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2 , 0 0 Conn. App. 1

Orlando v. Liburd

ROCCO ORLANDO v. ERNEST LIBURD

(AC 46295)

Alvord, Suarez and Westbrook, Js.

Syllabus

The plaintiff, O, sought to recover damages from the defendant, L, arising

out of a motor vehicle accident. At the time of the accident, O was

insured by N Co., and N Co. paid to repair the damage to O’s vehicle

that resulted from the accident. In O’s action against L, O sought damages

for, inter alia, the diminished value of his vehicle. L moved to implead

N Co. as a third-party defendant and filed a third-party complaint against

N Co., alleging that his insurer had tendered his full policy limit to N

Co. O filed an amended complaint that purported to assert apportionment claims against N Co. The court granted N Co.’s motion for a

judgment of nonsuit against L. Less than four months before jury selection was scheduled, O requested leave to amend his complaint, which

the court denied. Subsequently, the court granted N Co.’s motion to

strike counts of the operative complaint, including a count sounding in

unjust enrichment. On O’s appeal to this court, held:

1. O could not prevail on his claim that the trial court improperly denied

his request for leave to amend his complaint, O having failed to demonstrate that the court abused its discretion in denying his request: the

court’s denial did not prevent O from curing alleged pleading deficiencies

with respect to the counts initially pleaded because O had the opportunity to cure such deficiencies when he filed a third amended complaint

two months later; moreover, although O could not properly assert the

additional causes of action in the subsequent amended complaints he

filed, the court found that he had had an opportunity to assert those

causes of action in prior requests to amend the complaint and failed to

do so; furthermore, the court also found that permitting the proposed

amendment would considerably delay the proceedings in light of the

upcoming trial date, despite the fact that the parties were still in the

pleading stage of litigation.

2. O could not prevail on his claim that the trial court improperly dismissed

his unjust enrichment count against N Co. for lack of subject matter

jurisdiction:

a. O’s unjust enrichment claim against N Co. was not ripe for adjudication

as it was contingent on whether and to what extent O could recover

against L as well as whether L would be able to satisfy the hypothetical

judgment; moreover, because O’s claim against L has yet to be adjudicated and liability, if any, for the alleged loss determined, and there was

no allegation that L was insolvent, it was impossible to ascertain whether

O would sustain any compensatory injury as a result of N Co.’s alleged

misconduct.
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Orlando v. Liburd

b. The trial court properly decided the issue of subject matter jurisdiction

on the basis of the operative complaint alone and did not improperly

fail to consider evidence O presented regarding ripeness: O’s proffered

exhibits were copies of emails unaccompanied by any affidavit or other

undisputed evidence as required by the applicable rule of practice (§ 10-

31); moreover, even considering O’s exhibits, they were not sufficient

to render his claim against N Co. ripe for adjudication, as O’s claim

against N Co. was wholly contingent on O obtaining a judgment against

L and L being unable to satisfy the hypothetical judgment.

Argued May 29—officially released September 10, 2024

Procedural History

Action to recover damages for the defendant’s alleged

negligence, and for other relief, brought to the Superior

Court in the judicial district of Hartford, where the

court, Cobb, J., granted the defendant’s motion to

implead Nationwide Mutual Insurance Company as a

third-party defendant; thereafter, the named defendant

filed a third-party complaint against Nationwide Mutual

Insurance Company; subsequently, the plaintiff filed an

amended complaint; thereafter, the court, Rosen, J.,

granted the third-party defendant’s motion for nonsuit

against the named defendant and rendered judgment

thereon; subsequently, the court, Rosen, J., denied the

plaintiff’s request to file an amended complaint; thereafter, the court, Rosen, J., granted the third-party defendant’s motion to strike; subsequently, the plaintiff filed

an amended complaint; thereafter, the court, Sicilian,

J., granted the third-party defendant’s motion to strike

and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

Matthew J. Forrest, with whom, on the brief, was

James R. Brakebill, for the appellant (plaintiff).

