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JEFFREY NELSON v. TRADEWIND AVIATION, LLC

(AC 34625)

(AC 34838)

Keller, Mullins and Bear, Js.

Argued September 26, 2014—officially released February 24, 2015

(Appeal from Superior Court, judicial district of

Ansonia-Milford, Doherty, J.)

Jeffrey J. Tinley, with whom were Amita S. Patel,

and, on the brief, Stephen E. Pliakas, for the appellantappellee (defendant).

Stephen J. Fitzgerald, with whom was Joshua R.

Goodbaum, for the appellee-appellant (plaintiff).
Opinion

BEAR, J. In this consolidated appeal, the defendant,

Tradewind Aviation, LLC, appeals from the judgment

of the trial court rendered following a jury trial in favor

of the plaintiff, Jeffrey Nelson, and the plaintiff cross

appeals from the court’s punitive damages award and

its decision to reserve the question of statutory prejudgment interestforitself instead of the jury. The defendant

claims on appeal that the court improperly (1) denied

its amended motion for judgment notwithstanding the

verdict and to set aside the verdict, (2) failed to recognize that an absolute privilege should attach to the

alleged defamatory statements, (3) failed to conclude

that the element of malice, required to defeat its qualified privilege and to find defamation and intentional

interference with a business expectancy, could not be

proven because of the mandatory nature of its alleged

defamatory disclosures under the Pilot Records

Improvement Act of 1996, 49 U.S.C. § 44703 (h) (2012)

(PRIA), and (4) granted the plaintiff’s motion for punitive damages. In his cross appeal, the plaintiff claims

that the court improperly (1) awarded punitive damages

in an amount that was less than his cost of litigation, and

(2) failed to instruct the jury on statutory prejudgment

interest. We affirm the judgment of the court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to our

review. The defendant hired the plaintiff as a second

in command pilot on April 12, 2007. The plaintiff

attended the defendant’s mandatory training program,

passed its ‘‘ground school,’’ and successfully completed

a ‘‘flight check ride’’ with the defendant’s owner in May,

2007. As a second in command pilot, the plaintiff had

a number of responsibilities, including assisting the

pilot in command, collecting, weighing, and loading the

passengers’ baggage, and checking the balance of the

total weight in the plane to ensure that its distribution

was safe for flying. Over the course of the summer of

2007, the plaintiff copiloted 137 flights from New York

and New Jersey to Martha’s Vineyard and Nantucket,

and he worked with a total of thirteen different pilots in

command. All of the passengers on those flights arrived

safely at their destinations, and none complained about

the plaintiff’s performance.

If one of the defendant’s pilots was unable to fly

safely, Kaj Wren, the defendant’s chief pilot, would have

removed him or her from flying status.1 Similarly, the

plaintiff’s immediate supervisor, assistant chief pilot

Adam Schaefer, had the authority to remove a pilot

from a flight if he observed that the pilot was not competent to fly safely. Neither Wren nor Schaefer ever

removed the plaintiff from flying status for a performance based reason or disciplinary reason. Although

some senior pilots did complain about the plaintiff,

he was never given a written warning, disciplined, or
suspended. Additionally, the plaintiff was never offered

or sent for any additional training after he completed

ground school.

The defendant operated six planes at a time during

the 2007 summer season because of an increased

demand for its services. During the following six month

off-season, however, it operated only two planes, which

meant that the number of employed pilots was cut from

eighteen to six. At a meeting on August 28, 2007, the

defendant’s owner announced that he had more pilots

than he needed for the upcoming off-season, and that

there would be layoffs, with preference for continued

employment given to those pilots who committed to

stay for the full off-season. The plaintiff was concerned

by that announcement because he was the ‘‘least experienced’’ among the recently hired pilots. The plaintiff

subsequently committed to continue his employment

for only one-half of the off-season.

Around this time, the defendant also required that

the plaintiff submit to a random drug test. Schaefer

requested the test because he believed the plaintiff was

on drugs that day, as the plaintiff had bloodshot eyes,

was fidgety, and was avoiding eye contact. The decision,

however, had nothing to do with the plaintiff’s performance as a pilot, and the testreport indicated the reason

for the test was ‘‘random selection.’’ The plaintiff’s test

came back negative. The plaintiff never violated the

defendant’s drug or alcohol policy.

On September 7, 2007, Schaefer told the plaintiff that

the defendant would be unable to continue to employ

him. Schaefer said nothing about the plaintiff’s performance and suggested that the plaintiff might wish to

resign because it would ‘‘look better’’ to future employers. The plaintiff decided not to resign because it would

render him ineligible for unemployment benefits, and,

therefore, he was laid off. Schaefer gave the plaintiff a

packet of unemployment paperwork and told him to

go to the defendant’s human resources office to complete it. The defendant’s human resources office supervised the completion of the paperwork, which reflected

that the plaintiff was laid off due to ‘‘Lack of Work.’’2

In December, 2007, the plaintiff interviewed with and

was offered a job by Republic Airways (Republic). As

part of his initial interview, the plaintiff completed and

signed three forms required by PRIA. The first form,

titled ‘‘Air Carrier and Other Records Request (PRIA),’’

authorized the defendant to provide Republic’s third

party representative, Phenix Group, Inc. (Phenix), with

the plaintiff’s records. The second form, titled ‘‘Authorization for Release of [Department of Transportation]

Drug and Alcohol Testing Records Under PRIA and

Maintained Under Title 49 Code of Federal Regulations

(49 CFR) Part 40,’’ authorized the defendant to provide

Phenix with copies of the plaintiff’s drug and alcohol

testing records. The final form, titled ‘‘Airman Notice
and Right to Receive Copy—Air Carrier and Other

Records (PRIA),’’ required that the defendant notify the

plaintiff that his records were requested within twenty

days of the request, provide the plaintiff with a complete

copy of all of the documents provided to Phenix, and

allow the plaintiff an opportunity to submit written

comments to correct any inaccuracies in the records.

