Orlando v. Liburd

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Orlando v. Liburd

ROCCO ORLANDO v. ERNEST LIBURD
(AC 46295)
Alvord, Suarez and Westbrook, Js.

Syllabus

The plaintiff, O, sought to recover damages from the defendant, L, arising
out of a motor vehicle accident. At the time of the accident, O was
insured by N Co., and N Co. paid to repair the damage to O’s vehicle
that resulted from the accident. In O’s action against L, O sought damages
for, inter alia, the diminished value of his vehicle. L moved to implead
N Co. as a third-party defendant and filed a third-party complaint against
N Co., alleging that his insurer had tendered his full policy limit to N
Co. O filed an amended complaint that purported to assert apportion-
ment claims against N Co. The court granted N Co.’s motion for a
judgment of nonsuit against L. Less than four months before jury selec-
tion was scheduled, O requested leave to amend his complaint, which
the court denied. Subsequently, the court granted N Co.’s motion to
strike counts of the operative complaint, including a count sounding in
unjust enrichment. On O’s appeal to this court, held:
1. O could not prevail on his claim that the trial court improperly denied
his request for leave to amend his complaint, O having failed to demon-
strate that the court abused its discretion in denying his request: the
court’s denial did not prevent O from curing alleged pleading deficiencies
with respect to the counts initially pleaded because O had the opportu-
nity to cure such deficiencies when he filed a third amended complaint
two months later; moreover, although O could not properly assert the
additional causes of action in the subsequent amended complaints he
filed, the court found that he had had an opportunity to assert those
causes of action in prior requests to amend the complaint and failed to
do so; furthermore, the court also found that permitting the proposed
amendment would considerably delay the proceedings in light of the
upcoming trial date, despite the fact that the parties were still in the
pleading stage of litigation.
2. O could not prevail on his claim that the trial court improperly dismissed
his unjust enrichment count against N Co. for lack of subject matter
jurisdiction:
a. O’s unjust enrichment claim against N Co. was not ripe for adjudication
as it was contingent on whether and to what extent O could recover
against L as well as whether L would be able to satisfy the hypothetical
judgment; moreover, because O’s claim against L has yet to be adjudi-
cated and liability, if any, for the alleged loss determined, and there was
no allegation that L was insolvent, it was impossible to ascertain whether
O would sustain any compensatory injury as a result of N Co.’s alleged
misconduct.
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Orlando v. Liburd
b. The trial court properly decided the issue of subject matter jurisdiction
on the basis of the operative complaint alone and did not improperly
fail to consider evidence O presented regarding ripeness: O’s proffered
exhibits were copies of emails unaccompanied by any affidavit or other
undisputed evidence as required by the applicable rule of practice (§ 10-
31); moreover, even considering O’s exhibits, they were not sufficient
to render his claim against N Co. ripe for adjudication, as O’s claim
against N Co. was wholly contingent on O obtaining a judgment against
L and L being unable to satisfy the hypothetical judgment.

Argued May 29—officially released September 10, 2024

Procedural History

Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Cobb, J., granted the defendant’s motion to
implead Nationwide Mutual Insurance Company as a
third-party defendant; thereafter, the named defendant
filed a third-party complaint against Nationwide Mutual
Insurance Company; subsequently, the plaintiff filed an
amended complaint; thereafter, the court, Rosen, J.,
granted the third-party defendant’s motion for nonsuit
against the named defendant and rendered judgment
thereon; subsequently, the court, Rosen, J., denied the
plaintiff’s request to file an amended complaint; there-
after, the court, Rosen, J., granted the third-party defen-
dant’s motion to strike; subsequently, the plaintiff filed
an amended complaint; thereafter, the court, Sicilian,
J., granted the third-party defendant’s motion to strike
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.

Matthew J. Forrest, with whom, on the brief, was
James R. Brakebill, for the appellant (plaintiff).