Andrew P. Barsom, with whom, on the brief, was

Robert D. Laurie, for the appellee (third-party defendant).
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Orlando v. Liburd

Opinion

WESTBROOK, J. In this action arising out of a motor

vehicle accident, the plaintiff, Rocco Orlando, appeals

from the judgment of the trial court rendered in favor of

the third-party defendant, Nationwide Mutual Insurance

Company (Nationwide),1 on counts three and four of

the operative amended complaint and from the court’s

denial of a motion for leave to amend an earlier complaint.2 The plaintiff claims that the court improperly

(1) denied his request to amend, which prevented him

from curing alleged pleading deficiencies and (2) dismissed for lack of subject matter jurisdiction his counts

directed against Nationwide because, contrary to the

court’s conclusion, the claims therein were ripe under

the ‘‘make whole doctrine.’’3 We affirm the judgment

of the trial court.

1 The named defendant and third-party plaintiff, Ernest Liburd, has not

participated in this appeal. 2 At the time the court rendered the decision underlying this appeal, counts

three and four were the only unresolved counts of the operative complaint

directed against Nationwide and, thus, the court’s decision, at first blush,

appeared to constitute an appealable final judgment in accordance with

Practice Book § 61-3. After the initial appeal was filed, however, it became

clear that the court had rendered a final judgment only with respect to one

of the two counts at issue on appeal, and that the court also had never

rendered judgment on a previously stricken count also directed against

Nationwide. Prompted by an order of this court, the parties sought and

obtained judgment on all stricken counts, and the plaintiff subsequently

filed an amended appeal. Accordingly, although the original appeal is dismissed for lack of a final judgment, the amended appeal, which raises the

same claims of error, is properly before us. See Practice Book § 61-9; Haworth

Country Club, LLC v. United Bank, 226 Conn. App. 665, 668 n.1, A.3d

(2024).

3 In Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 309

Conn. 449, 72 A.3d 36 (2013), our Supreme Court clarified that the make

whole doctrine is ‘‘sound policy’’; id., 457; and ‘‘operates as a default rule

in Connecticut insurance contracts.’’ Id., 458. It explained the doctrine as

follows. First, it recognized the principle that an insurer’s right to subrogation

‘‘promotes equity by preventing an insured from receiving more than full

indemnification as a result of recovering from both the wrongdoer and the

insurer for the same loss, which would unjustly enrich the insured.’’ Id.,

456. It then explained that, ‘‘[if] the amount recoverable from the responsible
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Orlando v. Liburd

The following undisputed facts and procedural history are relevant to our discussion of the plaintiff’s

amended appeal. On November 6, 2018, the plaintiff was

involved in a motor vehicle accident with the defendant,

Ernest Liburd. At the time of the accident, the plaintiff

was insured by Nationwide, and Nationwide paid to

repair the damage to the plaintiff’s vehicle that resulted

from the accident. On September 23, 2019, the plaintiff

commenced the underlying action against Liburd alleging that Liburd negligently struck the plaintiff’s vehicle

and caused the plaintiff’s damages, including diminished value of the plaintiff’s vehicle. Liburd moved to

implead Nationwide as a third-party defendant, and the

court, Cobb, J., granted the motion. On April 20, 2021,

Liburd filed a third-party complaint against Nationwide

alleging that his insurer had tendered his full policy

limit to Nationwide and that Nationwide had misrepresented to him that the plaintiff had been made whole.

On May 13, 2021, the plaintiff filed an amended complaint that purported to assert apportionment claims

against Nationwide. On September 17, 2021, the plaintiff

filed a second amended complaint. Count one of the

second amended complaint asserted a negligence cause

of action against Liburd and counts two, three and four

asserted causes of action against Nationwide based on

negligent misrepresentation, common-law indemnification and unjust enrichment.

On November 22, 2021, the court, Rosen, J., granted

Nationwide’s motion for a judgment of nonsuit against

Liburd for failing to comply with an unopposed request

third party is insufficient to satisfy both the total loss sustained by the

insured and the amount the insurer pays on the claim, however, this principle

may lead to inequitable results. . . . The make whole doctrine addresses

this concern by restricting the enforcement of an insurer’s subrogation rights

until after the insured has been fully compensated for her injuries, that is

. . . made whole.’’ (Citation omitted; internal quotation marks omitted.)