The defendant received the plaintiff’s PRIA forms on

December 24, 2007. Schaefer responded on behalf of

the defendant, and faxed to Phenix the completed

‘‘Request for PRIA Pilots Records’’ form and accompanying records on January 16, 2008. In response to the

first question on the form, which asked ‘‘[w]hat is the

applicant’s current employment status with your company or affiliates,’’ Schaefer checked the box, ‘‘Terminated (Involuntary).’’ The fifth question read: ‘‘Within

the past five years, has the applicant ever been removed

from flying status for any performance or professional

competency reason?’’ Schaefer responded, ‘‘Yes.’’ After

this form was faxed to Phenix, Julia Irving, a Republic

employee, called Schaefer asking for information pertaining to the plaintiff’s termination, and Schaefertransferred the call to Wren. After completing the telephone

call with Irving, Wren instructed Schaefer to draft a

letter that was faxed directly to Irving later that day.

The letter stated: ‘‘[The plaintiff] was terminated on

September 7, 2007, after he failed to perform to the

company standard. Prior to that date he was given several opportunities to discuss the need for improvement

as well as additional training to help him perform at

the levels we needed.’’

On January 17, 2008, the defendant faxed the plaintiff’s negative drug test report from the summer of 2007

directly to Irving with a cover sheet that stated: ‘‘[The

plaintiff’s] probable cause drug test result. The [defendant] was concerned that poor performance may have

been caused by the use of drugs.’’

The defendant did not notify the plaintiff within

twenty days of December 24, 2007, that the PRIA

records request had been received.Additionally, despite

receiving the plaintiff’s request to receive a complete

copy of all of the documents sent to Republic, the defendant sent to the plaintiff copies of only the records from

his successful training. The defendant did not send the

plaintiff a copy of its response to the ‘‘Request for PRIA

Pilots Records’’ form that it sent to Phenix, which

included the statements that he was terminated involuntarily and that he had been removed from flying status

for performance or professional competency reasons.

Similarly, the defendant did not send to the plaintiff a

copy of the letter it sent directly to Republic, which

stated that the plaintiff was terminated for failure to

perform to the company standard and that he had been

given opportunities to discuss the need for improvement. The defendant additionally did not provide the
plaintiff with a copy of the negative drug test report and

the accompanying cover sheet that were sent directly

to Republic. According to the PRIA forms, it was the

defendant’s obligation to send the plaintiff a complete

copy of the records that it had sent to Republic. Because

the defendant failed to send copies of all of these documents to the plaintiff, the plaintiff did not know about

the additional records that the defendant had sent to

Republic. Republic revoked its job offer to the plaintiff

on January 17, 2008.

The plaintiff commenced this action against the

defendant on December 19, 2008, and the case was tried

to a jury in October, 2011. The jury found the defendant

liable for defamation with malice and for intentional

interference with a business expectancy. The jury found

that the plaintiff proved by a preponderance of the

evidence that the defendant published a defamatory

statement about the plaintiff to Republic in January,

2008, that the defamatory statement was false, and that

it was published with malice.3 The jury further found

that the plaintiff proved by a preponderance of the

evidence that he had a reasonable potential opportunity

of entering into an employment relationship with

Republic, that the defendant was aware of that, and

that the defendant intentionally interfered with the

plaintiff’s potential employment relationship with malice or out of some other improper motive. The jury

awarded the plaintiff a total of $307,332.94 in damages,

which consisted of $207,332.94 in economic damages

and $100,000 in noneconomic damages. Furthermore,

the jury found that the plaintiff was entitled to punitive

damages. The court thereafter denied the defendant’s

amended motions to set aside the verdict, for judgment

notwithstanding the verdict, and for remittitur, and

thereupon rendered judgment for the plaintiff in accordance with the jury’s verdict. The court then awarded

$100,000 in punitive damages. These appeals followed.

Additional facts and procedural history will be set forth

as necessary.

I

DEFENDANT’S APPEAL

In its appeal, the defendant claims that the court

improperly (1) denied its amended motion for judgment

notwithstanding the verdict and to set aside the verdict,

(2) failed to recognize that an absolute privilege should

attach to the alleged defamatory statements, (3) failed

to conclude that the element of malice, required to

defeat its qualified privilege and to find defamation and

intentional interference with a business expectancy,

could not be proven because of the mandatory nature

of its alleged defamatory disclosures under PRIA, and

(4) granted the plaintiff’s motion for punitive damages.

We disagree.

A
The defendant first claims that the court improperly

denied its amended motion for judgment notwithstanding the verdict and to set aside the verdict because

none of the alleged statements by the defendant are

defamatory as a matter of law and, therefore, cannot

support either of the plaintiff’s claims of defamation or

intentional interference with a business expectancy.

We disagree.

The following additional procedural history is relevant to this claim. On October 14, 2011, the jury returned

a verdict in favor of the plaintiff on both the defamation

and tortious interference claims. On October 24, 2011,

the defendant filed a motion seeking a remittitur, and

a motion for judgment notwithstanding the verdict and

to set aside the verdict on the following grounds: (1)

the defendant did not cause damage to the plaintiff, (2)

any damage the defendant caused to the plaintiff would

have resulted from the plaintiff’s own actions, (3) the

court improperly admitted hearsay statements, (4) the

evidence was speculative, and (5) the court should take

judicial notice of the plaintiff’s prior admission that he

was discharged, and not laid off.

