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CHICAGO TITLE INSURANCE COMPANY

v. ACCURATE TITLE SEARCHES, INC.

(AC 37869)

Sheldon, Prescott and Flynn, Js.

Argued October 6, 2016—officially released May 30, 2017

(Appeal from Superior Court, judicial district of

Hartford, Bright, J. [summary judgment motion]; Wiese,

J. [judgment])

Anthony E. DeCrosta, for the appellant-appellee

(defendant).

Gerald L. Garlick, for the appellee-appellant

(plaintiff).
Opinion

SHELDON, J. This is an action by the plaintiff, Chicago Title Insurance Company (Chicago Title), to

recover damages from the defendant, Accurate Title

Searches, Inc., for losses allegedly incurred by Ticor

Title Insurance Company (Ticor Title), another title

insurer with which the plaintiff later merged,1 due to

the defendant’s negligence in performing a title search

as to a parcel of real property in Hartford (property).

In reliance upon that title search, Ticor Title issued a

lender’s title insurance policy (policy) for the property

to NationOne Mortgage Company, Inc. (NationOne), a

lender that took a note and mortgage on the property

from Janice Flemming, in exchange for a $208,000 loan

to finance her purchase of the property from its purported owner, Joseph M. Davis. The plaintiff incurred

the losses here complained of in investigating and settling claims against NPL Investment Trust I(NPL Investment),2 which had become an insured under the policy

upon acquiring Flemming’s note and mortgage from

NationOne, by two entities claiming to have superior

interests in the property to those of NPL Investment.

One such claimant, Terry Road, LLC (Terry Road), allegedly acquired its superiorinterest in the property pursuant to a quitclaim deed from Davis dated February 22,

2006, which was recorded on the Hartford land records

on April 21, 2006. The other claimant, Connecticut

Attorneys Title Insurance Company (CATIC), allegedly

acquired its superior interest in the property pursuant

to a $500,000 attachment against Terry Road, which was

recorded on the Hartford land records on September 10,

2009.

After moving successfully for summary judgment on

the issue of the defendant’s liability for negligence, the

plaintiff presented two related claims for damages to

compensate it for losses allegedly caused by such negligence, together with prejudgment interest on such damages pursuant to General Statutes § 37-3a, at two

separate hearings in damages. At an initial hearing in

damages, the plaintiff sought, and the trial court, Wiese,

J., awarded, $77,500 in damages to compensate it for

all sums it paid to settle the claims of Terry Road and

CATIC against NPL Investment. The court held that the

amount of that settlement, which had been negotiated

at arm’s length at a judicial pretrial, was reasonable,

and thus awarded it to the plaintiff as compensatory

damages in this action. At a second hearing in damages,

however, the same trial court, Wiese, J., denied the

plaintiff’s additional claim for damages to compensate

it for the attorney’s fees and expenses it had incurred

in investigating and resolving Terry Road’s and CATIC’s

counterclaims against NPL Investment, and denied the

plaintiff’s claim for prejudgment interest on its earlier

damages award under § 37-3a. The court based its rejection of the plaintiff’s additional claim for damages upon
its understanding of the so-called American rule,3 under

which parties bringing civil actions to recover damages

from alleged wrongdoers are generally required to pay

their own attorney’s fees and expenses to prosecute

such actions. The court rejected the plaintiff’s claim

for prejudgment interest on its earlier damages award

on the ground that that award was ‘‘an unliquidated

sum [that was neither] already payable prejudgment

nor wrongfully withheld.’’4

On appeal, the defendant claims that the trial court

erred in awarding the plaintiff compensatory damages

in the full amount of its settlement with Terry Road

and CATIC, without first requiring the plaintiff to prove

that NPL Investment was legally liable for, and thus

required to pay the settling parties, that entire amount.

This is so, claims the defendant, because the plaintiff’s

present claim sounds not in negligence but in commonlaw indemnification,5

for which the plaintiff is only entitled to recover damages for payments to third parties

which it was legally obligated to make. The defendant

argues that where, as here, a party from which a plaintiff

seeks indemnification for payment of an underlying

claim is not given notice of or an opportunity to defend

against that claim, the plaintiff, as would-be indemnitee,

must prove not only that the amount it seeks to recover

from the defendant, as alleged indemnitor, was a reasonable amount to settle the claim, but that the plaintiff

was legally liable to pay the claimant that amount.

In its cross appeal, the plaintiff claims that the court

erred in ruling that the American rule precluded the

plaintiff from recovering, as an element of compensatory damages, the attorney’s fees and expenses that

it incurred to investigate and settle Terry Road’s and

CATIC’s underlying claims against NPL Investment.

That rule, it argues, only bars a plaintiff from recovering

the attorney’s fees and expenses it has incurred in the

particular litigation in which such fees and costs are

sought, not those incurred in previous actions that the

plaintiff was forced to defend as a result of the defendant’s negligence.

On the record before us, we agree with the trial court,

Bright, J.,that the plaintiff’s claim sounds in negligence,

not in common-law identification, and thus that the

defendant’s arguments as to what proof is required to

prevail on a claim for indemnification are inapplicable

to this case. On the other hand, we disagree with the trial

court, Wiese, J., that the plaintiff’s claim for damages to

compensate it for the attorney’s fees and expenses it

incurred to defend its insured in prior litigation is

barred in this action by the American rule. Accordingly,

although we reverse the court’s judgment denying the

plaintiff’s claim for compensatory damages in the

amount of its prior attorney’s fees and expenses and

remand this case for further proceedings on that claim,

we affirm the court’s judgment in all other respects.
The following facts and procedural history are relevant to our disposition of this appeal. In May, 2004,

Leroy R. McCalop was the record owner of the property

located at 108–110 Webster Street in Hartford. On May

19, 2004, McCalop issued a general warranty deed

(McCalop deed) which provided: ‘‘I, LEROY R. McCALOP of 1417 Stafford Avenue Bristol, Connecticut 06010

for consideration of TWO HUNDRED THOUSAND AND

00/100 ($200,000.00) DOLLARS received to my full satisfaction of JOSEPH M. DAVIS of 15 June Street, East

Hartford Connecticut do give, grant, bargain, sell and

confirm unto the said LEROY R. McCALOP . . . all

that certain piece or parcel of land . . . situated in the

Town of East Hartford, County of Hartford and State

of Connecticut, known as 108–110 Webster Street

. . . .’’6 That same day, Davis encumbered the property

with two mortgages in the aggregate amount of

$200,000. The McCalop deed and Davis’ two mortgages

were subsequently recorded on June 7, 2004. As recently

as February 2, 2006, Davis was listed as the property’s

account holder for municipal utilities and taxes.

Approximately two years afterthe McCalop deed was

executed, Davis purportedly conveyed the property, on

two separate occasions, to two different parties. The

first such conveyance took place on February 22, 2006,

when Davis delivered a quitclaim deed for the property

to Terry Road. This quitclaim deed was recorded on

April 21, 2006. Thereafter, Terry Road encumbered the

property with a $25,996 mortgage, which was recorded

on May 17, 2006. Davis’ second purported conveyance

of the property took place on July 13, 2006, when he

delivered a warranty deed for the property to Flemming

for $260,000. As consideration for the loan, Flemming

gave NationOne a note in the amount of $208,000

secured by a mortgage for the property. NationOne, in

turn, applied for a lender’s title insurance policy with

respect to the property with the plaintiff’s predecessor,

Ticor Title.7

In an effort to assess the quality of Davis’

title to the property, Ticor Title requested two title

searches with respect to the property.

