Benistar Employer Services Trust Co. v. Benincasa , 189 Conn. App. 304 ( 2019 )

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BENISTAR EMPLOYER SERVICES TRUST
COMPANY ET AL. v. JAMES J.
BENINCASA ET AL.
(AC 40081)
Lavine, Alvord and Prescott, Js.
Syllabus
The plaintiffs sought to vacate an arbitration award in favor of the defen-
dants, who filed a motion to confirm the award, pursuant to which an
arbitrator had awarded the defendants monetary damages relating to
the purchase of certain life insurance policies by the plaintiffs on behalf
of the defendants. The trial court denied the plaintiffs’ application to
vacate the award, granted the defendants’ motion to confirm the award
and rendered judgment thereon, from which the plaintiffs appealed to
this court. Held:
1. The plaintiffs could not prevail on their claim that the award should have
been vacated because it was not timely issued, which was based on
their claim that the award was not made within thirty days from the
close of the hearing as required by statute (§ 52-416 [a]); given that the
plaintiffs had informed the arbitrator of their intention to file counter-
claims and to initiate a separate arbitration arising out of the same facts
and circumstances at issue in the present arbitration, and had asked
the arbitrator to keep the matter open after the next week’s hearings
and to refrain from issuing any award in connection with those hearings,
so that they could assert their claims and consolidate the arbitration
matters, the trial court properly determined that the arbitrator reason-
ably awaited the closing of the hearing in expectation of the submission
of the additional arbitration, and it was reasonable for the arbitrator to
close the hearing on April 18, 2013, as it only then became clear that
the two arbitrations could not be consolidated, and closing the hearing
after the determination that the cases could not be consolidated was
consistent with the public policy that favors arbitration for efficiency and
economic reasons, and was a reasonable interpretation of the previously
stated intentions of the plaintiffs, who did not object until May 13, 2013,
which reasonably led the arbitrator to conclude that he was prolonging
the hearings with the consent of the parties.
2. The plaintiffs could not prevail on their claim that because the arbitration
award was predicated on a manifest disregard of the law, the trial court
improperly denied their application to vacate the award; the plaintiffs’
claim that the arbitrator’s award was in manifest disregard of the law
relied on the argument that the arbitrator ignored contract law in his
improper factual determination that elements of a contract existed, it
was clear from the award that the arbitrator considered the plaintiffs’
argument but disagreed with it, and it was not for this court to review
the evidence or otherwise second-guess the arbitrator’s factual determi-
nation where, as here, the arbitration submission was unrestricted.
3. The plaintiffs’ claim that the arbitration award should have been vacated
because it was not mutual, final and definite was unavailing: the award
definitively set the liability and legal responsibility of the plaintiffs, even
though it did not determine a precise amount of damages, which could
not be determined by the arbitrator because the damages had yet to be
calculated by the Internal Revenue Service (IRS), and given that the
parties were well aware of the nature of the involvement of the IRS
when they agreed to have the matter resolved through arbitration, to
vacate the award when it was as final and definite as existing circum-
stances permitted would have undermined the strong public policy
favoring arbitration as a means of resolving disputes; moreover, the fact
that the arbitrator retained jurisdiction to interpret and resolve any
disputes arising from the final effectuation of his ruling did not under-
mine the finality of the award.
4. The trial court properly denied the plaintiffs’ application to vacate the
arbitration award on public policy grounds; the arbitrator’s conclusion
that the transfer of the life insurance policies to the defendants created
a tax liability that would not have otherwise been imposed but for the
transfer did not violate an explicit, well-defined, and dominant public
policy of this state but, rather, was a factual finding that this court could
not reverse or second-guess.
Argued December 10, 2018—officially released April 23, 2019
Procedural History
Application to vacate an arbitration award, brought
to the Superior Court in the judicial district of Hartford,
where the defendants filed a motion to confirm the
award; thereafter, the matter was tried to the court,
Noble, J.; judgment denying the application to vacate
and granting the motion to confirm, from which the
plaintiffs appealed to this court. Affirmed.
Daniel J. Krisch, with whom were Logan A. Car-
ducci and, on the brief, Daniel P. Scapellati, for the
appellants (plaintiffs).
Mark J. Kallenbach, pro hac vice, with whom was
Jerome Patger, for the appellees (defendants).
Opinion
LAVINE, J. The plaintiffs, Benistar Employer Services
Trust Company (BESTCO) and Benistar Admin Ser-
vices, Inc. (BASI), appeal from the judgment of the trial
court denying their application to vacate and granting
a motion to confirm an arbitration award in favor of
the defendants, James J. Benincasa and Jody L.
Benincasa. On appeal, the plaintiffs claim that the court
improperly denied the application to vacate the arbitra-
tion award because the award was (1) not timely issued,
(2) predicated on a manifest disregard of the law, (3)
not mutual, final and definite, and (4) in violation of
public policy. We disagree and affirm the judgment of
the trial court.
The following undisputed facts, as found by the trial
court, and procedural history are relevant to this appeal.
‘‘The dispute which brought the parties to arbitration
involved the purchase of two $16 million individual
whole life insurance policies on the lives of the [defen-
dants], who were the president and vice president,
respectively, and sole owners of [Mortgages Unlimited,
Inc. (MUI)], an S corporation. The policies were pur-
chased by the Benistar 419 Plan and Trust (plan), a
multiple employer welfare benefit plan. The funding for
the purchase of the policies came from MUI’s participa-
tion in, and contributions to, the plan. BESTCO was
the plan sponsor, and BASI was the administrator of
the plan. The Plan was designed to comply with Internal
Revenue Code, 26 U.S.C. § 419A (f) (6). In its concep-
tion, the plan was to provide tax deductions to partici-
pating employers, such as MUI, for contributions paid
by them to the plan’s trust fund. The contributions, in
turn, funded the premiums for preretirement life insur-
ance policies for key employees under the plan. The
Plan issued a certificate of coverage to the employer,
MUI, listing the participants as the [defendants], each
of whom was to receive $16 million in death benefits.