Id., 456–57.
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Orlando v. Liburd

that he revise his third-party complaint. See Practice

Book § 10-37 (a).4

On December 30, 2021, Nationwide moved to strike

counts two, three, and four of the second amended

complaint noting that the plaintiff’s claims against

Nationwide were apportionment claims that were

entirely reliant on Liburd’s allegations in his third-party

complaint for which a judgment of nonsuit had been

rendered. Nationwide argued that the counts against it

should be dismissed or that they asserted only conclusory allegations that were legally insufficient to sustain

the causes of action pleaded and, thus, should be

stricken.

In response to the motion to strike, on January 27,

2022, less than four months before jury selection was

scheduled, the plaintiff requested leave to file a third

amended complaint that sought to plead additional

causes of action against Nationwide sounding in wrongful subrogation, breach of fiduciary duty, breach of

contract, breach of the implied covenant of good faith

and fair dealing, conversion, and statutory theft in violation of General Statutes § 52-564. The court denied the

plaintiff’s request, stating: ‘‘The proposed third amended

complaint is untimely, prejudicial and would unnecessarily delay the trial of this matter. Jury selection is

scheduled for May 19, 2022. The proposed third amended

complaint seeks to [add] numerous additional causes of

action against the defendant Nationwide, which would

require further pleading and discovery practice. Moreover, the new causes of action could have been asserted

in prior requests to amend the complaint.’’ On March

4 Practice Book § 10-37 (a) provides in relevant part that a properly served

and filed request to revise ‘‘shall be deemed to have been automatically

granted by the judicial authority on the date of filing and shall be complied

with by the party to whom it is directed within thirty days of the date of

filing the same, unless within thirty days of such filing the party to whom

it is directed shall file objection thereto.’’
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Orlando v. Liburd

7, 2022, the court granted Nationwide’s motion to strike,

noting in its order that the plaintiff had consented at

oral argument to the granting of the motion.

On March 21, 2022, the plaintiff filed a third amended

complaint pursuant to Practice Book § 10-44,5 and, on

April 18, 2022, to correct certain scrivener’s errors, filed

the operative fourth amended complaint. The operative

complaint retained count two as a placeholder, noting

parenthetically that it previously had been stricken by

the court.6 Counts three and four of the operative complaint alleged the plaintiff’s previously stricken causes

of action against Nationwide that purported to sound

in unjust enrichment and common-law indemnity,

respectively. With respect to count three, the plaintiff

alleged that Nationwide was unjustly enriched by its

premature subrogation because the plaintiff had not yet

been made whole, and that, ‘‘[i]f [Liburd] should be

held liable to pay damages to the plaintiff . . . then

the plaintiff is entitled to recover from Nationwide for

all sums adjudged against [Liburd] in favor of the plaintiff.’’ (Emphasis added.)

On June 2, 2022, Nationwide moved to strike counts

three and four of the operative complaint. The plaintiff

filed an opposition only as to count three, indicating

therein that ‘‘[t]he plaintiff does not wish to object to

[Nationwide’s] motion to strike count four alleging common-law indemnity.’’ The court, Sicilian, J., held oral

argument on the motion to strike on September 12,

2022, with the arguments limited to count three of the

complaint.

5 Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after

the granting of any motion to strike, the party whose pleading has been

stricken may file a new pleading . . . .’’ 6 The plaintiff was not attempting to replead count two and does not

challenge in the present amended appeal the court’s decision to strike and

render judgment on that count.
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Orlando v. Liburd

On September 29, 2022, the court sua sponte raised

the issue of ripeness with respect to count three and

ordered the parties to brief that issue.7 Both parties

submitted briefs, following which the court granted the

motion to strike with respect to count four, noting that

the plaintiff had not contested the motion to strike with

respect to that count, and dismissed count three of the

complaint as not ripe for adjudication. In its memorandum of decision, the court stated that, ‘‘[b]y its plain

words, the plaintiff’s count three asserts a claim contingent upon an event that has not and may never occur.

Therefore, the claim is not ripe.’’ This amended appeal

followed. See footnote 2 of this opinion. Additional facts

will be set forth as necessary.

