would remove the freedom insurers must have to investigate and resist unfounded claims, while requiring a dishonest motive would essentially insulate insurance carriers from all but malicious conduct.  Id.

           Connecticut has not adopted the middle-ground holding in Pavia.  Connecticut continues to follow the minority rule requiring a showing of a conscious doing of a wrong because of dishonest purpose or moral obliquity or ill will.  In order to prevail in a bad faith claim in Connecticut for a failure to settle a disputed claim, a Plaintiff cannot merely allege that the insurer failed to settle his or her claim even though there was a good chance the Plaintiff could obtain a verdict in excess of the defendant's insurance policy.  The Plaintiff must allege and present evidence of a dishonest motive or intent on behalf of the Defendant's insurance carrier.  This essentially means that each counsel faced with this scenario will have to make an objective detailed review of the specific facts of the case using this case law as a yardstick.