In this case, MUI contributed [$700,000] annually to
fund the policies between 2001 and 2004, totaling $2.8
million. The contributions to the plans were, in fact,
claimed as tax deductions by MUI.
‘‘In 2004, MUI transferred the benefits and life insur-
ance policies from the plan to the Grist Mill Trust Wel-
fare Benefit Plan out of concern that the plan would
no longer support tax free contributions to the life insur-
ance policies. Benistar 419 Plan Services, Inc., was the
Grist Mill [Trust Welfare Benefit] Plan’s sponsor and
administrator. The [defendants], as participants, and
MUI, as employer, shortly thereafter, terminated their
participation in the Grist Mill Trust [Welfare Benefit
Plan], and the [defendants] took possession of the poli-
cies in their own names. The [defendants] were charged
$33,546.90 for the surrender of the policies.
‘‘The Commissioner of Internal Revenue (commis-
sioner) challenged the validity of the tax deductions
and ultimately issued the [defendants] a notice of defi-
ciency on their personal income taxes on the basis that
the contributions to the plan were payments on their
personal behalf and were not ordinary and necessary
business expenses of their employer, MUI, under 26
U.S.C. § 162 (a). The commissioner also asserted that
the distribution of the two life insurance policies
resulted in taxable income to the [defendants], which
they failed to report. In addition, the commissioner
imposed underpayment penalties pursuant to 26 U.S.C.
§ 6662A. . . .
‘‘The [defendants] filed a claim for arbitration against
the [plaintiffs]1 on November 29, 2007, asserting, among
other theories of liability, breach of contract for their
failure to provide a tax exempt vehicle to purchase the
life insurance policies. The arbitration was sought in
accordance with identical provisions found in the plan
Administration Agreement and the Grist Mill Trust Wel-
fare Benefit Plan Administration Fee Agreement, which
provided in relevant part: ‘Any dispute or controversy
arising under or in connection with this Agreement or
with respect to the Employer’s participation in the Plan
shall be settled by Arbitration, conducted by a single
arbitrator in New York City in accordance with the
rules of the American Arbitration Association [(AAA)]
then in effect. . . .’ The [defendants] submitted, inter
alia, breach of contract and fiduciary duty claims to
arbitration.
‘‘Evidence in the arbitration was taken on March 5
and 6, 2013, [before Arbitrator Jeffrey G. Stein]. The
arbitrator’s award dated May 15, 2013, was transmitted
to AAA on May 17, 2013. The award recited a prearbitra-
tion request by the [plaintiffs] to add a cross claim in
the context of the pending arbitration submittal, which
Stein had denied on the basis that the AAA rules
required them to file a separate arbitration and then
consolidate the cases. Stein declared in the award that
‘[o]n or about April 18, 2013 . . . the record was
closed.’ Substantively, Stein made the specific finding
that the [plaintiffs] ‘breached their promises and obliga-
tions to [the defendants] in numerous ways.’ Perti-
nently, this included a breach of the [plaintiffs’]
‘contractual fiduciary duties [by] failing to provide a
compliant 26 U.S.C. § 419A (f) (6) plan and, most specifi-
cally, by not determining the maximum amount of con-
tributions that could be contributed. . . . [The
plaintiffs] . . . failed to provide a tax free transfer of
the policy out of the plan to the [defendants].’ Stein
awarded the [defendants] the following damages: (1)
taxes, including 26 U.S.C. § 6662A taxes, as of the date
of the award attributable to ‘the transfer of the [life
insurance] polic[ies] as part of the exit strategy from
the failed Plan’; (2) ‘the $33,546.90 transfer fee’ for the
surrender of the policies; (3) the attorney’s fees for ‘the
legal defense of the [Internal Revenue Service (IRS)]
assessment’ . . . and (4) any state taxes assessed for
the transfer of the policies. Because the amount of the
federal and state taxes and penalties had not yet been
determined, and no findings as to such were made by
Stein, he retained jurisdiction to interpret and resolve
any disputes concerning the award. The parties moved
for clarification of the award. In the clarification, Stein
explained that the [defendants] had ‘not [yet] settled
with the IRS and, therefore, there [could be] no set
amount of taxes and penalties that could be awarded.’
Stein observed that his award detailed ‘each component
of the ultimate settlement [the defendants] [would]
reach with the IRS and which party is responsible for
that component. [Stein] believe[d] that [the award was]
specific and clear enough.’ ’’ (Footnotes added and
omitted.) Additional facts will be set forth as needed.
Before reaching the plaintiffs’ claims on appeal, we
underscore that the policy behind arbitration compels
a deferential standard of review of arbitration awards.
‘‘[T]he law in this state takes a strongly affirmative view
of consensual arbitration. . . . Arbitration is a favored
method to prevent litigation, promote tranquility and
expedite the equitable settlement of disputes. . . . As
a consequence of our approval of arbitral proceedings,
our courts generally have deferred to the award that
the arbitrator found to be appropriate. . . . The scope
of review for arbitration awards is exceedingly narrow.
. . . Additionally, every reasonable inference is to be
made in favor of the arbitral award and of the arbitra-
tor’s decisions. . . .
‘‘Despite the wide berth given to arbitrators and their
powers of dispute resolution, courts recognize three
grounds for vacating arbitration awards. . . . As a rou-
tine matter, courts review de novo the question of
whether any of those exceptions apply to a given award.