More than three months after the jury returned its

verdict, on January 27, 2012, the defendant moved to

amend its motion for judgment notwithstanding the

verdict and to set aside the verdict. In its amended

motion, the defendant argued for the first time in the

case: ‘‘The plaintiff’s arguments centering on the alleged

defamatory statements fail as a matter of law, because

the statement that an employee was ‘Terminated (Involuntary)’ or ‘terminated . . . after he failed to perform

to the company standard,’ cannot, as a matter of law,

be libelous. The plaintiff argued to the jury that the

defendant’s action in checking a box in a ‘Request for

PRIA Records’ marked ‘Terminated (Involuntary)’ was

maliciously defamatory. . . . In addition, the plaintiff

argued that the statement to Republic Airways that

‘[The plaintiff] was terminated on September 7, 2007,

after he failed to perform to the company standard’ was

also maliciously defamatory. . . . These statements

are not defamatory as a matter of law.’’ On February

6, 2012, the plaintiff objected to the defendant’s motion

to amend, but the court overruled the plaintiff’s objection and granted the motion to amend, stating that the

‘‘[c]ourt allows defendant’s motion to amend the motion

to set aside verdict and will take into consideration

plaintiff’s argument as to why such amendment is insufficient to permit the court to set aside the verdict.’’4

The court denied the defendant’s motion for remittitur and amended motion for judgment notwithstanding

the verdict and to set aside the verdict on May 1, 2012,

and the defendant appealed on May 18, 2012.5 On

December 20, 2011, the plaintiff filed a motion to set

punitive damages and for statutory prejudgment interest pursuant to General Statutes § 37-3a. On June 29,
2012, the court awarded the plaintiff $100,000 in punitive damages, but declined to award prejudgment interest. On July 17, 2012, the defendant amended its appeal

to incorporate the court’s judgment awarding punitive

damages. On July 18, 2012, the plaintiff filed a cross

appeal challenging the court’s punitive damages award

and the court’s refusal to allow the jury to decide

whether prejudgment interest should be awarded.

On November 28, 2012, the defendant filed a motion

for articulation of the court’s decision denying its

amended motion for judgment notwithstanding the verdict and to set aside the verdict, and, on November 30,

2012, the plaintiff moved to consolidate his appeal and

the defendant’s appeal. On January 16, 2013, this court

dismissed, on its own motion, the defendant’s original

appeal for lack of a final judgment6 and granted the

plaintiff’s motion to consolidate. On June 11, 2013, the

court denied the defendant’s motion for articulation.

The defendant filed a motion for review of the denial

of its motion for articulation on June 21, 2013.

On July 24, 2013, this court granted review, but denied

the relief requested. In the interim, however, on July 9,

2013, the court issued an amended articulation stating:

‘‘On June 11, 2013, this court (Doherty, J.) denied the

defendant’s motion for articulation. This court hereby

amends that order as follows. Said articulation, dated

June 11, 2013, is amended for the limited purpose of

stating the fact that the court did not fail to consider

and rule upon any of the issues raised in the defendant’s

amended motion for judgment notwithstanding the verdict/motion to set aside the verdict dated January 27,

2012. The court did, in fact, consider each and every

issue raised in the said amended motion and concluded

that none of the issues raised therein were sufficient

to permit the court to set aside the verdict. Having

made this amendment, the articulation of June 11, 2013,

remains otherwise unchanged.’’ On July 25, 2013, the

defendant filed a motion for review of the court’s

amended articulation. This court granted the motion

for review, but denied the relief sought on September

11, 2013.

We first set forth the legal principles and relevant

standard of review that inform our analysis. ‘‘It is well

settled that a libel is actionable per se if it charges

improper conduct or lack of skill or integrity in one’s

profession or business and is of such a nature that it

is calculated to cause injury to one in his profession

or business.’’ Proto v. Bridgeport Herald Corp., 136

Conn. 557, 566, 72 A.2d 820 (1950); see also Gaudio v.

Griffin Health Services Corp., 249 Conn. 523, 543–44,

733 A.2d 197 (1999)(No dispute that statements in letter

of termination accusing plaintiff of ‘‘display[ing] bad

judgment and [violating] established procedures regarding restraint of a patient’’ are per se defamatory. [Internal quotation marks omitted.] ‘‘[T]hey [charge]
improper conduct or lack of skill or integrity in one’s

profession or business and [are] of such a nature that

[they are] calculated to cause injury to one in his profession or business.’’ [Internal quotation marks omitted.]).

‘‘Whether words are actionable per se is a question of

law for the court. . . . All of the circumstances connected with the publication of defamatory charges

should be considered in ascertaining whether a publication was actionable per se. The words used, however,

must be accorded their common and ordinary meaning,

without enlargement by innuendo.’’(Citations omitted.)

Miles v. Perry, 11 Conn. App. 584, 602–603, 529 A.2d

199 (1987).

On appeal, the defendant argues that its alleged statements that the plaintiff was ‘‘Terminated (Involuntarily),’’ ‘‘failed to perform to the company standard,’’

and ‘‘was given several opportunities to discuss the

need for improvement as well as additional training to

help him perform at the levels we needed’’ are not

actionable defamatory statements as a matter of law.

The defendant argues that‘‘[t]he rule has achieved virtually universal recognition that an employer’s statement

that an employee has been ‘discharged’ (or ‘fired’ or

‘terminated’ or a substantively similar statement) is not

actionable as a matter of law.’’ The defendant also

argues that the statements that the plaintiff was subjected to a ‘‘probable cause drug test’’ because ‘‘the

[defendant] was concerned that poor performance may

have been caused by the use of drugs’’ are not actionable

as defamation. The defendant argues that the statements were expressions of opinion regarding the plaintiff’s ability to meet the defendant’s subjective

performance requirements and, therefore, are not

defamatory as a matter of law.