Andrew P. Barsom, with whom, on the brief, was
Robert D. Laurie, for the appellee (third-party defen-
dant).
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Orlando v. Liburd

Opinion

WESTBROOK, J. In this action arising out of a motor
vehicle accident, the plaintiff, Rocco Orlando, appeals
from the judgment of the trial court rendered in favor of
the third-party defendant, Nationwide Mutual Insurance
Company (Nationwide),1 on counts three and four of
the operative amended complaint and from the court’s
denial of a motion for leave to amend an earlier com-
plaint.2 The plaintiff claims that the court improperly
(1) denied his request to amend, which prevented him
from curing alleged pleading deficiencies and (2) dis-
missed for lack of subject matter jurisdiction his counts
directed against Nationwide because, contrary to the
court’s conclusion, the claims therein were ripe under
the ‘‘make whole doctrine.’’3 We affirm the judgment
of the trial court.
1
The named defendant and third-party plaintiff, Ernest Liburd, has not
participated in this appeal.
2
At the time the court rendered the decision underlying this appeal, counts
three and four were the only unresolved counts of the operative complaint
directed against Nationwide and, thus, the court’s decision, at first blush,
appeared to constitute an appealable final judgment in accordance with
Practice Book § 61-3. After the initial appeal was filed, however, it became
clear that the court had rendered a final judgment only with respect to one
of the two counts at issue on appeal, and that the court also had never
rendered judgment on a previously stricken count also directed against
Nationwide. Prompted by an order of this court, the parties sought and
obtained judgment on all stricken counts, and the plaintiff subsequently
filed an amended appeal. Accordingly, although the original appeal is dis-
missed for lack of a final judgment, the amended appeal, which raises the
same claims of error, is properly before us. See Practice Book § 61-9; Haworth
Country Club, LLC v. United Bank, 226 Conn. App. 665, 668 n.1, A.3d
(2024).
3
In Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 309
Conn. 449, 72 A.3d 36 (2013), our Supreme Court clarified that the make
whole doctrine is ‘‘sound policy’’; id., 457; and ‘‘operates as a default rule
in Connecticut insurance contracts.’’ Id., 458. It explained the doctrine as
follows. First, it recognized the principle that an insurer’s right to subrogation
‘‘promotes equity by preventing an insured from receiving more than full
indemnification as a result of recovering from both the wrongdoer and the
insurer for the same loss, which would unjustly enrich the insured.’’ Id.,
456. It then explained that, ‘‘[if] the amount recoverable from the responsible
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Orlando v. Liburd