. . . The first ground for vacating an award is when
the arbitrator has ruled on the constitutionality of a
statute. . . . The second acknowledged ground is
when the award violates clear public policy. . . .
Those grounds for vacatur are denominated as com-
mon-law grounds and are deemed to be independent
sources of the power of judicial review. . . . The third
recognized ground for vacating an arbitration award is
that the award contravenes one or more of the statutory
proscriptions of . . . [General Statutes] § 52-418. . . .
‘‘Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
[ground] that . . . the interpretation of the agreement
by the arbitrators was erroneous. Courts will not review
the evidence nor, where the submission is unrestricted,2
will they review the arbitrators’ decision of the legal
questions involved. . . . In other words, [u]nder an
unrestricted submission, the arbitrators’ decision is
considered final and binding; thus the courts will not
review the evidence considered by the arbitrators nor
will they review the award for errors of law or fact.
. . . Furthermore, in applying this general rule of defer-
ence to an arbitrator’s award, [e]very reasonable pre-
sumption and intendment will be made in favor of the
[arbitral] award and of the arbitrators’ acts and proceed-
ings.’’ (Citations omitted; footnote altered; internal quo-
tation marks omitted.) Board of Education v. Local
R1-126, National Assn. of Government Employees, 108
Conn. App. 35, 39–41, 947 A.2d 371 (2008).
I
The plaintiffs claim that the trial court improperly
denied their application to vacate the arbitration award
because the award was not timely issued. Specifically,
the plaintiffs argue that the award was not made within
thirty days from the close of the hearing and, thus,
pursuant to General Statutes § 52-416 (a), the arbitra-
tion award has ‘‘no legal effect.’’ We disagree.
The standard of review for statutory interpretation
is well settled. ‘‘When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . .
‘‘Moreover, [t]his court will not reverse the factual
findings of the trial court unless they are clearly errone-
ous. . . . A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Citation omitted; internal quota-
tion marks omitted.) Petrucelli v. Travelers Property
Casualty Ins. Co., 146 Conn. App. 631, 635–36, 79 A.3d
895 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1164
(2014).
‘‘Section 52-416 addresses the time within which an
award must be rendered. Subsection (a) of § 52-416
provides: ‘If the time within which an award is rendered
has not been fixed in the arbitration agreement, the
arbitrator or arbitrators or umpire shall render the
award within thirty days from the date the hearing or
hearings are completed, or, if the parties are to submit
additional material after the hearing or hearings, thirty
days from the date fixed by the arbitrator or arbitrators
or umpire for the receipt of the material. An award
made after that time shall have no legal effect unless
the parties expressly extend the time in which the award
may be made by an extension or ratification in writ-
ing.’ ’’ Bumbolow v. Foreman, 151 Conn. App. 307, 316–
17, 95 A.3d 1153, cert. denied, 314 Conn. 916, 100 A.3d
405 (2014).
When reviewing the closing date of the hearing, ‘‘it
is apparent to us that we should test the arbitrator’s
decision [of the hearing’s closing date] by whether it
was reasonable, under the circumstances . . . to
extend the completion date of the hearing . . . .’’ Carr
v. Trotta, 7 Conn. App. 272, 276, 508 A.2d 799, cert.
denied, 200 Conn. 806, 512 A.2d 229 (1986).
In Carr, this court concluded that it was reasonable
for the completion date of the hearing to be extended
until the arbitrator received the transcript, as ‘‘a tran-
script aids the trier in the same manner as a brief does,
and that it is wholly consistent with good trial practice,
when the trier feels the need, to request a transcript
of the proceeding before rendering the decision.’’ Id.
Additionally, this court noted that ‘‘[t]here is no require-
ment that [the arbitrator] seek the consent of the parties
before [extending the completion date].’’ Id., 275. This
court also concluded in Shore v. Haverson Architec-
ture & Design, P.C., 92 Conn. App. 469, 475, 886 A.2d
837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988
(2006), that it was reasonable for an arbitrator to choose
a closing date that allowed the parties additional time
to submit further documentary evidence. And, in Bum-
bolow v. Foreman, supra, 151 Conn. App. 318–19, this
court found that it was reasonable for an arbitrator to
keep a hearing open in order to receive audit results.
The following additional facts, as found by the trial
court, are relevant to our resolution of the plaintiffs’
claim. ‘‘Rulings on dispositive motions were issued by
Stein on October 23, 2012. Joseph M. Pastore III, counsel
for the [plaintiffs], wrote to Stein to advise him that
the [plaintiffs] were going to file a counterclaim against
the [defendants] and a third-party claim against MUI for
indemnification. Stein replied by e-mail on November
7, 2012. While he deferred to Veneda Edenfield, AAA
senior case manager, as to the application of the AAA
rules, Stein expressed his belief that the [plaintiffs]
would need to file an arbitration demand and com-
mence an action which would, thereafter, be joined
with the arbitration before him. . . .
‘‘On February 28, [2013], Pastore wrote again to Stein,
indicating that the [plaintiffs] intended to initiate a sepa-
rate arbitration against the [defendants] to assert a vari-
ety of claims which arose out of the same facts and
circumstances at issue in the arbitration before Stein.
Pastore asked for a formal affirmation from Stein that
the [plaintiffs] would not be precluded from asserting
such a counterclaim in a subsequent AAA proceeding
or in a court of law. In the alternative, Pastore asked
that Stein keep the matter open after the hearings
scheduled for the following week and to refrain from
issuing any award in order to allow the [plaintiffs] to
assert their intended counterclaims, including a claim
for attorney’s fees, against the [defendants] in a sepa-
rate AAA arbitration, which could then be consolidated
with the pending action to allow further hearings on the
[plaintiffs’] claims against the [defendants] and/or MUI.