On April 17, 2006, approximately two months after

Davis’ initial conveyance of the property by quitclaim

deed to Terry Road, but four days before that deed was

recorded, Ticor Title retained the defendant to perform

its first title search with respect to the property. Ticor

Title specified in its search order that it sought a ‘‘[f]ull

([forty plus] years)’’ search of the property, of which

the ‘‘current owner’’ was listed as ‘‘Joseph Davis.’’ Pursuant to this search order, the defendant conducted a

title search with respect to the property and submitted

a written report of its findings to ‘‘Patricia Kunz, [Ticor

Title].’’ According to that report, the search covered

the period starting on May 20, 1957, and ending on April

12, 2006, and revealed that the ‘‘most recent conveyance’’ of the property had been by warranty deed dated
May 19, 2004, from ‘‘Leroy R. McCalop,’’ as ‘‘grantor,’’

to ‘‘Joseph M. Davis or Leroy R. McCalop,’’ as ‘‘grantee,’’

which was recorded on June 7, 2004. Accordingly,

although the author of the report noted that there was

a ‘‘mistake in deed, in that it states consideration from

Davis but conveys property to McCalop,’’ the report

concluded that the ‘‘present title holder’’ of the property

was ‘‘Joseph M. Davis or Leroy R. McCalop.’’ The report

also noted Davis’ two mortgages on the property, which

had been recorded in June, 2004, and attached a printout

listing Davis as the then current account holder on the

property’s municipal utility bills.

Approximately two months after the first title search,

on June 13, 2006, the defendant conducted a second

title search with respect to the property, also on behalf

of Ticor Title. On this occasion, as on the first, the

defendant purportedly conducted another ‘‘full forty

year statutory search’’ with respect to the property,

albeit for a longer period, from May 20, 1957, until June

13, 2006, which ended approximately two months after

Terry Road’s quitclaim deed and one month after its

mortgage had been recorded on the Hartford land

records. In the written report of its findings based upon

this second title search, as in the earlier written report

based upon its first title search, the defendant once

again noted the apparent ‘‘mistake’’ in the McCalop

deed as well as Davis’ subsequently recorded mortgages

on the property. Despite these indications as to Davis’

possible title interest in the property, the defendant

failed to investigate Davis’ name in the grantor-grantee

index. Consequently, the defendant never found, and

the written report ofits findings never mentioned, either

Terry Road’s quitclaim deed from Davis or its subsequent mortgage on the property, both of which were

recorded several weeks before the listed ending date

of the second title search. As a result of this omission,

Ticor Title, NationOne, and Flemming were all unaware,

at the time of Davis’ purported conveyance of the property to Flemming, that Davis had previously transferred

all of his interest in the property to Terry Road.

On July 6, 2006, one week before the conveyance

from Davis to Flemming, McCalop issued a ‘‘corrective

warranty deed,’’ naming Davis as the intended grantee

of the 2004 McCalop deed.8 The following week, on July

13, 2006, Flemming obtained a mortgage from

NationOne in the amount of $208,000. In conjunction

with the Flemming mortgage, NationOne procured the

policy from Ticor Title, which had agreed to insure it, as

Flemming’s mortgagee, in reliance upon the defendant’s

title search reports. That same day, Davis executed a

warranty deed purporting to convey the property to

Flemming in exchange for $260,000.

By March 18, 2008, Flemming had defaulted on her

mortgage. Thereafter, the successor mortgagee, NPL

Investment, commenced an action to foreclose on the
property and recorded a lis pendens9 on the Hartford

land records. On October 1, 2009, NPL Investment filed

its amended complaint, alleging that Flemming had

defaulted on her mortgage and that both Terry Road

and CATIC held junior interests in the property.

After receiving notice of the pending action, both

Terry Road and CATIC filed answers and counterclaims

against NPL Investment and cross claims against Flemming and other defendants. The counterclaims and

cross claims (hereinafter counterclaims) alleged that

NPL Investment’s mortgage was invalid because, by

virtue of Terry Road’s quitclaim deed from Davis, Davis

had no legal interest in the property to convey to Flemming, and thus Flemming had no legal interest in the

property when she obtained her mortgage from

NationOne.In response to these allegations, NPL Investment filed a claim with the plaintiff10 under the policy

for $208,000, which was then the outstanding principal

balance on Flemming’s note.

After receiving NPL Investment’s claim under the

policy, the plaintiff reviewed the title search reports to

assess the validity of CATIC’s and Terry Road’s counterclaims. Subsequent investigation revealed that the

defendant’s second title search report failed to disclose

either Terry Road’s quitclaim deed or its mortgage on

the property, both of which had been recorded prior

to June, 2006. On the basis of those findings, the plaintiff

entered into negotiations with CATIC and Terry Road,

on behalf of NPL Investment, in an effort to settle their

counterclaims, and thus to resolve NPL Investment’s

claim underthe policy. Although CATIC and Terry Road

initially demanded $150,000 to settle their dispute with

NPL Investment, the parties ultimately agreed to settle

the matter for $77,500. Under the parties’ settlement

agreement, the plaintiff received a release of CATIC’s

interest in the property, a withdrawal of all legal claims

by both CATIC and Terry Road, and a quitclaim deed

from Terry Road to Flemming, which was issued on

July 6, 2011. Thereafter, on July 21, 2011, the plaintiff

issued a check in the amount of $77,500 to CATIC.

On March 5, 2012, plaintiff’s counsel sent a demand

letter to the defendant, seeking $77,500 in compensatory damages as well as compensation for all fees and

expenses it had incurred in investigating and negotiating a settlement of the underlying claims against NPL

Investment. Prior to receiving this demand letter, the

defendant had not been notified of any alleged defects

in its title search reports with respect to the property,

the counterclaims brought against NPL Investment

based upon alleged defects in Flemming’s title to the

property, or the plaintiff’s negotiations with Terry Road

and CATIC to settle those counterclaims.

On August 10, 2012, the plaintiff filed its one count

operative complaint against the defendant in this action,

alleging that the defendant had been negligent in con-
ducting its title search with respect to the property.

Specifically, the plaintiff alleged that the defendant had

a duty to exercise reasonable care in performing the

title search, that it breached that duty by failing to

investigate Davis’ name in the grantor-grantee index,

and that that breach had caused the plaintiff to suffer

$77,500 in economic damages. On June 21, 2013, the

plaintiff filed a motion for summary judgment as to the

defendant’s liability only. In response to that motion,

the defendant filed a memorandum in opposition to

summary judgment in which it claimed, inter alia, that it

had not breached its duty of care, and that the plaintiff’s

failure to provide notice of the underlying counterclaims precluded the plaintiff from asserting an indemnification claim against the defendant. On December

19, 2013, the trial court, Bright, J., granted the plaintiff’s

motion for summary judgment as to the defendant’s

liability. In its memorandum of decision, the court

rejected the defendant’s argument that this was an

indemnification action and held that the plaintiff had

demonstrated the absence of any genuine issue of material fact as to the defendant’s negligence.