I

The plaintiff first claims that the court improperly

denied his January, 2022 request for leave to amend his

second amended complaint. In particular, the plaintiff

argues that (1) the proposed amendment would not

have prejudiced Nationwide because the parties were

still in the pleading stage of litigation, and (2) denying

the proposed amendment prejudiced the plaintiff

because it prevented him from curing alleged pleading

deficiencies and asserting new causes of action against

Nationwide.

7 The court’s order provided in relevant part: ‘‘In paragraph 14 of count

three of the fourth amended complaint, the plaintiff alleges: If [Liburd]

should be held liable to pay damages to the plaintiff . . . then the [p]laintiff

is entitled to recover from Nationwide . . . . It therefore appears that the

plaintiff’s claim for damages against Nationwide may be unripe and that

the court may lack subject matter jurisdiction over the claim. See Cadle Co.

v. D’Addario, 111 Conn. App. 80, 82–83, 957 A.2d 536 (2008) (‘in determining

whether a case is ripe, a trial court must be satisfied that the case before

[it] does not present a hypothetical injury or a claim contingent upon some

event that has not and indeed may never transpire’).

‘‘The plaintiff and Nationwide are ordered, within forty-five days of the

date of this order, to brief the question whether the court has subject

matter jurisdiction over the plaintiff’s claim for unjust enrichment against

Nationwide.’’
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Orlando v. Liburd

‘‘Our standard of review of the [plaintiff’s] claim is

well defined. A trial court’s ruling on a motion of a

party to amend its complaint will be disturbed only on

the showing of a clear abuse of discretion. . . .

Whether to allow an amendment is a matter left to the

sound discretion of the trial court. [An appellate] court

will not disturb a trial court’s ruling on a proposed

amendment unless there has been a clear abuse of that

discretion. . . . It is the [plaintiff’s] burden in this case

to demonstrate that the trial court clearly abused its

discretion. . . .

‘‘A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. . . . Factors to be considered in

passing on a motion to amend are the length of the

delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . .

The essential tests are whether the ruling of the court

will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly

delay a trial.’’ (Internal quotation marks omitted.)

Rodriguez v. Hartford, 224 Conn. App. 314, 325, 312

A.3d 85, cert. denied, 349 Conn. 907, 313 A.3d 512, and

cert. denied, 349 Conn. 907, 313 A.3d 512 (2024); see

also Booth v. Park Terrace II Mutual Housing Ltd.

Partnership, 217 Conn. App. 398, 432, 289 A.3d 252

(2023).

In the present case, the plaintiff has failed to demonstrate that the court abused its discretion in denying

his request to amend his second amended complaint.

The court’s denial did not prevent the plaintiff from

curing alleged pleading deficiencies with respect to the

counts initially pleaded because the plaintiff had the

opportunity to cure such deficiencies when he filed the

third amended complaint in March, 2022. Moreover,

although the plaintiff could not properly assert the six

additional causes of action in the third and fourth
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Orlando v. Liburd

amended complaints; see Stone v. Pattis, 144 Conn.

App. 79, 94, 72 A.3d 1138 (2013) (‘‘Practice Book § 10-

44 grants the power to amend the portion of a complaint

that has been stricken, not the power to revise a complaint entirely’’); the court found that he had had an

opportunity to assert those causes of action in prior

requests to amend the complaint and failed to do so.

The trial court also found that permitting the proposed amendment would considerably delay the proceedings in light of the upcoming trial date, despite the

fact that the parties were still in the pleading stage of

litigation. See Rodriguez v. Hartford, supra, 224 Conn.

App. 325 (trial court did not abuse its discretion in

denying amendment that would considerably delay proceedings). We conclude that the court’s ruling did not

reflect an abuse of the court’s discretion regarding the

amendment of pleadings and, accordingly, reject the

plaintiff’s claim to the contrary.

II

The plaintiff also claims that the court improperly

dismissed his unjust enrichment count against Nationwide for lack of subject matter jurisdiction on ripeness

grounds. In particular, the plaintiff argues that, contrary

to the court’s conclusion, the claim was ripe for adjudication because Nationwide’s premature subrogation

had caused him tangible legal injury under the make

whole doctrine. The plaintiff additionally argues that

the court improperly failed to consider evidence that

he presented regarding ripeness. We disagree with both

aspects of the plaintiff’s claim.