‘‘Stein replied on March 1, 2013, by e-mail: ‘I did not
preclude anyone from doing anything. What I said in
November, [2012], is that in arbitration you don’t file
a counterclaim or cross claim, you file a demand for
arbitration. I am not going to opine on the consequences
that stem from your failure to do so. I assume that if
you file a demand for arbitration in 2013 for a breach in
2004 your adversary will assert a [statute of limitations]
defense. Just guessing. As to claims for attorney’s fees,
let’s wait and see.’ On March 4, 2013, the [plaintiffs]3
filed such separate claims with [AAA against] the
[defendants] and MUI . . . .
‘‘The hearing on the [defendants’] claims in this arbi-
tration took place on March 5, 2013, and March 6, 2013.
On March 7, 2013, Stein wrote via e-mail that he thought
the facts were clear and the law already fully briefed
and resolved. ‘Unless you all strenuously object, I am
ready to issue an award and can do so in a matter of
weeks. If anyone still wants to send me something, let
me know, but otherwise [let’s] close this and get it
resolved quickly.’ By a later e-mail that day, Stein pro-
vided the parties with an opportunity to file posthearing
briefs through March 14, 2013. Although the record is
not clear, apparently later that day, Mark Kallenbach,
counsel for the [defendants], advised Stein that he had
received the [plaintiffs’] arbitration claims and asked
if Stein would hear a motion to dismiss the claims. Stein
replied, on that same date, that he had not been assigned
the case and would have no authority to rule on such
a motion. Pastore e-mailed Kallenbach and Stein, com-
menting that Stein did not procedurally have the author-
ity to rule on the new matter.
‘‘In response, Stein replied to all that he was aware of
the intent of the [plaintiffs] to consolidate their claims,
asked Edenfield as to the procedure for consolidation
and indicated that he would delay his decision. ‘I will
hold my hearing determination in abeyance awaiting
guidance from AAA.’ Stein, thereafter, e-mailed the par-
ties on March 15, 2013, to advise them that AAA
informed him that the [plaintiffs’] claim was not ‘a labor/
benefits case but rather a commercial case’ and that
the parties would receive a list of arbitrators from which
they would choose. Stein indicated that he believed he
would be on that list and that any motions made in that
file would be made to the chosen arbitrator. . . .
‘‘On April 17, 2013, Stein again e-mailed Kallenbach
and Pastore, indicating that he was informed by AAA
that another arbitrator had been selected in the new
case and he would, therefore, be issuing an opinion in
the case before him. On May 13, 2013, Pastore e-mailed
a letter to the AAA case manager, noting that the arbitra-
tion award had not been issued within thirty days, as
required by AAA Rule 30 and Connecticut law, that [the
plaintiffs] did not consent to the length of time it [was]
taking for the award to be rendered, and that Pastore
had not waived any future objection that the award
[was] untimely. In response to Pastore’s letter, Stein
replied that he had ‘told the parties that [he] was waiting
on assignment regarding the new arbitration and that
[he] would not begin to write the award until [he] heard
from the parties about possible assignment and consoli-
dation. No one objected to that.’ The award was dated
May 15, 2013, and e-mailed to Edenfield and counsel
for the parties on May 17, 2013. The award makes a
specific finding that ‘[a]t that time, on or about April
18, 2013, just before my scheduled trip to Europe, the
record was closed.’ This comment likely refers to Stein’s
e-mail of April 17, 2013, where he indicated that he
would be issuing an opinion.’’ (Emphasis added; foot-
notes added and omitted.)
The trial court applied the reasonableness standard
when reviewing the closing of the hearing and found
that ‘‘Stein reasonably awaited the closing of the hear-
ings in expectation of the submission of [the] additional
element [of the separate AAA arbitration]’’ and, there-
fore, concluded that the award was timely. The plaintiffs
argue that the trial court improperly interpreted § 52-
416 (a) and mistakenly concluded that the award was
timely because the statute is clear and unambiguous
that the award must be made within thirty days of the
date that the hearing was completed or the date fixed
for the receipt of material, and that ‘‘[t]he arbitration
ended March 6, [2013], and the [plaintiffs] submitted
their posthearing brief by March 14, 2013, yet the arbi-
trator did not render his decision until May 17, 2013.’’
Therefore, the plaintiffs argue, the trial court improp-
erly confirmed the award, as it was untimely as a matter
of law. We disagree.
Our case law is clear that the closing date of the
hearing is reviewed under a standard of reasonableness.
Carr v. Trotta, supra, 7 Conn. App. 276. In the present
matter, April 18, 2013, was a reasonable date for Stein
to close the hearing, as it only then became clear that
the two arbitrations could not be consolidated. Closing
the hearing after the determination that the cases could
not be consolidated is not only consistent with the
public policy that favors arbitration for efficiency and
economic reasons; see Remax Right Choice v. Aryeh,
100 Conn. App. 373, 381, 918 A.2d 976 (2007); but also
was a reasonable interpretation of the plaintiffs’ pre-
viously stated intentions. The plaintiffs had informed
Stein of their intention to file counterclaims and also
notified him of their intention to initiate a separate
arbitration. The plaintiffs asked him to ‘‘keep this matter
open after next week’s hearings, and refrain from issu-
ing any award in connection with next week’s hearings,
in order to allow the [plaintiffs] to assert their intended
claims . . . by initiation of a separate AAA arbitration,
which could then be consolidated with this action
. . . .’’ Further, although an arbitrator does not need
the consent of the parties to extend the completion
date of a hearing; see Carr v. Trotta, supra, 275; the
plaintiffs did not object until May 13, 2013, which rea-
sonably led Stein to conclude that he was prolonging
the hearings with the consent of the parties. Therefore,
we conclude that the trial court did not err in determin-
ing that the closing date of April 18, 2013, was reason-
able and that the award was timely.