In light of the statements made and the manner in

which the statements were made, we conclude that

the evidence reasonably supported, and that the jury

reasonably could have concluded, that the statements

‘‘[charged] improper conduct or lack of skill or integrity

in one’s profession or business and [are] of such a

nature that [they are] calculated to cause injury to one in

his profession or business.’’ (Internal quotation marks

omitted.) Gaudio v. Griffin Health Services Corp.,

supra, 249 Conn. 544.

Although the defendant on appeal relies on the opinions it cited to the trial court, and a number of additional

opinions that were not brought to the attention of the

trial court,7 we note that most of those opinions are

not binding on this court or the trial court for various

reasons; see, e.g., Porter v. Orient Ins. Co., 72 Conn.

519, 529, 45 A. 7 (1900) (‘‘while a State may make laws

binding its own citizens . . . it cannot so bind citizens

of other States’’ [internal quotation marks omitted]);

McDonald v. Rowe, 43 Conn. App. 39, 43, 682 A.2d 542

(1996) (‘‘[t]rial court cases do not establish binding
precedent’’); and furthermore, we note that the facts

in those opinions are distinguishable from the facts of

this case that the jury reasonably could have found, or

they involve applications of law that differ from our

law. Unlike the cases relied upon by the defendant

which involve neutral statements, a retraction and subsequent correction of the error, or which were resolved

based on law that is different than the law in Connecticut; see footnote 7 of this opinion; the present case

involves intentionally false information included in several nonprivileged statements that were published to a

potential employer and hidden from the plaintiff by

the defendant, despite his documented request for a

complete copy of the records provided by the defendant

to that potential employer. We, therefore, reject the

defendant’s claim that the alleged statements were not

actionable as defamation as a matter of law.

B

The defendant next claims that the court improperly

failed to recognize that an absolute privilege should

attach to the alleged defamatory statements. The defendant argues that the statements should have been protected by an absolute privilege, because the defendant

was required to make the statements under PRIA and

because of the policy considerations underlying absolute privilege—‘‘ ‘encouraging the free flow of information’ ’’ and protecting those who are required to speak

so as not to curtail communication. We decline to reach

the merits of this claim because the defendant failed

to raise it to the trial court.

‘‘It is well established that an appellate court is under

no obligation to consider a claim that is not distinctly

raised at the trial level. . . . [B]ecause our review is

limited to matters in the record, we [also] will not

address issues not decided by the trial court. . . . Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170–71, 745

A.2d 178 (2000); see also Practice Book § 60-5 ([t]he

court shall not be bound to consider a claim unless it

was distinctly raised at the trial or arose subsequent

to the trial). The requirement that [a] claim be raised

distinctly means that it must be so stated as to bring

to the attention of the court the precise matter on which

its decision is being asked. . . . State v. Colon, 82

Conn. App. 658, 659, 847 A.2d 315, cert. denied, 269

Conn. 915, 852 A.2d 745 (2004); accord Sgueglia v. Milne

Construction Co., 212 Conn. 427, 432 n.5, 562 A.2d 505

(1989); see also McKiernan v. Caldor, Inc., 183 Conn.

164, 166, 438 A.2d 865 (1981) (issue briefly suggested

in trial court is not distinctly raised). The reason for

the rule is obvious: to permit a party to raise a claim

on appeal that has not been raised at trial—after it is

too late for the trial court . . . to address the claim—

would encourage trial by ambuscade, which is unfair

to both the trial court and the opposing party.’’ (Emphasis in original; internal quotation marks omitted.)
Remillard v. Remillard, 297 Conn. 345, 351–52, 999 A.2d

713 (2010).

A review of the record reveals that this claim was

never raised before the court or the jury. We, therefore,

decline to review it.

C

The defendant next claims that the court improperly

failed to conclude that the element of malice, required

to defeat its qualified privilege as a former employer

and to find defamation and intentional interference with

a business expectancy, could not be proven, because

the mandatory nature of its alleged defamatory disclosures under PRIA negates the intent necessary to prove

malice. The defendant argues that it communicated

with Republic because of the plaintiff’s PRIA request

and with the plaintiff’s consent to do so, and that ‘‘there

is no evidence that [the defendant] did or would publish

any information about [the plaintiff’s] job performance

or the reasons for his termination to Republic absent

the PRIA mandate and [the plaintiff’s] request.’’8 We

disagree.

We begin by setting forth the relevant legal principles

and the proper standard for our review. ‘‘A defamatory

statement is defined as a communication that tends to

harm the reputation of another as to lower him in the

estimation of the community or to deter third persons

from associating or dealing with him . . . . To establish a prima facie case of defamation, the plaintiff must

demonstrate that:(1)the defendant published a defamatory statement; (2) the defamatory statement identified

the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the

statement.’’ (Internal quotation marks omitted.)

Gambardella v. Apple Health Care, Inc., 291 Conn. 620,

627–28, 969 A.2d 736 (2009).

‘‘A defendant may shield himself from liability for

defamation by asserting the defense that the communication is protected by a qualified privilege. . . . When

considering whether a qualified privilege protects a

defendant in a defamation case, the court must resolve

two inquiries. . . . The first is whether the privilege

applies, which is a question of law over which our

review is plenary. . . . The second is whether the

applicable privilege nevertheless has been defeated

through its abuse, which is a question of fact. . . . In

a defamation case brought by an individual who is not

a public figure, the factual findings underpinning a trial

court’s decision will be disturbed only when those findings are clearly erroneous, such that there is no evidence in the record to support them.’’ (Citations

omitted.) Id., 628–29.

Our Supreme Court has recognized ‘‘a qualified privilege forthe employmentreferences of current orformer
employers that were solicited with the employee’s consent.’’ (Emphasis added.) Miron v. University of New

Haven Police Dept., 284 Conn. 35, 45, 931 A.2d 847

(2007). ‘‘[T]he integrity of employment references not

only is essential to prospective employers, but also to

prospective employees, who stand to benefit from the

credibility of positive recommendations.’’ Id., 45–46. ‘‘It

also would encourage a culture of silence not to afford

a qualified privilege to employment references that are

made in good faith and without improper motive.’’9

(Internal quotation marks omitted.) Id., 46.