Thereafter, on October 2, 2014, the court, Wiese, J.,

held an initial hearing in damages. In its memorandum

of decision following that hearing, dated December 31,

2014, the court found that the plaintiff had satisfied its

burden of proving, by a preponderance of the evidence,

that it was reasonably entitled to recover $77,500 in

economic damages to compensate it for all sums paid

to settle the counterclaims of CATIC and Terry Road

against NPL Investment. The court initially declined,

however, to rule on the plaintiff’s claims for damages

for attorney’s fees and expenses it had incurred to investigate and settle the claims against NPL Investment,

and for prejudgment interest on the plaintiff’s claims

for damages.

A second hearing in damages was held on March 24,

2015, to address the latter claims for damages. Three

days later, the court, Wiese, J., issued a second memorandum of decision in which it held that the plaintiff

was not entitled to prejudgment interest on its damages

award and that, under the American rule, the plaintiff

was not entitled to recover damages from the defendant

in this action to compensate it forthe attorney’s fees and

expenses it had incurred to investigate and negotiate a

settlement in the earlier action. Thereafter, the defendant filed its appeal from the court’s judgment and

the plaintiff filed its cross appeal. Additional facts and

procedural history will be set forth as necessary.

I

The defendant raises two arguments on appeal. The

defendant first argues that, contrary to the holding of

the trial court, Bright, J., the plaintiff’s complaint states

a claim for common-law indemnification, and thus, consistent with the principles of indemnification law, the
plaintiff was obligated to notify the defendant of the

counterclaims filed by Terry Road and CATIC prior

to negotiating a settlement agreement. The defendant

therefore argues that the plaintiff’s failure to notify it

of either the counterclaims or the plaintiff’s settlement

negotiations, until after the plaintiff was bound by the

terms of the settlement agreement, precluded the plaintiff from relying merely on the reasonableness of its

settlement agreement as the basis for awarding damages at the initial hearing in damages. Instead, the defendant argues, the plaintiff was required to prove the

merits of CATIC’s and Terry Road’s counterclaims

against NPL Investment and to establish the plaintiff’s

liability for those counterclaims in the amount it agreed

to pay. In addition, in the last two pages of its brief to

this court, the defendantraises, albeit without meaningful citation, a second argument that the court erred

in granting summary judgment as to the defendant’s

liability because the McCalop deed did not convey a

legal interest in the property to Davis, and thus that

Terry Road never acquired such an interest in the property pursuant to its quitclaim deed from Davis. On that

basis, the defendant argues in a cursory manner that

summary judgment on the issue of liability should not

have been granted by the trial court. We address each

claim in turn.

A

We first address whether the plaintiff was obligated

to notify the defendant either of the counterclaims of

CATIC or Terry Road, or its settlement negotiations

with those claimants and, if so, what effect, if any, its

failure to give such notification had on the proof

required of it to establish its entitlement to recover

damages in the full amount it paid to settle that action.

Dispositive of this analysis is the threshold issue of

whether this is a claim for common-law indemnification, as the defendant has asserted, rather than a claim

for negligence, as the plaintiff has consistently argued

and the trial court ruled. Because the sole basis for the

defendant’s argument that the plaintiff bears a special

burden of proof with respect to its liability forthe underlying claims it settled and now seeks to be compensated

foris its contention thatthis is a common-law indemnification claim, that argument must be rejected ab initio

if the present claim does not sound in common-law

indemnification. We conclude, for the following reasons, that the plaintiff’s claim sounds in negligence,

not in common-law indemnification, and thus that the

defendant’s first challenge to the trial court’s judgment

must be rejected.11

The following factual and procedural history is necessary to our resolution of this claim. The one count

operative complaint was filed on August 10, 2012. In

the second paragraph of the complaint, it was alleged

that the ‘‘[d]efendant performed a title search and
issued a title report in preparation for a mortgage loan

made by NationOne . . . to [Flemming] for her purchase of the property known as 108–110 Webster Street,

Hartford, Connecticut . . . .’’ In the fourth paragraph

of the complaint, it was alleged that ‘‘in conjunction

with the Closing, NationOne purchased [the policy]

from Ticor Title, which . . . policy was issued in reliance on the title search performed by [the] defendant.’’

(Emphasis added.) In the sixth and seventh paragraphs

of the complaint, the plaintiff alleged that ‘‘a claim was

subsequently made that [Flemming] was not the record

owner of the property’’ and, in response, the plaintiff

‘‘undertook to investigate the claim made under the

[policy] issued by Ticor Title, and, in 2011 . . .

incurred a loss by virtue of . . . paying $77,500 to

resolve that claim.’’ In the eighth and ninth paragraphs

of the complaint, the plaintiff alleged that the defendant

was negligent because, inter alia, the title search report

did not reflect the Terry Road deed and ‘‘the defendant

failed to exercise the degree of care, skill and/or diligence employed by title searchers practicing under similar circumstances.’’

We begin with our standard of review. ‘‘[T]he interpretation of pleadings is always a question of law for

the court . . . . Our review of the trial court’s interpretation of the pleadings therefore is plenary.’’ (Internal

quotation marks omitted.) Bross v. Hillside Acres, Inc.,

92 Conn. App. 773, 778, 887 A.2d 420 (2006). ‘‘[W]e have

long eschewed the notion that pleadings should be read

in a hypertechnical manner. Rather, [t]he modern trend,

which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and

technically. . . . [T]he complaint must be read in its

entirety in such a way as to give effect to the pleadings

with reference to the general theory upon which it proceeded, and to substantial justice between the parties.

. . . Our reading of pleadings in a manner that

advances substantial justice means that a pleading must

be construed reasonably, to contain all that it fairly

means, but carries with it the related proposition that

it must not be contorted in such a way so as to strain

the bounds of rational comprehension. . . . [E]ssential

allegations may not be supplied by conjecture orremote

implication . . . .’’ (Internal quotation marks omitted.)

Stotler v. Dept. of Transportation, 142 Conn. App. 826,

839, 70 A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d

527 (2014).

The defendant advances two arguments as to why

this is a claim for common-law indemnification and

why the plaintiff, therefore, was required to provide the

defendant with timely notice of the underlying counterclaims. The defendant first argues that, on the basis of

the facts presented, the plaintiff was passively negligent

for its losses and, therefore, its theory of recovery must

be that of common-law indemnification. Second, the

defendant emphasizes that the plaintiff incurred losses
as a result of its liability to a third party and, therefore,

the plaintiff’s claim to recover such damages is the

functional equivalent of a claim for indemnification. We

address each argument in turn.

1

In support of its first argument as to why this is a

claim of common-law indemnification, the defendant

asserts that ‘‘it has long been recognized that negligence

can form the basis of a claim for indemnification, if

the negligence of the indemnitee is passive and the

negligence of the indemnitor is active. . . . The plaintiff’s claim is obviously a claim for indemnification

based on active/passive negligence, and therefore the

consequences of not providing notice of the underlying

claim apply.’’ (Citation omitted.) The plaintiff, however,

argues that an action for common-law indemnification

requires the presence of two tortfeasors, and thus,

because it was not negligent, common-law indemnification is inapplicable to the facts of this case. The defendant counters that the plaintiff misconstrues the passive

negligence requirement, and that ‘‘passive negligence

specifically requires that a party not be negligent in any

manner, rather that liability is imposed as an operation

of law.’’ We agree with the plaintiff.