A

First, we briefly set forth the standard of review and

relevant legal principles that govern our review of the

plaintiff’s argument that his unjust enrichment claim

was ripe for adjudication. ‘‘[J]usticiability comprises
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Orlando v. Liburd

several related doctrines, namely, standing, ripeness,

mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter. . . . A case

that is nonjusticiable must be dismissed for lack of

subject matter jurisdiction. . . . [B]ecause an issue

regarding justiciability raises a question of law, our

appellate review [of the plaintiff’s ripeness claim] is

plenary. . . .

‘‘[T]he rationale behind the ripeness requirement is

to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements . . . . Accordingly, in determining

whether a case is ripe, a trial court must be satisfied

that the case before [it] does not present a hypothetical

injury or a claim contingent upon some event that has

not and indeed may never transpire.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69,

86–87, 952 A.2d 1 (2008).

In Cadle Co. v. D’Addario, 111 Conn. App. 80, 81, 957

A.2d 536 (2008), the plaintiff purchased a promissory

note from a creditor of a decedent and filed a notice

of claim against the decedent’s estate. This court, finding that the claim was not ripe for adjudication, stated

the following: ‘‘[T]he existence of the plaintiff’s injury

is contingent on a determination of the priorities of the

creditors of the decedent’s estate, the final settlement

of the estate and the absence of sufficient funds in the

estate to satisfy the plaintiff’s claim. In other words,

any injury sustained by the plaintiff stemming from the

allegations of the defendants’ misconduct are, at this

point, hypothetical.’’ Id., 83.

Turning to the present case, similar to the facts in

Cadle Co., the plaintiff’s unjust enrichment claim
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Orlando v. Liburd

against Nationwide is contingent on a final determination of his claims against Liburd and, if the plaintiff is

awarded damages, the absence of sufficient funds from

Liburd or his insurer to satisfy the plaintiff’s claim. Even

if, unlike in Cadle Co., the plaintiff’s priority rights may

already be determined under the make whole doctrine,8

the plaintiff’s claim against Nationwide is still contingent upon whether and to what extent the plaintiff can

recover against Liburd as well as whether Liburd will

be able to satisfy the hypothetical judgment.

Additionally, this case is distinguishable from cases

in which only the amount of damages was in question.

See Chapman Lumber, Inc. v. Tager, supra, 288 Conn.

87–88 (although exact amount of plaintiff’s damages

was uncertain, because it was clear there was no way

plaintiff could recover entirety of its debt as sought

in complaint, plaintiff had sustained some damages);

Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 211–

14, 719 A.2d 465 (1998) (plaintiff’s inverse condemnation action was ripe despite potential of success of

administrative appeal from taking of its land because

it would still be entitled to some compensation for

temporary taking it had suffered during pendency of

that appeal); Mayer v. Biafore, Florek & O’Neill, 245

Conn. 88, 92, 713 A.2d 1267 (1998) (judicial determination that action was barred by statute of limitations

was not necessary to justiciability of legal malpractice

claim because injury already occurred); Weiner v. Clinton, 100 Conn. App. 753, 759–60, 919 A.2d 1038 (malpractice matter was ripe despite pending appeal because

injury of default judgment allegedly caused by legal

negligence already occurred), cert. denied, 282 Conn.

928, 926 A.2d 669 (2007). Here, because the plaintiff’s

8 The parties dispute whether the plaintiff has priority rights to Liburd’s

insurance policy under the make whole doctrine. Because we find that the

plaintiff’s claim against Nationwide is not ripe for adjudication, we do not

reach the merits of this dispute.
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Orlando v. Liburd

claim against Liburd has yet to be adjudicated and liability for the alleged loss determined, and there is no

allegation that Liburd is insolvent, it is impossible to

ascertain whether the plaintiff will sustain any compensatory injury as a result of Nationwide’s alleged misconduct.

Furthermore, the plaintiff’s reliance on Saunders v.

KDFBS, LLC, 335 Conn. 586, 239 A.3d 1162 (2020), as

authority for his argument that Nationwide’s infringement on his priority rights to Liburd’s insurance policy

is sufficient injury to make his claim ripe, is misplaced.