‘‘As a general matter, a qualified privilege in a defamation case may be defeated if it can be established that

the holder of the privilege acted with malice in publishing the defamatory material. . . . [Our Supreme Court]

has held that malice is not restricted to hatred, spite

or ill will against a plaintiff, but includes any improper

or unjustifiable motive. . . . Consistent with this broad

view, for more than 100 years, [our Supreme Court]

has concluded that a qualified privilege is lost upon a

showing of either actual malice, i.e., publication of a

false statement with actual knowledge of its falsity or

reckless disregard for its truth, or malice in fact, i.e.,

publication of a false statement with bad faith or

improper motive.’’(Citations omitted; emphasis in original; internal quotation marks omitted.) Gambardella v.

Apple Health Care, Inc., supra, 291 Conn. 630.

‘‘[A]ctual malice requires a showing that a statement

was made with knowledge that it was false or with

reckless disregard for its truth. . . . A negligent misstatement of fact will not suffice; the evidence must

demonstrate a purposeful avoidance of the truth. . . .

Further, proof that a defamatory falsehood has been

uttered with bad or corrupt motive or with an intent

to inflict harm will not be sufficient to support a finding

of actual malice . . . although such evidence may

assist in drawing an inference of knowledge or reckless

disregard of falsity.’’ (Citations omitted; internal quotation marks omitted.) Id., 637–38.

Pursuant to PRIA, an air carrier looking to hire an

individual as a pilot must request and receive, inter alia,

certain records from any air carrier or person who has

employed that individual as a pilot of a civil or public

aircraft during the five year period preceding the date

of the employment application. 49 U.S.C. § 44703 (h)

(2012). The records to be provided include, but are

not limited to, records pertaining to ‘‘(I) the training,

qualifications, proficiency, or professional competence

of the individual, including comments and evaluations

made by a check airman designated in accordance with

section 121.411, 125.295, or 135.337 of [title 14, Code of

Federal Regulations]; (II) any disciplinary action taken

with respect to the individual that was not subsequently

overturned; and (III) any release from employment or

resignation, termination, or disqualification with
respect to employment.’’ 49 U.S.C. § 44703 (h) (1) (B)

(i) and (ii) (2012). The records shall be provided ‘‘not

later than [thirty] days after receiving the request.’’ 49

U.S.C. § 44703 (h) (5) (2012). An air carrier requesting

such records ‘‘shall be required to obtain written consent to the release of those records from the individual

that is the subject of the records requested . . . .’’ 49

U.S.C. § 44703 (h) (2) (A) (2012). The individual who

is the subject of the records shall be provided ‘‘(A) on

or before the 20th day following the date of receipt of

the request, written notice of the request and of the

individual’s right to receive a copy of such records; and

(B) . . . a copy of such records, if requested by the

individual.’’ 49 U.S.C. § 44703 (h) (6) (A) and (B) (2012).

‘‘An air carrier that maintains or requests and receives

the records . . . shall provide the individual with a

reasonable opportunity to submit written comments to

correct any inaccuracies contained in the records

before making a final hiring decision with respect to

the individual.’’ 49 U.S.C. § 44703 (h) (9) (2012).

In the present case, the alleged defamatory statements included: (1) checking the box ‘‘Terminated

(Involuntarily)’’ in response to the question ‘‘[w]hat is

the applicant’s current employment status with your

company or affiliates’’;(2)responding ‘‘Yes’’ to the question ‘‘[w]ithin the past five years, has the applicant ever

been removed from flying status for any performance

or professional competency reason’’; (3) sending the

following letter to Republic: ‘‘[The plaintiff] was terminated on September 7, 2007, after he failed to perform

to the company standard. Prior to that date he was

given several opportunities to discuss the need for

improvement as well as additional training to help him

perform at the levels we needed’’; and (4) sending the

following cover letter with the plaintiff’s negative drug

results: ‘‘[The plaintiff’s] probable cause drug testresult.

The [defendant] was concerned that poor performance

may have been caused by the use of drugs.’’

A review of the evidence reveals that the jury reasonably could have concluded that the defendant’s defamatory statements were made with knowledge that they

were false and with an improper motive. The jury reasonably could have found that the plaintiff was laid off

due to lack of work, that neither Wren nor Schaefer

ever removed the plaintiff from a flight for performance

or professional competency reasons, that the plaintiff

was never offered or sent for any additional training,

that the decision to send the plaintiff for a drug test

had nothing to do with the plaintiff’s performance as

a pilot, and that the drug testreport indicated the reason

for the test was ‘‘random selection.’’ Additionally, the

jury reasonably could have found that the statements

were made with an improper motive in light of the

timing and manner in which the statements were made.

Despite receiving the plaintiff’s request to receive a

complete copy of all of the documents sent to Republic,
the defendant did not send the plaintiff a copy of the

completed ‘‘Request for PRIA Pilots Records’’ that

stated he was terminated involuntarily and that he had

been removed from flying status for performance or

professional competency reasons, a copy of the letter

that stated he was terminated for failure to perform to

the company standard and had been given opportunities

to discuss the need for improvement, or a copy of the

negative drug test report and cover sheet that stated

he was sent for the test because he was suspected of

using drugs.

‘‘In determining whether there was sufficient evidence to show actual malice, we are mindful that litigants have a constitutional right to have issues of fact

determined by the jury. . . . And so the credibility of

the witnesses and the weight to be accorded their testimony is a matter for the jury to decide. Further, we

refrain from choosing among inferences as this is

another jury function.’’ (Citation omitted.) Dacey v.

Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d

125 (1976). Accordingly, we conclude that there was

sufficient evidence to support the jury’s finding that the

alleged defamatory statements were made with malice.

The defendant argues that the mandatory nature of its

alleged defamatory statements under PRIA negates the

intent necessary to prove malice. This argument, however, assumes that an employer who is required or mandated to make a disclosure cannot act with malice. That

assumption is simply not accurate. A qualified privilege

is provided for those disclosures made ‘‘in good faith

and without improper motive.’’ Miron v. University of

New Haven Police Dept., supra, 284 Conn. 46. There

was sufficient evidence from which the jury could find

the defendant abused and forfeited its qualified

privilege.

D

The defendant’s final claim is that the court improperly awarded punitive damages because the jury’s finding of actual malice is unsupported by the evidence.

We disagree.

The following additional facts are relevant. On

December 20, 2011, the plaintiff filed a motion to set

the punitive damages award in accordance with the

jury’s verdict and statutory prejudgment interest pursuant to § 37-3a. On June 29, 2012, in a short order, the

court stated: ‘‘After a review of the record, trial preparation, trial proceedings including the verdict after trial

and the claims of the plaintiff for punitive damages in

the form of attorney’s fees,the court awards the plaintiff

punitive damages in the amount of $100,000. The court

declines to award statutory prejudgment interest.’’ On

July 17, 2012, the defendant amended its appeal to incorporate the court’s judgment awarding punitive

damages.
We first set forth the relevant standard of review

and the legal principles that inform our analysis. ‘‘In

awarding punitive damages . . . [t]he trial court has

broad discretion in determining whether damages are

appropriate. . . . Its decision will not be disturbed on

appeal absent a clear abuse of discretion.’’ (Internal

quotation marks omitted.) Gleason v. Smolinski, 149

Conn. App. 283, 313, 88 A.3d 589, cert. granted, 312

Conn. 920, 94 A.3d 1201 (2014). ‘‘[P]unitive damages

are allowable in a libel action where malice is established . . . .’’ Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966); see also

Gambardella v. Apple Health Care, Inc., supra, 291

Conn. 628 (‘‘to recover punitive damages, a plaintiff

must prove actual malice, regardless of whether the

plaintiff is a public figure’’).

In light of our determination in part I C of this opinion,

that there was sufficient evidence to support the jury’s

finding of actual malice, we conclude that the court did

not abuse its discretion in awarding punitive damages.

II

PLAINTIFF’S CROSS APPEAL

In his cross appeal, the plaintiff claims that the court

improperly (1) awarded punitive damages in an amount

that was less than his cost of litigation and (2) failed

to instruct the jury on statutory prejudgment interest.

We disagree.

The following facts and procedural history are relevant to our review of these claims. On October 14, 2011,

after a seven day trial, the jury returned a verdict for

the plaintiff on both counts. The jury found that the

plaintiff suffered damages as a result of the defendant

maliciously publishing a defamatory statement about

the plaintiff and tortiously interfering with his potential

employment relationship with Republic. The jury

awarded the plaintiff a total award of $307,332.94, which

consisted of $207,332.94 in economic losses and

$100,000 in noneconomic losses. The jury also found

that the court should award punitive damages because,

as stated in the jury interrogatory, ‘‘[the plaintiff] proved

by a preponderance of the evidence that [the defendant]

acted with intentional design to injure [the plaintiff] or

with reckless disregard [as] to whether [its] conduct

would injure [the plaintiff].’’ The amount of punitive

damages was to be set by the court. Additionally, in his

request to charge, submitted prior to jury deliberations,

the plaintiff sought a jury interrogatory on prejudgment

interest under § 37-3a. The defendant’s request to

charge and proposed verdict form indicated that the

question of prejudgment interest should be decided by

the court, and not be presented to the jury. The court

agreed with the defendant,refused to charge the jury on

the issue of interest, and reserved the question foritself.

Accordingly, on December 20, 2011, the plaintiff filed
a motion to set the punitive damages award and for

statutory interest. In support of his motion, the plaintiff

submitted a memorandum of law and two affidavits,

along with exhibits consisting of invoices and receipts

for litigation costs and attorney’s fees. The plaintiff

asked the court to set punitive damages in an amount

equal to his litigation costs, which he claimed totaled

$123,390.98, and to award prejudgment interest in an

amount consistent with § 37-3a and the demands of

equity. On February 17, 2012, the defendant filed an

objection to the plaintiff’s motion, arguing for a $7666.50

reduction for an unreasonable hourly rate, a $3878.45

reduction for an unnecessary deposition, and a $5894.88

reduction for the expenses incurred by the plaintiff

having to litigate the case in Connecticut, rather than

his home state of Oregon. If the court adopted the

defendant’s arguments and deducted its suggested

amounts, it would have awarded punitive damages of

$105,951.15.

On June 29, 2012, the court issued a short order

stating: ‘‘After a review of the record, trial preparation,

trial proceedings including the verdict after trial and

the claims of the plaintiff for punitive damages in the

form of attorney’s fees, the court awards the plaintiff

punitive damages in the amount of $100,000. The court

declines to award prejudgment interest.’’ On November

30, 2012, the plaintiff filed a motion for articulation,

and on June 11, 2013, the court provided the following

articulation: ‘‘The court declines to award prejudgment

interest, which is discretionary under § 37-3a . . . .

[T]he court finds that $100,000 is a reasonable award

of punitive damages by way of attorney’s fees in this

case.’’ The plaintiff did not file a motion for review of

the court’s articulation.