‘‘[A]n action for indemnification is one in which one

party seeks reimbursement from another party for

losses incurred in connection with the first party’s liability to a third party.’’ Amoco Oil Co. v. Liberty Auto &

Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002).

‘‘[A] loss in the context of indemnity is the payment

that discharges a liability.’’ Id., 149. In the absence of

an express contract for indemnification or statutory

provisions authorizing actions for indemnification; see

Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535

A.2d 357 (1988); a party may nonetheless assert an

implied right to indemnification as a measure of restitution. See 41 Am. Jur. 2d 383–84, Indemnity § 1 (2015);

see also 42 C.J.S. 144–45, Indemnity § 31 (2007). The

theory of common-law indemnification is an implied

right to indemnification and is considered a means of

achieving restitution between the parties. Where a party

seeks restitution in the form of common-law indemnification, several authorities agree that the party seeking

indemnity and the party from whom indemnification is

sought must be considered jointly and severally liable

for the loss incurred by the putative indemnitee. See

42 C.J.S., supra, § 2, p. 98 (‘‘[i]ndemnity applies only

where there is an identical duty owed by one and discharged by another’’); see also 42 C.J.S., supra, § 33, p.

149 (‘‘[a] cause of action for implied indemnification

requires a showing that the plaintiff and the defendant

owed a duty to a third party, and that the plaintiff

discharged the duty which, as between the plaintiff

and the defendant, should have been discharged by the

defendant’’); 41 Am. Jur. 2d, supra, § 1, p. 383 (‘‘[i]ndem-
nity requires that a common duty be mutually owed to

a third party’’); 1 Restatement (Third), Restitution and

Unjust Enrichment, § 23, comment (d) (2011) (‘‘A claim

to indemnity or contribution arises when the claimant

has discharged all or part of a joint obligation. A claim

under this section is readily distinguished, therefore,

from the similar claim that arises when A and B owe

independent duties to a third party C; or when A, acting

with adequate justification, renders a performance to

C for which B would have been liable to C directly.

. . . The restitution claim that arises from such transactions is . . . more often referred to as a claim to ‘equitable subrogation.’ ’’).

The consensus expressed by these authorities fully

aligns with our jurisprudence concerning claims for

common-law indemnification. The theory of commonlaw indemnification was first announced by our

Supreme Courtin the seminal case of Kaplan v. Merberg

Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965), as

an exception to the rule that ‘‘[o]rdinarily there is no

right of indemnity or contribution between joint [tortfeasors].’’ Id., 412. The rationale for this exception is

that ‘‘[w]here . . . one of the defendants is in control

of the situation and his negligence alone is the direct

immediate cause of the injury and the other defendant

does not know of the fault, has no reason to anticipate

it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should

bear the burden of damages due to the injury.’’ (Internal

quotation marks omitted.) Bristol v. Dickau Bus Co.,

63 Conn. App. 770, 773, 779 A.2d 152 (2001). As a result

of the decision in Kaplan, a third-party plaintiff who

previously has been found liable in tort may assert an

implied right to indemnity against another negligent

party, provided that the plaintiff satisfies the four elements of Kaplan.

12 In the fifty years since Kaplan

was decided, our courts have repeatedly stated that the

party asserting a claim for common-law indemnification

must be found to be chargeable with some degree of

negligence in the underlying action as a necessary predicate for sustaining such a claim. See Smith v. New

Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001) (holding

that ‘‘[t]he presence of two tortfeasors is thus required

for a viable claim of indemnification under Kaplan:

one, whose passive negligence resulted in a monetary

recovery by the plaintiff; and a second, whose active

negligence renders him liable to the first by way of

reimbursement’’); Bristol v. Dickau Bus Co., supra,

775–76 (holding that ‘‘[a]s long as the plaintiffs were

chargeable with some negligence . . . and as long as

that negligence was not active or primary . . . the

plaintiffs are not precluded from recovering under common-law indemnification’’ [emphasis in original]).

After conducting a comprehensive review of our case

law, we agree with the plaintiff that the theory of common-law indemnification is inapplicable to the facts in
the present case. Our conclusion rests on the fact that

the defendant has not presented evidence demonstrating that (1) the parties owed an identical duty to NPL

Investment, the insured and original plaintiff in the

underlying action; (2) the plaintiff’s payment under the

express terms of the policy discharged an obligation

for which the plaintiff and the defendant were jointly

and severally liable; or (3) the plaintiff’s payment under

the terms of the policy rendered it chargeable with

some degree of negligence in the underlying action.

See, e.g., Smith v. New Haven, supra, 258 Conn. 66.

Contrary to the defendant’s argument, the facts of this

case demonstrate that the parties owed each other distinct and separate duties, that the plaintiff’s fulfillment

of its contractual duties to NPL Investment was not the

discharge of a joint obligation, and that the plaintiff’s

compliance with its contractual obligation belies the

suggestion that it was passively negligent for the losses

that it incurred in settling the claim against NPL Investment. On the one hand, the defendant and the plaintiff

entered into a contract under which the defendant

agreed to conduct a title search with respect to the

property. Under that contract, the defendant’s liability

was narrow, in that it could be held liable only if it

either failed to perform the title search as promised or

performed it in a negligent manner. Conversely, the

plaintiff and its insured entered into a lender’s title

insurance policy, an agreement entirely distinct from

the plaintiff’s contract with the defendant. Under the

terms of the policy, the plaintiff agreed to defend,

indemnify, and hold harmless the lender in the event

that the quality of the title underlying the mortgage was

challenged. In this context, the plaintiff’s contractual

liability to its insured could be triggered by a number

of potential issues unrelated to the adequacy of the

defendant’s title search. After it received notice that

the mortgagee’s interest in the collateral was jeopardized, the plaintiff took steps in fulfillment of its contractual obligations with its insured to investigate and

resolve NPL Investment’s claim, which required the

plaintiff to spend $77,500 to remove a cloud on the

property’s title and obtain a release ofthe adverse claimants’ counterclaims.

We are not persuaded that this course of conduct

constitutes passive negligence in the underlying action;

rather, these facts suggest that the plaintiff fully complied with its duties to investigate and defend claims

that fell within the terms of the policy. Although we

agree with the defendant that there are limited circumstances in which a party’s passive negligence arises by

operation of law, those circumstances do not apply to

the present case.13 Accordingly, the facts of the record

presented do not support the defendant’s argument that

the plaintiff and the defendant owed an identical duty

to NPL Investment, that the plaintiff’s payment under

the terms of the policy discharged a joint and several
obligation of the parties, or that the plaintiff’s compliance with its contractual duties rendered it passively

negligent in the underlying case.

2

The defendant next argues that because the plaintiff’s

loss resulted from its contractual liability to a third

party, the plaintiff’s attempt to offset its liability by

recovering that amount from the defendant transforms

its claim into a claim for common-law indemnification.