II
The plaintiffs’ second claim is that the trial court
improperly denied their application to vacate the arbi-
tration award because the award was predicated on a
manifest disregard of the law. Specifically, the plaintiffs
argue that Stein ignored well settled contract law and
improperly concluded that a contract existed despite
the lack of elements necessary for a contract, and that
the trial court erred in upholding the award predicated
on that conclusion. We disagree.
Pursuant to § 52-418 (a) (4), an arbitration award
shall be vacated ‘‘if the arbitrators have exceeded their
powers or so imperfectly executed them that a mutual,
final and definite award upon the subject matter submit-
ted was not made.’’ ‘‘[A]n award that manifests an egre-
gious or patently irrational application of the law is an
award that should be set aside pursuant to § 52-418 (a)
(4) because the arbitrator has exceeded [his] powers
or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted
was not made.’’ (Internal quotation marks omitted.)
Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 306,
901 A.2d 1198 (2006). Our Supreme Court has empha-
sized that ‘‘the manifest disregard of the law ground
for vacating an arbitration award is narrow and should
be reserved for circumstances of an arbitrator’s extraor-
dinary lack of fidelity to established legal principles.
‘‘So delimited, the principle of vacating an award
because of a manifest disregard of the law is an
important safeguard of the integrity of alternat[ive] dis-
pute resolution mechanisms. Judicial approval of arbi-
tration decisions that so egregiously depart from
established law that they border on the irrational would
undermine society’s confidence in the legitimacy of the
arbitration process. . . . Furthermore, although the
discretion conferred on the arbitrator by the contracting
parties is exceedingly broad, modern contract princi-
ples of good faith and fair dealing recognize that even
contractual discretion must be exercised for purposes
reasonably within the contemplation of the contracting
parties. . . .
‘‘In Garrity [v. McCaskey, 223 Conn. 1, 9, 612 A.2d
742 (1992)], [our Supreme Court] adopted the test enun-
ciated by the United States Court of Appeals for the
Second Circuit in interpreting the federal equivalent of
§ 52-418 (a) (4). . . . The test consists of the following
three elements, all of which must be satisfied in order
for a court to vacate an arbitration award on the ground
that the arbitration panel manifestly disregarded the
law: (1) the error was obvious and capable of being
readily and instantly perceived by the average person
qualified to serve as an arbitrator; (2) the arbitration
panel appreciated the existence of a clearly governing
legal principle but decided to ignore it; and (3) the
governing law alleged to have been ignored by the arbi-
tration panel is well defined, explicit, and clearly appli-
cable.’’ (Internal quotation marks omitted.) Economos
v. Liljedahl Bros., supra, 279 Conn. 306–307.
When reviewing the plaintiffs’ argument that the
award was a manifest disregard of the law, the trial
court concluded that ‘‘the award is clear that Stein
considered all of the contracts and communications
between the parties. The award incorporated Stein’s
review of the plan, which claimed to provide ‘virtually
unlimited [tax] deductions for the employer’ and
asserted that deductions to the plan were tax deductible
as ordinary and necessary expenses of the business
pursuant to 26 U.S.C. § 162 (a). Although Stein did not
expressly state the basis for his determination that the
[plaintiffs] failed to provide a tax free transfer of the
policy out of the plan to the [defendants], the parties
have submitted a letter from the plan to participating
employers, which described the ability of the plan to
distribute a policy to a covered employee upon the
participating employer’s termination of participation in
the plan. The award is clear that Stein considered the
[plaintiffs’] argument that the [defendants] had no evi-
dence of a contract that was breached. He simply dis-
agreed. As such, these are findings of fact which the
court is not at liberty to reverse.’’ We agree.
The plaintiffs claim, in essence, that this court may
review the arbitrator’s ultimate determination because
it is not in alignment with contract law and the evidence
presented to the arbitrator. It is well settled that such
a claim ‘‘has no basis in arbitration law. . . . [Such an]
argument appears to be a thinly veiled attempt to have
the award vacated on the ground that it was not sup-
ported by any evidence presented at the hearings. . . .
[Our Supreme Court] considered a similar argument in
Milford Employees Assn. v. Milford, 179 Conn. 678,
684, 427 A.2d 859 (1980), wherein the plaintiffs
assert[ed] that, as a matter of law, the evidence required
a conclusion in their favor. In rejecting the plaintiffs’
argument, [our Supreme Court] noted that the plaintiffs
were essentially requesting a full trial on their claim,
which § 52-418 does not permit. . . . [Our Supreme
Court] explained: The parties freely bargained for the
remedy of arbitration in the event of a dispute of this
nature. Having done so, they are bound by the decision
lawfully rendered.’’ (Citations omitted; internal quota-
tion marks omitted.) AFSCME, Council 4, Local 2663
v. Dept. of Children & Families, 317 Conn. 238, 257–58,
117 A.3d 470 (2015). ‘‘[C]ourts do not review the evi-
dence or otherwise second-guess an arbitration panel’s
factual determinations when the arbitration submission
is unrestricted.’’ Industrial Risk Insurers v. Hartford
Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 96,
868 A.2d 47 (2005). The plaintiffs’ claim that Stein’s
award was in manifest disregard of the law relies on
the argument that Stein ignored contract law in his
improper factual determination that elements of a con-
tract existed. Therefore, we agree with the trial court’s
rejection of the plaintiffs’ argument that the award was
made in manifest disregard of law.