A

The plaintiff first claims that the court improperly

awarded punitive damages in an amount that was less

than his cost of litigation.10 The plaintiff argues that the

court never calculated his litigation costs, but ‘‘[r]ather

the court looked at the plaintiff’s extensive evidence

of fees and costs totaling $123,390.98, compared it to

the defendant’s proposed fees and costs of $105,951.06,

and decided—in seemingly arbitrary fashion—to award

punitive damages of $100,000.’’ The plaintiff argues that

the court’s award bore no relation to the amounts submitted by either party. We disagree.

Our standard of review for an award of punitive damages is well settled. ‘‘[T]he trial court has broad discretion in determining whether damages are appropriate.

. . . Its decision will not be disturbed on appeal absent

a clear abuse of discretion.’’ (Internal quotation marks

omitted.) Lyons v. Nichols, 63 Conn. App. 761, 767,

778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d

1244 (2001).
‘‘If awarded, punitive damages are limited to the costs

of litigation less taxable costs, but, within that limitation, the extent to which they are awarded is in the

sole discretion of the trier. . . . Limiting punitive damages to litigation expenses, including attorney’s fees,

fulfills the salutary purpose of fully compensating a

victim for the harm inflicted on him while avoiding

the potential for injustice which may result from the

exercise of unfettered discretion by a jury.’’ (Citations

omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammdi, 270 Conn. 291, 335, 852

A.2d 703 (2004).

Afterreviewing the evidence in the record concerning

the attorney’s fees and costs incurred by the plaintiff,

we are unable to conclude that an award of $100,000

in punitive damages constituted an abuse of discretion.

‘‘The trial judge who awarded punitive damages is the

same judge who presided over the entire trial and posttrial proceedings, and, therefore, he had a firm knowledge from which to make a reasonable determination

as to the time and resources necessary . . . to pursue

[these] claim[s].’’ Id., 337. We, therefore, conclude that

the court did not abuse its discretion in awarding

$100,000 in punitive damages.

B

The plaintiff next claims that the court improperly

failed to instruct the jury on prejudgment interest pursuant to § 37-3a. The plaintiff argues that the court improperly invaded the province of the jury because his

entitlement to interest was a factual determination that

should have been submitted to the jury. The plaintiff

argues that the jury properly could have awarded prejudgment interest because it could have found that the

defendant owed the plaintiff the salary he would have

earned at Republic had the defendant not tortiously

interfered with his employment. The plaintiff argues,

therefore, that the appropriate remedy is to remand to

the court for the empanelment of a new jury to consider

an award of statutory prejudgment interest. We

disagree.

Section 37-3a (a) provides in relevant part: ‘‘[I]nterest

at the rate of ten per cent a year, and no more, may be

recovered and allowed in civil actions . . . as damages

for the detention of money after it becomes payable.’’

Section 37-3a (b) provides in relevant part: ‘‘The awarding of interest in such cases is discretionary.’’ (Emphasis added.) Whether interest should be awarded

pursuant to § 37-3a is ‘‘a jury question in those cases

that involve damages for the detention of money after it

becomes payable.’’ (Emphasis added; internal quotation

marks omitted.) Foley v. Huntington Co., 42 Conn. App.

712, 738, 682 A.2d 1026, cert. denied, 239 Conn. 931,

683 A.2d 397 (1996). Thus, the question is whether the

present case is one that involved damages forthe deten-
tion of money after it became payable.

‘‘In the jury cases . . . in which prejudgment interest

was properly a jury question . . . the underlying

claims were for liquidated sums due for services or

services and materials or for reimbursement of specific

sums.’’ (Citations omitted; emphasis added.) Id., 739.

‘‘Section 37-3a provides a substantive right that applies

only to certain claims. . . . It does not allow prejudgment interest on claims that are not yet payable, such

as awards for punitive damages . . . or on claims that

do not involve the wrongful detention of money, such

as personal injury claims . . . . Under § 37-3a, an

allowance of prejudgment interest turns on whether

the detention of the money is or is not wrongful under

the circumstances. . . . There are well established

propositions that § 37-3a provides forinterest on money

detained after it becomes due and payable, that the

question under that statute is whether the money was

wrongfully withheld . . . . The statute, therefore,

applies to claims involving the wrongful detention of

money after it becomes due and payable.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) Id., 739–40. Therefore, ‘‘[t]o award § 37-3a

interest, two components must be present. First, the

claim to which the prejudgment interest attaches must

be a claim for a liquidated sum of money wrongfully

withheld and, second, the trier of fact must find, in its

discretion, that equitable considerations warrant the

payment of interest.’’ (Internal quotation marks omitted.) Reyes v. Chetta, 143 Conn. App. 758, 770, 71 A.3d

1255 (2013).

‘‘Personal injury claims seek to make persons whole

by monetarily compensating them for a loss negligently

caused by others. Damages are typically uncertain and

the purpose of the damages is to restore the injured,

as nearly as money can, to the status they were enjoying

and would have continued to enjoy priorto the negligent

act. Such claims do not seek to regain money detained

by another.’’ Foley v. Huntington Co., supra, 42 Conn.

App. 741–42.

The damages sought in the present case for defamation and tortious interference with a business expectancy are similar to the damages sought in a personal

injury claim in negligence. The damages sought were

in an unliquidated sum, and were not already payable

or being wrongly withheld. See Reyes v. Chetta, supra,

143 Conn. App. 770–71 (court’s award of prejudgment

interest was improper for claim of tortious interference

with business expectancy because plaintiff did not

assert claim for liquidated sum of money that had been

wrongfully withheld from him). On the basis of our

review of the record, we conclude that § 37-3a does not

apply to these facts and that, therefore, the plaintiff

was not entitled to an award of prejudgment interest

pursuant to the statute. Accordingly, the court did not
err in reserving and deciding the question.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that, although Wren was not called as a witness at trial, portions

of his deposition were read into the record for the jury’s consideration. See

generally Practice Book § 13-31.