Although we acknowledge that the plaintiff’s recovery

of such damages makes whole the plaintiff for its

expenses, the remedial effect of the plaintiff’s damages

does not transform this action, ipso facto, into a claim

for common-law indemnification. Indeed, the defendant

fails to account for cases in which a plaintiff has

asserted a claim of negligence against a defendant in

order to recover damages incurred as a result of the

plaintiff’s legal liability to a third party. See, e.g., Prokolkin v. General Motors Corp., 170 Conn. 289, 365 A.2d

1180 (1976); Mallinson v. Black, 41 Conn. App. 373, 675

A.2d 937 (1996); Commonwealth Land Title Ins. Co. v.

Close, Jensen & Miller, P.C., Superior Court, judicial

district of Hartford, Docket No. CV-06-5003046-S

(November 5, 2008) (46 Conn. L. Rptr. 602).

In Prokolkin, the plaintiff was involved in an automobile accident allegedly caused by his car’s defective

limited slip differential. Prokolkin v. General Motors

Corp., supra, 170 Conn. 291. Subsequent to the accident,

but prior to filing the operative complaint, the plaintiff

‘‘paid certain sums of money to settle the claims of [his]

passengers who suffered injuries in the same accident

. . . .’’ Id., 290–91. The plaintiff claimed to have suffered ‘‘$12,000 for his personal injuries and $18,375 by

way of indemnification.’’ Id., 291. Thereafter, the plaintiff advanced three claims against the defendant: a claim

for breach of an implied warranty, a claim of strict

products liability, and a claim of negligence. ‘‘In each

count of the amended complaint, the plaintiff sought

relief for both personal injuries and indemnification for

the sums paid by him in settlement of the suit brought

against him by the passengers injured in his car . . . .’’

Id., 293. ‘‘Upon motion of the defendant, a summary

judgment was rendered in its favor with respect to the

plaintiff’s personal injury claim on the negligence count

on the ground that it was barred by [the applicable

statute of limitations] . . . .’’ Id., 292. ‘‘[A]t trial, the

court submitted only the third count of strict products

liability to the jury but charged, without exception, that

a verdict on this count would also determine the implied

warranty count.’’ Id., 293. After the jury returned a verdict for the plaintiff in the amount $18,375 for his claim

of indemnification, the court granted the defendant’s

motion to set aside the verdict. Id., 302. The trial court

then ordered ‘‘that there be a trial on the indemnification claim of the second count of the complaint sound-
ing in negligence . . . .’’ Id., 305.

On appeal in Prokolkin, the plaintiff argued that the

trial court’s decision to set aside the verdict was erroneous. Id., 302. Our Supreme Court disagreed. The court

first found that, although the defendant’s motion for

summary judgment as to the plaintiff’s claim of negligence was granted as it related to the plaintiff’s claim

for personal injury damages, the defendant had not

challenged, and the court had not stricken, the plaintiff’s

second claim of negligence seeking $18,375 in indemnification for the sums paid to settle his passenger’s

claims. See id., 303. The court further found that the

trial court failed to submit the plaintiff’s negligence

claim seeking indemnification to the jury; it had only

submitted the plaintiff’s claim of strict liability. Id.

Because the Supreme Court found that the plaintiff’s

claim of strict liability was barred by the statute of

limitations, it found that the jury’s verdict had been

properly set aside. Id., 301–302. The court, however,

affirmed the trial court’s order ‘‘that there be a trial on

the indemnification claim of the second count of the

complaint sounding in negligence . . . .’’ Id., 305.

In Commonwealth Land Title Ins. Co., the defendant

Close, Jensen & Miller, P.C., a ‘‘well known civil engineering firm that has done extensive land surveying in

Connecticut,’’ and defendant John H. Miller, certified a

survey of two adjacent properties to the plaintiffs, two

title insurance companies who, in reliance on those

surveys, issued two owners title insurance policies to

the owners of the respective properties. Commonwealth Land Title Ins. Co. v. Close, Jensen & Miller,

P.C., supra, 46 Conn. L. Rptr. 603. The first survey,

performed by the engineering firm, certified that,

‘‘except as shown, there are no visible easements . . .

no encroachments onto adjoining premises, streets or

alleys by any of the said building structures or other

improvements, and no encroachments on to said premises by building structures or other improvements situated on adjoining premises.’’ (Internal quotation marks

omitted.) Id. The second survey, performed by Miller,

certified that ‘‘there are no encroachments or projections on or over the property or on the rights of way

or easements pertinent to the same by buildings or

improvements erected on adjacent land.’’ (Internal quotation marks omitted.) Id. In actuality, however, ‘‘[t]he

cement floor slabs of [one property] poured over the

property line to [the neighboring property]. As a result,

there were very irregular projections over the property

line, in many places varying in the length from several

inches to over nine inches. . . .

‘‘When these encroachments were discovered, both

plaintiffs’ insured made claims against the plaintiffs

based on the title policies insuring against any defect,

lien, or encumbrance on the titles of the subject properties. The plaintiff Commonwealth [Land Title Insurance
Company] paid to its insured . . . $98,336.30 and [the]

plaintiff Fidelity [National Title Insurance Company]

paid to its insured . . . $85,018.15.’’ Id. The plaintiffs

then brought claims of negligence against the defendants seeking ‘‘those amounts as damages against the

defendants.’’ Id. The trial court, Hon. Robert Satter,

judge trial referee, held that ‘‘the defendants clearly

owed a duty to the two plaintiffs because they certified

the surveys directly to the plaintiffs. If there was a

breach of that duty, causation occurred because plaintiffs relied on the survey to issue their title insurance

policy. [The] plaintiffs suffered damages by paying their

insureds for the very items plaintiffs insured against,

namely any defect in or lien or encroachment on the

title.’’ (Emphasis added; internal quotation marks omitted.) Id., 604. The court further held that this was not

a subrogation action, noting that ‘‘the plaintiffs are not

standing in the shoes of their insureds with a derivative

cause of action against the defendants. The plaintiffs

have a direct action against the defendants based on

the surveys being certified to them. In such an action,

as in any negligence action, a tortfeasor is liable for all

damages proximately caused by its negligence.’’ (Internal quotation marks omitted.) Id., 605.

These cases demonstrate that where a plaintiff is

owed a direct duty of care by a defendant who breaches

such duty and renders the plaintiff legally liable to a

third party, thereby causing the plaintiff to incur losses

in discharging that liability, the plaintiff may assert a

claim of negligence against the defendant and seek to

recover those costs as compensatory damages. The

mere fact that a plaintiff’s damages arose in connection

with its contractual liability to a third party does not

relegate the plaintiff to a claim for common-law indemnification, especially where, as here, the plaintiff was

not passively negligent for its losses. As an aside, a

pedestrian who has been struck by a vehicle while walking in a crosswalk does not need to assert a claim of

indemnification against the driver in order to recover

those medical expenses for which the pedestrian

becomes contractually liable. Indeed, those damages

are categorized appropriately as economic damages

that may be recovered in an action for negligence. As

such, we are unpersuaded by the defendant’s argument

that the plaintiff’s liability to a third party, by itself,

transformed this negligence claim into a claim of common-law indemnification.