III
The plaintiffs’ third claim is that the trial court
improperly denied the application to vacate the arbitra-
tion award because the award was not mutual, final
and definite. Specifically, the plaintiffs argue that
because the defendants’ litigation with the IRS was
ongoing at the time of the award, there was not a definite
amount of taxes, penalties, or legal fees, as needed for
the award to be mutual, final and definite. We disagree.
‘‘In assessing whether an arbitrator has exceeded his
or her powers, the basic test has become the compari-
son of the award with the submission to determine
whether the award conforms to the submission.4 . . .
Conformity with § 52-418 also requires that the award
meet the minimum requirements of being mutual, final
and definite. [A]n award must be final as to the matters
submitted so that the rights and obligations of the par-
ties may be definitely fixed.’’ (Footnote added; internal
quotation marks omitted.) Board of Education v. Local
R1-126, National Assn. of Government Employees,
supra, 108 Conn. App. 42.
‘‘In support of its claim that the award is indefinite,
the board cites State v. AFSCME, Council 4, Local 1565,
49 Conn. App. 33, 713 A.2d 869 (1998), aff’d, 249 Conn.
474, 732 A.2d 762 (1999), and Rocky Hill Teachers’ Assn.
v. Board of Education, [72 Conn. App. 274, 804 A.2d
999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002)]
. . . . [These cases] hold that when future negotiations
are required by an arbitration award, that award is indef-
inite and fails to conform to the requirements of § 52-
418. In AFSCME, Council 4, Local 1565, the aggrieved
party was a correction officer who wrongly had been
dismissed from her job. The arbitration award ordered
the grievant to be reinstated at either the Niantic correc-
tional facility or at an alternate facility that would be
agreeable to all parties. This court concluded that the
language of the award was indefinite because it did not
specify an exact location for placement and, thus, left
the location for the placement open to negotiation, and,
therefore, it cannot be said to fix definitively the rights
and obligations of the parties. . . .
‘‘In Rocky Hill Teachers’ Assn., the issue was the
calculation of employee contributions for health and
dental care premiums. In the award, the arbitrator
ordered the parties to negotiate the issue of whether to
include the dental costs within the formula to determine
teacher contributions toward medical/health premi-
ums. In the event that said negotiations do not result
in an agreement between the parties within thirty (30)
days, I order the parties to submit this issue to binding
arbitration . . . . This court concluded in that case, as
in AFSCME, Council 4, Local 1565, that because the
award similarly required further negotiation, it thereby
failed to fix the rights and obligations of the parties
and was not final under § 52-418.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Board of Education v. Local R1-126, National Assn. of
Government Employees, supra, 108 Conn. App. 42–43.
Those two cases are distinguishable from the present
circumstances because in AFSCME, Council 4, Local
1565, and Rocky Hill Teachers’ Assn., the awards left
the determination of an issue submitted to the arbitrator
open to further negotiation when a more definite rem-
edy was available at the time. Here, upon review of the
subject matter submitted, we conclude that the present
situation differs, as the parties agreed to arbitrate at a
time when no more definite remedy was available.5
‘‘Section 52-418 (a) (4) provides that an award shall
be vacated if ‘the arbitrators have exceeded their pow-
ers or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted
was not made.’ In our construction of § 52-418 (a) (4),
[our Supreme Court has], as a general matter, looked
to a comparison of the award with the submission to
determine whether the arbitrators have exceeded their
powers.’’ (Emphasis added.) Garrity v. McCaskey,
supra, 223 Conn. 7.
The trial court found that ‘‘[t]he first element of dam-
ages definitely fixes the rights and obligations of the
parties with respect to taxes and penalties owed by the
[defendants] for the transfer of the policies from the
Grist Mill Trust Welfare Benefit Plan and its termina-
tion. The award clearly does not identify a specific
amount of damages but, as the [defendants] assert,
[w]hatever resulting amount is what it is, [and] the
[plaintiffs] are obliged to pay it as damages. The second
element of damages, the $33,546.90 transfer, admits of
no ambiguity. The obligation to pay the [defendants’]
legal defense costs for the IRS assessment is unambigu-
ously fixed as the legal responsibility of the [plaintiffs].
Similarly, any assessment of state taxes for the transfer
of the policies, whatever the amount, must be paid by
the [plaintiffs] as damages. The absence of a specific
dollar figure does not render the rights and obligations
in doubt as to who is entitled to receive or pay the
damages. The award provides sufficient guidance from
which the parties may identify the specific amounts of
payments. The amounts are those sums assessed by the
IRS and the appropriate state agency, as well as the
legal defense costs of the IRS assessment charged by
Attorney [Thomas] Brever. The [plaintiffs], therefore,
have adequate information from Stein’s decision to
effectuate the award. The submission of the arbitration
to Stein authorized him to use his own judgment and
discretion and to render an appropriate award. . . .
Stein exercised his judgment in effecting an award this
court finds to be final and definite.’’ (Citation omitted;
internal quotation marks omitted.)
We agree that the award definitively set the liability
and legal responsibility of the plaintiffs, even though it
did not determine a precise amount of damages. The
arbitrator could not possibly have determined the pre-
cise amounts, as they had yet to be calculated by the
IRS.6 We note that although the plaintiffs argue that
the unsettled amount of legal fees lacks definitiveness,
much of the plaintiffs’ argument focuses on Stein’s fac-
tual finding that the plaintiffs promised to pay legal
fees. As we have previously mentioned, ‘‘courts do not
review the evidence or otherwise second-guess an arbi-
tration panel’s factual determinations when the arbitra-
tion submission is unrestricted.’’ Industrial Risk
Insurers v. Hartford Steam Boiler Inspection & Ins.
Co., supra, 273 Conn. 96.