The following undisputed facts and procedural his-
tory are relevant to our discussion of the plaintiff’s
amended appeal. On November 6, 2018, the plaintiff was
involved in a motor vehicle accident with the defendant,
Ernest Liburd. At the time of the accident, the plaintiff
was insured by Nationwide, and Nationwide paid to
repair the damage to the plaintiff’s vehicle that resulted
from the accident. On September 23, 2019, the plaintiff
commenced the underlying action against Liburd alleg-
ing that Liburd negligently struck the plaintiff’s vehicle
and caused the plaintiff’s damages, including dimin-
ished value of the plaintiff’s vehicle. Liburd moved to
implead Nationwide as a third-party defendant, and the
court, Cobb, J., granted the motion. On April 20, 2021,
Liburd filed a third-party complaint against Nationwide
alleging that his insurer had tendered his full policy
limit to Nationwide and that Nationwide had misrepre-
sented to him that the plaintiff had been made whole.
On May 13, 2021, the plaintiff filed an amended com-
plaint that purported to assert apportionment claims
against Nationwide. On September 17, 2021, the plaintiff
filed a second amended complaint. Count one of the
second amended complaint asserted a negligence cause
of action against Liburd and counts two, three and four
asserted causes of action against Nationwide based on
negligent misrepresentation, common-law indemnifica-
tion and unjust enrichment.
On November 22, 2021, the court, Rosen, J., granted
Nationwide’s motion for a judgment of nonsuit against
Liburd for failing to comply with an unopposed request
third party is insufficient to satisfy both the total loss sustained by the
insured and the amount the insurer pays on the claim, however, this principle
may lead to inequitable results. . . . The make whole doctrine addresses
this concern by restricting the enforcement of an insurer’s subrogation rights
until after the insured has been fully compensated for her injuries, that is
. . . made whole.’’ (Citation omitted; internal quotation marks omitted.)
Id., 456–57.
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that he revise his third-party complaint. See Practice
Book § 10-37 (a).4
On December 30, 2021, Nationwide moved to strike
counts two, three, and four of the second amended
complaint noting that the plaintiff’s claims against
Nationwide were apportionment claims that were
entirely reliant on Liburd’s allegations in his third-party
complaint for which a judgment of nonsuit had been
rendered. Nationwide argued that the counts against it
should be dismissed or that they asserted only conclu-
sory allegations that were legally insufficient to sustain
the causes of action pleaded and, thus, should be
stricken.
In response to the motion to strike, on January 27,
2022, less than four months before jury selection was
scheduled, the plaintiff requested leave to file a third
amended complaint that sought to plead additional
causes of action against Nationwide sounding in wrong-
ful subrogation, breach of fiduciary duty, breach of
contract, breach of the implied covenant of good faith
and fair dealing, conversion, and statutory theft in viola-
tion of General Statutes § 52-564. The court denied the
plaintiff’s request, stating: ‘‘The proposed third amended
complaint is untimely, prejudicial and would unneces-
sarily delay the trial of this matter. Jury selection is
scheduled for May 19, 2022. The proposed third amended
complaint seeks to [add] numerous additional causes of
action against the defendant Nationwide, which would
require further pleading and discovery practice. More-
over, the new causes of action could have been asserted
in prior requests to amend the complaint.’’ On March
4
Practice Book § 10-37 (a) provides in relevant part that a properly served
and filed request to revise ‘‘shall be deemed to have been automatically
granted by the judicial authority on the date of filing and shall be complied
with by the party to whom it is directed within thirty days of the date of
filing the same, unless within thirty days of such filing the party to whom
it is directed shall file objection thereto.’’
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7, 2022, the court granted Nationwide’s motion to strike,
noting in its order that the plaintiff had consented at
oral argument to the granting of the motion.

On March 21, 2022, the plaintiff filed a third amended
complaint pursuant to Practice Book § 10-44,5 and, on
April 18, 2022, to correct certain scrivener’s errors, filed
the operative fourth amended complaint. The operative
complaint retained count two as a placeholder, noting
parenthetically that it previously had been stricken by
the court.6 Counts three and four of the operative com-
plaint alleged the plaintiff’s previously stricken causes
of action against Nationwide that purported to sound
in unjust enrichment and common-law indemnity,
respectively. With respect to count three, the plaintiff
alleged that Nationwide was unjustly enriched by its
premature subrogation because the plaintiff had not yet
been made whole, and that, ‘‘[i]f [Liburd] should be
held liable to pay damages to the plaintiff . . . then
the plaintiff is entitled to recover from Nationwide for
all sums adjudged against [Liburd] in favor of the plain-
tiff.’’ (Emphasis added.)