In light of the foregoing analysis, we conclude that

the plaintiff’s claim was not a claim for common-law

indemnification. Rather, as the trial court, Bright, J.,

correctly found, this is a claim of negligence. The defendant could not and did not explain adequately why it

failed to investigate Davis’ name in the grantor-grantee

index during either its first or second title search of

the property. In fact, the defendant conceded during

oral argument to this court that its title search was
performed in a negligent manner. Had the defendant

exercised reasonable care in performing its second title

search, it would have discovered and its report would

have notified the plaintiff of TerryRoad’s quitclaim deed

and its subsequent mortgage on the property. Given

the commercial nature of the plaintiff’s business as an

insurer, it was readily foreseeable to the defendant that,

should its search be performed in a negligent manner,

the plaintiff may be forced to expend money in investigating and settling claims brought pursuant to an insurance policy that the plaintiff had issued in reliance upon

the accuracy of the defendant’s title search reports.

Thus, the plaintiff was entitled to recover, as compensatory damages, those sums reasonably spent in resolving

the underlying counterclaims, all of which would not

have been necessary had the defendant exercised reasonable care in performing its second title search.

The defendant offers no legal authority for the proposition that a plaintiff asserting a claim of negligence

owes the putative defendant a duty to notify, or that

its failure to provide such notice affects the applicable

standard of proof during a subsequent hearing in damages. Accordingly, we reject the defendant’s claims that

the plaintiff’s failure to provide timely notice to the

defendant altered the applicable standard of proof and

that the court, Wiese, J., applied the incorrect standard

of proof at the plaintiff’s first hearing in damages.

B

The defendant’s final argument, which accounts for

less than two pages of its brief, is that the trial court

erred in rendering summary judgment because the

plaintiff’s ‘‘entire claim rests on a [misinterpretation]

of the [McCalop] deed . . . [and that] any attempt to

change the result clearly stated requires assumptions

based on facts not in evidence. . . . At the very least,

evidence should be required before the plain meaning

of the deed is reinterpreted.’’ The defendant further

argues that ‘‘if Davis had no title to convey to Terry

Road, then [the] plaintiff had no legal obligation to pay

the underlying claim, and therefore has no claim against

the defendant . . . . Therefore, summary judgment

should not have been entered against the defendant.’’

Notably, the defendant’s brief is devoid of citation

or authority regarding our review of a trial court’s rendering of summary judgment; further, the defendant

fails to articulate whether a genuine issue of material

fact exists, thereby precluding the trial court’s granting

of summary judgment, and, if so, what evidence on

record before the trial court affirmatively demonstrated

the existence of such genuine issue. In light of these

patent defects in the defendant’s brief, we conclude

that the defendant’s second argument is inadequate for

our review. ‘‘It is well settled that [w]e are not required

to review claims that are inadequately briefed. . . . We

consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.

. . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties

must clearly and fully set forth their arguments in their

briefs. We do not reverse the judgment of a trial court

on the basis of challenges to its rulings that have not

been adequately briefed.’’ (Internal quotation marks

omitted.) Tonghini v. Tonghini, 152 Conn. App. 231,

239, 98 A.3d 93 (2014).

In any event, we note that even if this issue had been

adequately briefed, the defendant’s argument would fail

on the merits. Our conclusion is supported by the fact

that, during oral argument to this court, the defendant

conceded that its title search was, in fact, performed

in a negligent manner. Accordingly, even if this court

construed the defendant’s second argumentin its broadest terms, our analysis would be limited to deciding

whether, in light of the language of the 2004 McCalop

deed conveying the property from McCalop to McCalop,

Terry Road had a colorable claim of title against NPL

Investment, and thus whether the defendant’s negligence in failing to uncover the existence of the Terry

Road quitclaim deed was a proximate cause of the plaintiff’s loss. In this regard, we are reminded that the defendant submitted a copy of the corrective warranty deed

issued from McCalop to Davis, dated July 6, 2006,

together with its memorandum in opposition to the

plaintiff’s motion for summary judgment. Although the

defendant argues in its brief that ‘‘any attempt to change

the result clearly stated [in the McCalop deed] requires

assumptions based on facts not in evidence,’’ the defendant overlooks its own submission and the legal effect

of the July, 2006 corrective warranty deed.

‘‘A deed of confirmation may be appropriately utilized

in order to remove doubts as to the operativeness of a

prior deed to convey title to the land intended. . . .

Where the name of one of the grantees is omitted, the

omission may be cured by a subsequent deed incorporating the names of all the grantees in accordance with

the intention of the parties.’’ (Footnote omitted.) 23

Am. Jur. 2d 272–73, Deeds § 273 (2013). ‘‘A correction

deed normally relates back to the date of the original

deed, at least as between the parties to the deed. Thus,

a second deed correcting the erroneous description

contained in a former deed between the parties, as

between them, relates back and becomes effective as

of the date of the first deed.’’ (Footnote omitted.) 26A

C.J.S. 212, Deeds § 173 (2011). ‘‘[P]assage of title is

considered by a fiction of law to relate back to the date

of execution of the deed, provided no prejudice results

to intervening equities.’’14 Id., § 173, p. 212. Thus, as long

as the original deed is not void for want of the necessary

formalities, a corrective deed may be issued by the

original grantor to more accurately reflect the intentions of the parties to the original deed and may be
issued to correct, among other things, the spelling or

omission of an intended grantee’s name. See, e.g.,

Arnold Industries, Inc. v. Love, 63 P.3d 721, 728 (Utah

2002); Cox v. Tanner, 229 S.C. 568, 574–76, 93 S.E.2d

905 (1956); Golden v. Hayes, 277 So. 2d 816, 817 (Fla.

App. 1973).

A line-by-line comparison of the 2004 McCalop deed

and the 2006 corrective deed reveals that both documents recite: the same operative date of conveyance,

May 19, 2004; the same description of the parcel of land

being conveyed; the same exchange of consideration;

and the same general warranties. Indeed, the only differences between the two documents are that the corrective deed clarifies that the intended grantee of the 2004

conveyance was Davis, not McCalop, and that the property was located within the town of Hartford, not the

town of East Hartford.15 Accordingly, the July, 2006

corrective deed related back and became legally effective as of the original date of conveyance, May 19, 2004.

Consequently, Davis’ later transfer of the property by

quitclaim deed to Terry Road constituted a valid transfer of his interest in the property. The defendant does

not address the legal effects of the corrective deed in

its brief, and otherwise fails to demonstrate the existence of any genuine issue of material fact as to the

damages caused by its admitted negligence. Accordingly, we conclude, in the alternative, that the corrective

deed renders the defendant’s final argument meritless.

II

On its cross appeal, the plaintiff claims that the trial

court misinterpreted the American rule16 and erroneously relied upon it to preclude an award of compensatory damages to the plaintiff for the attorney’s fees and

related expenses it incurred to investigate and negotiate

a settlement of Terry Road’s and CATIC’s adverse

claims of title to the property against the plaintiff’s

insured, NPL Investment. The defendant counters that

the plaintiff’s failure to notify it of such claims and

its efforts to settle them precludes the plaintiff from

recovering such attorney’s fees and related expenses

in this matter. We agree with the plaintiff.