2 The defendant opposed the plaintiff’s application for unemployment

benefits. In its opposition, the defendant stated that: ‘‘[The plaintiff] was

let go for failure to meet the company standard. [The plaintiff] repeatedly

arrived at work late, his uniform was not neat, and he failed to fly to

commercial standards.’’ The plaintiff did not claim this statement as actionable defamation at trial because he did receive unemployment benefits, and,

therefore, did not suffer any special damages.

3 We note that written interrogatories were provided to and answered by

the jury in this case.

4 We note that, prior to trial, the defendant did not file a motion to strike

arguing that the complaint was legally insufficient because the statements

did not constitute defamation as a matter of law. Additionally, although the

defendant filed a motion for summary judgment, motions in limine, and a

‘‘motion to dismiss’’ for failure to make out a prima facie case, this argument

was not raised in any of those motions. The argument was also not raised

as a special defense, and the defendant did not request or submit jury

interrogatories on its special defenses. Finally, the defendant did not make

the argument in its original motion for judgment notwithstanding the verdict

and to set aside the verdict.

5 Although the defendant appealed from the denial of its motion forremittitur, it does not raise any arguments related to that motion on appeal. As a

result, any claims arising out of the denial of that motion are abandoned.

See Gosselin v. Gosselin, 110 Conn. App. 142, 151, 955 A.2d 60 (2008).

6 At the time the defendant’s original appeal was filed, the court had not

yet decided the amount of punitive damages and the plaintiff’s claim for

prejudgment interest. In dismissing the defendant’s original appeal, this

court relied on Balf Co. v. Spera Construction Co., 222 Conn. 211, 211–12,

608 A.2d 682 (1992) (no final judgment where claim for discretionary award

of prejudgment interest pending at trial court), and Lord v. Mansfield, 50

Conn. App. 21, 24, 28, 717 A.2d 267 (no final judgment where amount of

punitive damages not determined), cert. denied, 247 Conn. 943, 723 A.2d

321 (1998). Lord was subsequently reversed by Hylton v. Gunter, 313 Conn.

472, 479, 97A.3d 970 (2014)(‘‘a judgment of the trial court awarding commonlaw punitive damages limited to attorney’s fees is final, despite the fact that

the court has not yet determined the amount of those fees’’).

7 We note that the defendant cited three opinions to the trial court in its

amended motion for judgment notwithstanding the verdict and to set aside

the verdict—Terry v. Hubbell, 22 Conn. Supp. 248, 167 A.2d 919 (1960),

Ricci v. Crowley, 333 Mass. 26, 127 N.E.2d 652 (1955), and Elias v. Youngken,

493 A.2d 158 (R.I. 1985). The additional case citations provided by the

defendant in its appellate briefs include, Daley v. Aetna Life & Casualty

Co., 249 Conn. 766, 734 A.2d 112 (1999); Rafalko v. University of New Haven,

129 Conn. App. 44, 19 A.3d 215 (2011); Mamou v. Trendwest Resorts, Inc.,

165 Cal. App. 4th 686, 81 Cal. Rptr. 3d 406 (2008); Miles v. Banc of America

Securities, California Court of Appeal, First District, Docket No. A111086

(June 27, 2007) (2007 WL 1830791); Gould v. Maryland Sound Industries,

Inc., 31 Cal. App. 4th 1137, 37 Cal. Rptr. 2d 718 (1995); Jensen v. HewlettPackard Co., 14 Cal. App. 4th 958, 18 Cal. Rptr. 2d 83 (1993); Taradash v.

Adelet/Scott-Fetzer Co., 260 Ill. App. 3d 313 (1993); Welch v. Tellabs Operations, Inc., Superior Court of Massachusetts, Middlesex County, Docket No.

00-617E (Sept. 24, 2001) (14 Mass. L. Rptr. 44); Gant v. Mahoney, Dougherty,

Mahoney, Court of Appeals of Minnesota, Docket No. C6-90-571 (July 31,

1990)(1990 WL 105956); and Larson v. Sysco Corp., 767 P.2d 557 (Utah 1989).

8 The defendant also argues that the plaintifffailed to prove malice because

where the named defendant is an organization, such as a limited liability

company, the plaintiff carries the burden of identifying the individual within

the organization that acted with malice. The plaintiff notes that the defendant

failed to preserve this argument at trial. We agree with the plaintiff. ‘‘[This

court] ordinarily do[es] not address issues that have not been properly raised

before the trial court.’’ Willow Springs Condominium Assn., Inc. v. Seventh

BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998); Practice Book

§ 60-5 (‘‘[t]he court shall not be bound to consider a claim unless it was

distinctly raised at the trial or arose subsequent to the trial’’).
9

In the present case, the plaintiff signed forms authorizing the defendant

to provide his employment records to Republic. The trial on this issue,

therefore, centered on whether the defendant abused and forfeited its qualified privilege by acting with malice. The plaintiff claimed that the defendant

was angered by and acted maliciously after his successful claim for unemployment compensation benefits, which the defendant had discouraged him

from making. The plaintiff also claimed that some of the defendant’s statements were beyond the scope of the employment records protected by the

PRIA qualified privilege.

10 The defendant argues that the record is not adequate for review of this

claim because the plaintiff never filed a motion for review of the court’s

articulation. We disagree. Practice Book § 61-10 (a) provides in relevant

part, ‘‘[i]t is the responsibility of the appellant to provide an adequate record

for review.’’ In addition to copies of both of the court’s orders pertaining

to the award of punitive damages, the plaintiff has provided a copy of all

of the documents, affidavits, and exhibits submitted to the court. These

documents provide an adequate record for the resolution of the plaintiff’s

claim as to the amount of the punitive damages award. Accordingly, we

review this claim on the merits.