Allstate Ins. Co. v. Palumbo (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** ALLSTATE INSURANCE CO. v. PALUMBO CONCURRENCE ROGERS, C. J., concurring. I agree with the conclusion of the majority and the dissent that the trial court improperly failed to exercise its discretion when it failed to balance the equities to determine whether the particular facts of this case weigh in favor of subrogation. Because this is a question of equity, however, I believe we should remand the case to the trial court rather than decide for ourselves whether subrogation is proper. The majority and the dissent both claim there is no need to remand this case to the trial court because the equities are so one-sided that there is only one proper conclusion for the trial court to reach. Yet, after weighing the equities, the majority and the dissent reach opposite conclusions regarding the direction in which the equities tip. Because the majority and the dissent are able to make plausible arguments in support of completely opposite results, there is clearly room for the trial court to exercise its discretion on remand. The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. (Internal quotation marks omitted.) Wasko v. Manella, 269 Conn. 527, 542, 849 A.2d 777 (2004). It is well established that the authority to exercise [such] judicial discretion . . . is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court in its exercise. . . . Nothing short of a conviction that the action of the trial court is one which discloses [a] clear abuse of discretion can warrant our interference. (Internal quotation marks omitted.) National Elevator Industry Pension, Welfare & Educational Funds v. Scrivani, 229 Conn. 817, 823, 644 A.2d 327 (1994). To determine whether the plaintiff, Allstate Insurance Company, has a subrogation right, the trial court must balance the equities by accounting for the many factors relating to the expectations of the parties and potential economic waste. See DiLullo v. Joseph, 259 Conn. 847, 851, 792 A.2d 819 (2002). Rarely will a reviewing court find that there is only one right answer when a trial court makes such a determination based on multiple concerns. See Wasko v. Manella, supra, 269 Conn. 543 ( In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court s] action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. [Citations omitted; internal quotation marks omitted.]). This is particularly so with questions of equity. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994) ( [t]his limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court ). Moreover, we afford trial courts broad discretion to make determinations requiring the balancing of multiple factors because trial courts are often in a better position to make this type of determination. See, e.g., Hannon v. Redler, 117 Conn. App. 403, 417, 979 A.2d 558 (2009) ( the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties [internal quotation marks omitted]); see also New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 667, 927 A.2d 333 (2007) ( [W]hether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. . . . The defendants are entitled to an opportunity to make their case for attorney s fees, but this court is not the proper forum for that presentation. [Citation omitted; internal quotation marks omitted.]). Although I agree with the majority s determination that the equities weigh heavily in favor of the named defendant, Stephen Palumbo,1 the question of what equity requires in a given situation is often a question on which reasonable minds can differ. Therefore, in my view, the trial court has discretion based on its observations and findings to balance the equities subject to an abuse of discretion review by this court. Accordingly, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to reverse the judgment of the trial court and to remand the case to that court for further proceedings according to law. 1 See footnote 1 of the majority opinion.
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