The following additional facts are relevant to the

resolution of this claim. After the trial court, Bright,

J., granted the plaintiff’s motion for summary judgment

as to the defendant’s liability for negligence in performing the title search upon which its predecessor,

Ticor Title, relied in issuing a lender’s title insurance

policy with respect to the property, the parties scheduled a hearing in damages for October 2, 2014. Following that hearing, the trial court, Wiese, J., issued a

written memorandum of decision, in which it ruled that

the plaintiff had established its entitlement to recover

$77,500 in damages to compensate it for all sums it had

paid to CATIC to settle CATIC’s and Terry Road’s claims

against NPL Investment. The trial court initially
declined, however, to rule on the plaintiff’s claim for

additional compensatory damages to compensate it for

the attorney’s fees and expenses that it had incurred to

investigate and settle those claims. Instead, the parties

agreed to address this issue at a second hearing in

damages. Prior to the second hearing in damages, the

plaintiff submitted an affidavit as to its attorney’s fees

and related expenses in the earlier litigation between

NPL Investment and CATIC and Terry Road, which

totaled $20,161.26.

Oral argument on the plaintiff’s claim for additional

compensatory damages was held on March 24, 2015.

During oral argument, the defendant argued that, absent

either a statute or a contractual provision to the contrary, the American rule precluded the plaintiff from

recovering any of its attorney’s fees or costs of litigation

in this case. The plaintiffresponded that its earlier attorney’s fees and expenses were recoverable as compensatory damages because, like medical bills incurred to

cure a physical injury resulting from a defendant’s negligence, they were incurred to cure a legal harm resulting

from the defendant’s negligence. The plaintiff sought to

distinguish between the legal fees and costs it incurred

during its settlement negotiations with CATIC and Terry

Road on the underlying claim against NPL Investment

and the legal fees and costs it incurred in bringing the

present action against the defendant, emphasizing that

it was seeking to recover only the former. On those

grounds, the plaintiff argued that damages it sought

here for its prior attorney’s fees and expenses were

elements of compensatory damages, which, because

they were incurred in a different legal proceeding, were

not barred by the American rule.

The trial court, Wiese, J., disagreed. In its second

memorandum of decision, the trial court held that there

was no statutory authority or contractual term that

permitted the plaintiff to recover attorney’s fees in this

action. The court further held that it was unable to find

any case law to support the plaintiff’s position that

attorney’s fees may be considered a measure of compensatory damages under the facts of this case. On

those grounds, the trial court held that the American

rule barred the plaintiff’s claim for additional compensatory damages in this action.

On appeal, the plaintiff claims that the trial court

misinterpreted the scope of the American rule and

improperly applied it to reject the plaintiff’s claim for

compensatory damages in the amount of the attorney’s

fees and expenses it incurred to investigate and settle

the claims of Terry Road and CATIC against NPL Investment as a result of the defendant’s negligence. The

defendant argues that a party seeking common-law

indemnification is precluded from seeking attorney’s

fees and expenses where the party has failed to notify

the defendant of the underlying action.17 We agree with
the plaintiff.

We begin with our standard or review. Ordinarily,

‘‘we review the trial court’s decision to award attorney’s

fees for abuse of discretion. . . . This standard applies

to the amount of fees awarded . . . and also to the trial

court’s determination of the factual predicate justifying

the award.’’(Internal quotation marks omitted.)ACMAT

Corp. v. Greater New York Mutual Ins. Co., 282 Conn.

576, 582, 923 A.2d 697 (2007). ‘‘When, however, a damages award is challenged on the basis of a question of

law, our review is plenary.’’ Motherway v. Geary, 82

Conn. App. 722, 726, 846 A.2d 909 (2004). The plaintiff

alleges that the trial court misinterpreted the American

rule when it denied the plaintiff’s request for attorney’s

fees. As such, the plaintiff’s claim presents a question

of law, as to which our review is plenary.

‘‘The general rule of law known as the American

rule is that attorney’s fees and ordinary expenses and

burdens of litigation are not allowed to the successful

party absent a contractual or statutory exception. . . .

This rule is generally followed throughout the country

. . . [and] Connecticut adheres to the American rule.’’

(Internal quotation marks omitted.) ACMAT Corp. v.

Greater New York Mutual Ins. Co., supra, 282 Conn.

582. There are, however, several recognized exceptions

to this rule. Id., 582, 592–93 (noting that claims of vexatious litigation and an insurer’s bad faith refusal to

defend fall outside the purview of the American rule);

see also Mangiante v. Niemiec, 98 Conn. App. 567,

570–72, 910 A.2d 235 (2006) (recognizing certain ‘‘limited equitable exceptions to the American rule,’’ and

permitting beneficiary to recover attorney’s fees

incurred in action against trustee for self-dealing). With

regard to expenses incurred in separate legal proceedings, our Supreme Court has stated that ‘‘[t]here is substantial authority . . . that attorney’s fees incurred in

other litigation against a third party, which are awarded

as an element of compensatory damages, do not fall

within the contemplation of the American [r]ule.’’ Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 97 n.31, 952

A.2d 1 (2008); see also 1 D. Dobbs, Remedies (2d Ed.

1993) § 3.10 (3) (‘‘It is commonly stated as a rule that

when the defendant’s breach of duty to the plaintiff

involves the plaintiff in litigation with third parties, the

defendant is held liable for the costs of that litigation,

including attorney’s fees. . . . The fact that the plaintiff himself initiates the litigation with third persons

. . . does not preclude recovery, so long as the plaintiff

is acting reasonably to protect interests put in doubt or

jeopardy by the defendant’s breach of duty.’’ [Footnote

omitted.]). This approach fully comports with the purpose of the American rule, which is to encourage parties

to litigate claims in good faith without fear that the

losing party will ultimately shoulder the legal expenses

incurred by the prevailing party in the same action. See

ACMAT Corp. v. Greater New York Mutual Ins. Co.,
supra, 592.

In this case, the plaintiff is seeking to recover only

those attorney’s fees and expenses that it incurred during its settlement negotiations with Terry Road and

CATIC, in an action entirely distinct from the present

case. An award of such attorney’s fees and expenses

would not discourage parties from litigating their present claims in good faith, and thus an award of this

nature would not undermine the policy of the American

rule. We further agree with the plaintiff that an award

of these damages would merely return the plaintiff to

same position it would have occupied absent the defendant’s negligence and, as such, these damages are compensatory in nature. See id.; see also Chapman Lumber,

Inc. v. Tager, supra, 288 Conn. 97 n.31 (rejecting defendant’s argument that ‘‘the court improperly allowed the

jury to consider the costs of collection expended by

the plaintiff . . . [in a prior proceeding] as an element

of damages’’). Accordingly, we conclude, on the facts

here presented, that the trial court erred in holding

that the plaintiff was barred by the American rule from

recovering additional compensatory damages for the

fees and costs it reasonably incurred in an earlier action

to defend its insured against claims by third parties,

arising from the defendant’s negligence in conducting

a title search, that they had superior title to Flemming’s property.18

The judgment is reversed only as to the award of

damages for attorney’s fees and related litigation

expenses, and the case is remanded for a further hearing

in damages on that issue; the judgment is affirmed in

all other respects.

In this opinion the other judges concurred.

1 The plaintiff, Chicago Title, merged with its predecessor, Ticor Title,

prior to June 21, 2011.