We also emphasize that in the present matter, the
subject matter submitted involved a contract dispute
and determination of damages while the settlement liti-
gation with the IRS was still ongoing. The parties were
well aware of the active nature of the involvement of
the IRS when they agreed to have the matter resolved
through arbitration. To vacate an award when it was as
final and definite as existing circumstances permitted,
would undermine the strong public policy favoring arbi-
tration as a means of resolving disputes. ‘‘[T]he parties
voluntarily bargained for the decision of the arbitrator
and, as such, the parties are presumed to have assumed
the risks of and waived objections to that decision. . . .
It is clear that a party cannot object to an award which
accomplishes precisely what the arbitrators were
authorized to do merely because that party dislikes the
results. . . . Thus, [our Supreme Court has] previously
held that the parties should be bound by a decision that
they contracted and bargained for, even if it is regarded
as unwise or wrong on the merits.’’ (Citations omitted.)
American Universal Ins. Co. v. DelGreco, 205 Conn.
178, 186–87, 530 A.2d 171 (1987).
The plaintiffs additionally argue that the award was
indefinite because Stein retained jurisdiction to inter-
pret and resolve any disputes concerning the award.
We are unpersuaded. ‘‘[W]hen there is no Connecticut
case law directly on point, [the court] may turn for
guidance to the applicable federal law.’’ Nussbaum v.
Kimberly Timbers, Ltd., 271 Conn. 65, 73 n.6, 856 A.2d
364 (2004). The United States Court of Appeals for the
Ninth Circuit has differentiated between a retention of
jurisdiction in which a remedy is not provided to the
parties that is not final and definite, and one that
retained jurisdiction in a case in which a court held the
award to be improper or if the parties were unable to
agree on nonmandatory terms. Sheet Metal Workers’
International Assn., Local 206, AFL-CIO v. R.K.
Burner Sheet Metal, Inc., 859 F.2d 758, 760–61 (9th Cir.
1988). It concluded that the latter was ‘‘final and binding
as to all mandatory bargaining terms. Indeed, the award
was final for all purposes if no court acted.’’7 Id., 761.
In the present matter, Stein retained jurisdiction for the
sole purpose of interpreting the award or resolving any
potential disputes arising from the final effectuation of
his ruling. Such a retention of jurisdiction does not
involve fashioning a remedy and, thus, does not under-
mine the finality of the award.8 We, therefore, agree
with the trial court that the award was sufficiently defi-
nite and final.
IV
The plaintiffs’ final claim is that the trial court improp-
erly denied their application to vacate the arbitration
award because the award violated public policy. Specifi-
cally, the plaintiffs argue that the award violates public
policy by allowing for damages due to increased tax
liability, as it would ‘‘place [the defendants] into a better
position than if they had never invested in the 419 Plan,’’
and by infringing on the freedom to contract through
Stein’s determination of contractual obligations. We
disagree.
We begin by setting forth our standard of review.
‘‘[W]e favor arbitration as a means of settling private
disputes, [thus] we undertake judicial review of arbitra-
tion awards in a manner designed to minimize interfer-
ence with an efficient and economical system of
alternative dispute resolution. . . . We will, however,
submit to higher scrutiny an arbitration award that is
claimed to be in contravention of public policy. . . .
[P]arties cannot expect an arbitration award approving
conduct which is . . . contrary to public policy to
receive judicial endorsement any more than parties can
expect a court to enforce such a contract between them.
. . . When a challenge to the arbitrator’s authority is
made on public policy grounds, however, the court is
not concerned with the correctness of the arbitrator’s
decision but with the lawfulness of enforcing the
award. . . .
‘‘Thus, when a party challenges a consensual arbitral
award on the ground that it violates public policy, and
where that challenge has a legitimate, colorable basis,
de novo review of the award is appropriate in order to
determine whether the award does in fact violate public
policy. . . . As this court maintained in [State v.
AFSCME, Council 4, Local 391, 309 Conn. 519, 528, 69
A.3d 927 (2013)], we defer to the arbitrator’s interpreta-
tion of the agreements regarding the scope of the [con-
tract] provision . . . . We conclude only that as a
reviewing court, we must determine, pursuant to our
plenary authority and giving appropriate deference to
the arbitrator’s factual conclusions, whether the con-
tract provision in question violates those policies. . . .
‘‘To determine whether an arbitration award must be
vacated for violating public policy, we employ a two-
pronged analysis. . . . First, we must determine
whether the award implicates any explicit, well-defined,
and dominant public policy. . . . To identify the exis-
tence of a public policy, we look to statutes, regulations,
administrative decisions, and case law. . . . Second, if
the decision of the arbitrator does implicate a clearly
defined public policy, we then determine whether the
contract, as construed by the arbitration award, violates
that policy.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, 316 Conn. 618, 629–
31, 114 A.3d 144 (2015). ‘‘Our case law . . . has empha-
sized, however, that a reviewing court still is bound
by the arbitrator’s factual findings in making such a
determination.’’ AFSCME, Council 4, Local 1565 v.
Dept. of Correction, 298 Conn. 824, 837, 6 A.3d 1142
(2010).
The trial court found that ‘‘Stein essentially con-
cluded that the transfer of the life insurance policies
to the [defendants] created a tax liability that would
not have otherwise been imposed but for the transfer.
When a challenge to the arbitrator’s authority is made
on public policy grounds, however, the court is not
concerned with the correctness of the arbitrator’s deci-
sion but with the lawfulness of enforcing the award.
. . . A court reviewing a violation of public policy chal-
lenge to an arbitration award is bound by the arbitrator’s
factual findings in making such a determination. Stein’s
conclusion, therefore, as to the creation of a tax liability
that would not otherwise have been imposed but for the
transfer is a factual finding this court may not reverse.’’