In Saunders, our Supreme Court addressed ‘‘whether

a determination of the priority of mortgages can be

challenged in an appeal from the judgment of foreclosure by sale, before the foreclosure sale has taken place,

when the priority of the foreclosing plaintiff’s mortgage

is in dispute.’’ Id., 588. The court held that the priority

determination could be appealed because the trial court

had conclusively established the parties’ priority rights,

and the order of priority is essential to foreclosure

because bidders at a foreclosure sale need to know the

order of the encumbrances to which the property is

subject. Id., 603–606.

Here, unlike the foreclosure action in Saunders, the

court did not conclusively decide which party has priority rights to Liburd’s insurance policy. Nor is the dispute

over priority rights essential to the determination of

the plaintiff’s negligence claim against Liburd. To the

contrary, determination of the plaintiff’s claim against

Liburd is necessary before the court can ascertain

whether Nationwide has been unjustly enriched by subrogation. The rationale supporting the decision in Saunders does not apply here. In short, we reject the plaintiff’s claim that count three of his complaint was ripe

for adjudication because Nationwide’s premature subrogation had caused him tangible legal injury under the

make whole doctrine.
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Orlando v. Liburd

B

The plaintiff also argues that the court improperly

concluded that his unjust enrichment claim was not

ripe because it failed to consider certain evidence presented by the plaintiff. We disagree.

‘‘[L]ack of subject matter jurisdiction may be found

in any one of three instances: (1) the complaint alone;

(2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution

of disputed facts. . . . [I]f the complaint is supplemented by undisputed facts established by affidavits

submitted in support of the motion to dismiss . . .

other types of undisputed evidence . . . and/or public

records of which judicial notice may be taken . . . the

trial court, in determining the jurisdictional issue, may

consider these supplementary undisputed facts and

need not conclusively presume the validity of the allegations of the complaint.’’ (Citations omitted; emphasis

in original; footnote omitted; internal quotation marks

omitted.) Conboy v. State, 292 Conn. 642, 651–52, 974

A.2d 669 (2009).

Here, the plaintiff’s argument concerns copies of two

emails from Liburd’s counsel that the plaintiff attached

to his brief. The first email contains a copy of a check

for twenty-five thousand dollars and states, ‘‘[p]lease

see the attached release and settlement check for the

PD limits of 25,000.00 following the intracompany arbitration process.’’ The second email states: ‘‘I know

Nationwide is fighting everything tooth and nail on this

one but have you had any discussions with them about

resolving this case. I think the last time we spoke you

indicated that your plan was to get Nationwide and

make a claim for a portion of the benefits State Farm

paid to Nationwide. As you know we paid the policy

limit on this one.’’ The plaintiff points to the following
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Orlando v. Liburd

portion of the court’s memorandum of decision as support for his argument that the court failed to consider

the emails that he submitted: ‘‘The plaintiff’s complaint

here does not allege the amount of his claimed damages,

the amount subrogated by his insurer, or the limits of

Liburd’s coverage. . . . [T]hose omissions are fatal.’’

The plaintiff’s exhibits, however, are copies of emails

that are unaccompanied by any affidavit or other undisputed evidence. See Practice Book § 10-31 (opposition

to motion to dismiss should, if appropriate, include

‘‘supporting affidavits as to facts not apparent on the

record’’). Accordingly, the court properly decided the

issue of subject matter jurisdiction on the basis of the

operative complaint alone.

More importantly, even considering the plaintiff’s

exhibits, they were not sufficient to render his claims

against Nationwide ripe for adjudication. Regardless of

the amount of Liburd’s insurance policy and the amount

Liburd’s insurer paid to Nationwide, as we concluded

in part II A of this opinion, the plaintiff’s claim against

Nationwide is wholly contingent upon the plaintiff

obtaining a judgment against Liburd and Liburd being

unable to satisfy the hypothetical judgment. Thus, even

if the exhibits were erroneously ignored by the trial

court, the plaintiff’s exhibits do not persuade us that

the claim is ripe for adjudication.9

The judgment is affirmed.

In this opinion the other judges concurred.

9 To the extent that the parties raise the issue of whether the plaintiff has

standing to assert an unjust enrichment claim against Nationwide, we do

not reach this issue because we conclude that the claim is not ripe for

adjudication.