2 At an unspecified date between July 13, 2006, and March 18, 2008, Flemming’s mortgage was assigned to NPL Investment.

3

‘‘The general rule of law known as the American rule is that attorney’s

fees and ordinary expenses and burdens of litigation are not allowed to

the successful party absent a contractual or statutory exception.’’ (Internal

quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins.

Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).

4 The plaintiff has not appealed the trial court’s denial of its claim for

prejudgment interest.

5

In its motion to reargue, dated January 8, 2014, the defendant argued,

inter alia, that the trial court erroneously failed to analyze the plaintiff’s

claim as a claim for an implied contract of indemnity. See Seismograph

Service (England), Ltd. v. Bolt Associates, Inc., 8 Conn. App. 446, 453, 513

A.2d 180 (1986); see also Sendroff v. Food Mart of Connecticut, Inc., 34

Conn. Supp. 624, 626, 381 A.2d 565 (1977). Although the defendant’s reply

brief refers to this legal theory, it failed to adequately raise this issue in its

main brief. ‘‘Because the defendant failed to raise this issue in his main

brief, it is abandoned.’’ State v. Richardson, 291 Conn. 426, 431, 969 A.2d

166 (2009). Accordingly, our analysis is limited to the applicability of the

theory of common-law indemnification to the facts presented this case.

6 See footnote 8 of this opinion, noting that the McCalop deed was later

corrected to reflect, inter alia, that the property is located in Hartford.

7 Subsequent to the issuance of the policy but prior to the investigation

of the disputed claim, Ticor Title merged with and was succeeded by the

plaintiff, Chicago Title. See footnote 1 of this opinion.

8 The corrective deed, which was signed on July 6, 2006, stated, inter alia:
‘‘I, LEROY R. McCALOP of 1417 Stafford Avenue, Bristol, Connecticut 06010

for consideration of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00)

DOLLARS received to my full satisfaction of JOSEPH M. DAVIS of 15 June

Street, East Hartford, Connecticut do give, grant, bargain, sell and confirm

unto the said JOSEPH M. DAVIS . . . all that certain piece or parcel of

land . . . situated in the Town of Hartford, County of Hartford and State

of Connecticut, known as 108–110 Webster Street . . . . IN WITNESS

WHEREOF, we have hereunto set our hands and seals this 19th day of May,

2004.’’ Notably, the grantee’s name was changed from Leroy R. McCalop to

Joseph M. Davis, and further, the property’s description was changed from

‘‘Town of East Hartford, Connecticut’’ to ‘‘Town of Hartford, Connecticut.’’

The deeds were identical in every other respect.

9

‘‘Generally, a notice of lis pendens is simply a notice that, when properly

recorded, warns third parties, such as prospective purchasers, that the title

to the property is in litigation . . . . In a foreclosure of a . . . lien . . .

the lis pendens does not create an interest that is separate and distinct from

the underlying interest being foreclosed. The sole purpose of the lis pendens

in such an action is to give constructive notice to persons who may subsequently acquire an interest in the property, and cause them to be bound by

the proceedings.’’ (Citations omitted; internal quotation marks omitted.)

Ghent v. Meadowhaven Condominium, Inc., 77 Conn. App. 276, 284–85,

823 A.2d 355 (2003).

10 As previously stated, the record does not reveal when Chicago Title

merged with Ticor Title. See footnote 7 of this opinion. The record shows,

however, that the plaintiff, Chicago Title, was the entity that conducted the

investigation into CATIC’s and Terry Road’s counterclaims. For ease of

reading, we refer to both Ticor Title and Chicago Title as the plaintiff

henceforth.

11 Because we conclude that common-law indemnification is inapplicable

to this case, we need not address the issue of whether a party seeking

common-law indemnification is required to provide notice of the underlying

action, or whether a failure to do so requires the indemnitee to prove its

actual liability for the underlying damages.

12 Under Kaplan, ‘‘a [plaintiff] seeking indemnification must establish that:

(1) the third party against whom indemnification is sought was negligent;

(2)the third party’s active negligence,ratherthan the [plaintiff’s] own passive

negligence, was the direct, immediate cause of the accident and the resulting

harm; (3) the third party was in control of the situation to the exclusion of

the [plaintiff] seeking reimbursement; and (4) the [plaintiff] did not know

of the third party’s negligence, had no reason to anticipate it, and reasonably

could rely on the third party not to be negligent.’’(Footnote omitted.) Valente

v. Securitas Security Services, USA, Inc., 152 Conn. App. 196, 204, 96 A.3d

1275 (2014).

13 There are several circumstances where an indemnitee’s passive negligence may arise as a matter of law. See, e.g., Skuzinski v. Bouchard Fuels,

Inc., 240 Conn. 694, 699–700, 694 A.2d 788 (1997); Bristol v. Dickau Bus

Co., supra, 63 Conn. App. 774; Gianquitti v. Sheppard, 53 Conn. App. 72,

74–75, 78–79, 728 A.2d 1133 (1999). These circumstances, however, arise

where: (1) by virtue of a special relationship, the indemnitee is found to

have owed and breached a special duty of care to the original plaintiff; see

Skuzinski v. Bouchard Fuels, Inc., supra, 704–706 (holding that the thirdparty defendant, as a business owner, owed the original plaintiff, its customer, a duty to maintain and clean the sidewalks but that, on the basis of

the facts alleged, no reasonable juror could find that the business owner

exercised exclusive control over the public street where the customer was

struck by the third-party plaintiff’s truck); or (2) by virtue of a special

relationship, the indemnitee is held vicariously liable for the indemnitor’s

negligent conduct. See, e.g., Bristol v. Dickau Bus Co., supra, 774 (holding

that passive negligence ‘‘encompasses parties who were allegedly negligent

in their management or supervision of others and thus financially responsible

for the active negligence of the others’’); Gianquitti v. Sheppard, supra,

74–75, 78–80 (commercial lessee deemed passively negligent for injury sustained by lessee’s employee on leased premises). Neither circumstance,

however, is implicated by the facts of this case. We thus find no support

for the defendant’s argument that the plaintiff’s passive negligence arose

as a matter of law.

14 Although the relevant authorities and case law qualify that corrective

deeds may not relate back when a third party’s interest is prejudiced, we

are reminded that the only third party interest implicated by the corrective

deed was held by Terry Road. It cannot be argued that they were prejudiced
by the operation of such correction, as this deed, in effect, validated and

affirmed their title pursuant to the quitclaim deed.

15 See footnote 8 of this opinion.

16 See footnote 3 of this opinion.

17 The defendant cites Gianquitti v. Sheppard, supra, 53 Conn. App. 81–82,

for the proposition that this court has considered whether a plaintiff seeking

common-law indemnification must give notice of the prior action and

whether a failure to do so disallows the recovery of attorney’s fees. Because

we conclude that common-law indemnification is inapplicable to this case;

see part I of this opinion; we conclude that the defendant’s reliance on

Gianquitti is misplaced.

18 We construe, as do the parties, the trial court’s rejection, under the

American rule, of the plaintiff’s claim for additional compensatory damages

in this action, to apply equally to expenses incurred for attorney’s fees and

for related litigation expenses. Although the court mentioned only attorney’s

fees in its second memorandum of decision, the parties have consistently

discussed both parts of the plaintiff’s claim together, both in the trial court

and before this court on appeal.