(Citations omitted; internal quotation marks omitted.)
We agree with the trial court.
The plaintiffs misconstrue Stein’s factual findings as
a violation of an explicit, well-defined, and dominant
public policy. We see no such public policy in this case.
As previously stated in parts II and III of this opinion,
‘‘courts do not review the evidence or otherwise second-
guess an arbitration panel’s factual determinations
when the arbitration submission is unrestricted.’’
Industrial Risk Insurers v. Hartford Steam Boiler
Inspection & Ins. Co., supra, 273 Conn. 96. We, there-
fore, conclude that the trial court properly denied the
application to vacate the award on public policy
grounds.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants named other individuals and entities who are not parties
to the present action or this appeal.
2
‘‘A submission is restricted if the agreement conferring the arbitrator’s
authority over the dispute limits the breadth of issues to be resolved, reserves
explicit rights or conditions the award on court review. In the absence of
any such restraints, it is unrestricted. Rocky Hill Teachers’ Assn. v. Board
of Education, 72 Conn. App. 274, 278 n.6, 804 A.2d 999, cert. denied, 262
Conn. 907, 810 A.2d 272 (2002).’’ Board of Education v. Local R1-126,
National Assn. of Government Employees, 108 Conn. App. 35, 40 n.3, 947
A.2d 371 (2008). The record does not disclose the existence of a formal
written submission in this case; therefore, we treat the submission as
unrestricted.
3
Benistar 419 Plan Services, Inc., Nova Benefit Plans, LLC, and Daniel E.
Carpenter joined BASI.
4
We again note; see footnote 2 of this opinion; that, upon review of the
record, it does not appear that the parties made a formal submission in this
case. In an e-mail from Stein to the parties, Stein stated that he ‘‘hoped that
[his] decision [on dispositive motions] would supply [the simple statement
of the issue needed].’’ Additionally, in the posthearing decision and award,
Stein articulated the questions before him as: ‘‘(1) Did [the defendants]
suffer any damages? And (2), if so, how can they be calculated and (3) who
should be responsible? . . . At the hearing, the issues were whether [the
plaintiffs] breached their contractual duties to [the defendants], including
their contractual breach of fiduciary duties . . . .’’
5
We additionally do not view the present situation to be similar to that
of AFSCME, Council 4, Local 1565, where the remedy was left to the sole
predilection of one of the parties. In this case, the record is unclear as to
the extent of the opportunity, if any, for the defendants to negotiate with
the IRS with respect to settlement of their tax liabilities attributable to their
participation in this unsuccessful tax avoidance scheme.
6
Again, there is no evidence in the record that would suggest that the
amount of taxes and penalties is left to the predilection of the defendants.
At best, the defendants may attempt to negotiate those amounts with the
IRS and, if the plaintiffs are of the view that the defendants did not do so
in good faith, the plaintiffs could attempt to raise this with the arbitrator,
who has retained jurisdiction.
7
This reasoning has been used in our Superior Courts, which, although
not binding on this court, is persuasive. In State v. New England Health
Care Employees Union, District 1199, AFL-CIO, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX (April 16, 1997) (19 Conn.
L. Rptr. 337, 339), the Superior Court upheld an award as final and definite
when the arbitrator retained jurisdiction to ‘‘oversee the parties’ progress
in performing the ‘ministerial’ task of calculating the exact monetary amount
. . . .’’ The court stated: ‘‘An arbitrator’s use of boilerplate language gener-
ally retaining jurisdiction does not make an award nonfinal. International
Assn. of Bridge, Structural & Ornamental Iron Workers, Shopmen’s Local
Union 501 v. Burtman Iron Works, Inc., 928 F. Supp. 83, 86 (D. Mass. 1996),
citing Dreis & Krump Mfg. Co. v. International Assn. of Machinists &
Aerospace Workers, District No. 8, 802 F.2d 247, 250 (7th Cir. 1986). The
fact that an award requires prospective implementation does not make the
relief awarded any less final or definite. Dighello v. Busconi, 673 F. Supp.
85, 91 (D. Conn. 1987).
‘‘Courts have drawn an important distinction between awards that retain
jurisdiction and direct the parties to follow specific instructions regarding
implementation of the remedy and awards that retain jurisdiction but fail
to provide any remedy and order the parties to fashion a remedy. In Sheet
Metal Workers’ International Assn., Local 206, AFL-CIO v. R.K. Burner
Sheet Metal, Inc., [supra, 859 F.2d 758] [Local 206], the court explained the
foregoing distinction when it distinguished its holding in Millmen Local
550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO v.
Wells Exterior Trim, 828 F.2d 1373 (9th Cir. 1987) [Millmen]. Millmen
vacated an award in which the arbitrator ruled only on whether the collective
bargaining agreement was violated but declined to fashion any remedy, and
sent the question of remedy back to the parties while retaining jurisdiction
in case they were unable to reach an agreement. In contrast, the issue in
Local 206 involved an arbitration award in which the arbitrator ordered
the parties to sign a [s]tandard [f]orm [u]nion [a]greement, but retained
jurisdiction in the event that a court found that the remedy improperly
imposed terms on nonmandatory subjects of bargaining and the parties
were unable to reach [an] agreement on those terms. The court held that
that award was final and binding. The arbitrator’s contingent retention of
jurisdiction did not render the award indefinite.’’ State v. New England
Health Care Employees Union, District 1199, AFL-CIO, supra, 19 Conn.
L. Rptr. 339.
8
We additionally note that Stein’s retention of jurisdiction addresses the
concern voiced by the plaintiffs regarding the reasonableness of attor-
ney’s fees.