On June 2, 2022, Nationwide moved to strike counts
three and four of the operative complaint. The plaintiff
filed an opposition only as to count three, indicating
therein that ‘‘[t]he plaintiff does not wish to object to
[Nationwide’s] motion to strike count four alleging com-
mon-law indemnity.’’ The court, Sicilian, J., held oral
argument on the motion to strike on September 12,
2022, with the arguments limited to count three of the
complaint.
5
Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading . . . .’’
6
The plaintiff was not attempting to replead count two and does not
challenge in the present amended appeal the court’s decision to strike and
render judgment on that count.
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On September 29, 2022, the court sua sponte raised
the issue of ripeness with respect to count three and
ordered the parties to brief that issue.7 Both parties
submitted briefs, following which the court granted the
motion to strike with respect to count four, noting that
the plaintiff had not contested the motion to strike with
respect to that count, and dismissed count three of the
complaint as not ripe for adjudication. In its memoran-
dum of decision, the court stated that, ‘‘[b]y its plain
words, the plaintiff’s count three asserts a claim contin-
gent upon an event that has not and may never occur.
Therefore, the claim is not ripe.’’ This amended appeal
followed. See footnote 2 of this opinion. Additional facts
will be set forth as necessary.
I
The plaintiff first claims that the court improperly
denied his January, 2022 request for leave to amend his
second amended complaint. In particular, the plaintiff
argues that (1) the proposed amendment would not
have prejudiced Nationwide because the parties were
still in the pleading stage of litigation, and (2) denying
the proposed amendment prejudiced the plaintiff
because it prevented him from curing alleged pleading
deficiencies and asserting new causes of action against
Nationwide.
7
The court’s order provided in relevant part: ‘‘In paragraph 14 of count
three of the fourth amended complaint, the plaintiff alleges: If [Liburd]
should be held liable to pay damages to the plaintiff . . . then the [p]laintiff
is entitled to recover from Nationwide . . . . It therefore appears that the
plaintiff’s claim for damages against Nationwide may be unripe and that
the court may lack subject matter jurisdiction over the claim. See Cadle Co.
v. D’Addario, 111 Conn. App. 80, 82–83, 957 A.2d 536 (2008) (‘in determining
whether a case is ripe, a trial court must be satisfied that the case before
[it] does not present a hypothetical injury or a claim contingent upon some
event that has not and indeed may never transpire’).
‘‘The plaintiff and Nationwide are ordered, within forty-five days of the
date of this order, to brief the question whether the court has subject
matter jurisdiction over the plaintiff’s claim for unjust enrichment against
Nationwide.’’
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‘‘Our standard of review of the [plaintiff’s] claim is
well defined. A trial court’s ruling on a motion of a
party to amend its complaint will be disturbed only on
the showing of a clear abuse of discretion. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. [An appellate] court
will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is the [plaintiff’s] burden in this case
to demonstrate that the trial court clearly abused its
discretion. . . .
‘‘A trial court may allow, in its discretion, an amend-
ment to pleadings before, during, or after trial to con-
form to the proof. . . . Factors to be considered in
passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.)
Rodriguez v. Hartford, 224 Conn. App. 314, 325, 312
A.3d 85, cert. denied, 349 Conn. 907, 313 A.3d 512, and
cert. denied, 349 Conn. 907, 313 A.3d 512 (2024); see
also Booth v. Park Terrace II Mutual Housing Ltd.
Partnership, 217 Conn. App. 398, 432, 289 A.3d 252
(2023).
In the present case, the plaintiff has failed to demon-
strate that the court abused its discretion in denying
his request to amend his second amended complaint.
The court’s denial did not prevent the plaintiff from
curing alleged pleading deficiencies with respect to the
counts initially pleaded because the plaintiff had the
opportunity to cure such deficiencies when he filed the
third amended complaint in March, 2022. Moreover,
although the plaintiff could not properly assert the six
additional causes of action in the third and fourth
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amended complaints; see Stone v. Pattis, 144 Conn.
App. 79, 94, 72 A.3d 1138 (2013) (‘‘Practice Book § 10-
44 grants the power to amend the portion of a complaint
that has been stricken, not the power to revise a com-
plaint entirely’’); the court found that he had had an
opportunity to assert those causes of action in prior
requests to amend the complaint and failed to do so.
The trial court also found that permitting the pro-
posed amendment would considerably delay the pro-
ceedings in light of the upcoming trial date, despite the
fact that the parties were still in the pleading stage of
litigation. See Rodriguez v. Hartford, supra, 224 Conn.
App. 325 (trial court did not abuse its discretion in
denying amendment that would considerably delay pro-
ceedings). We conclude that the court’s ruling did not
reflect an abuse of the court’s discretion regarding the
amendment of pleadings and, accordingly, reject the
plaintiff’s claim to the contrary.
II
The plaintiff also claims that the court improperly
dismissed his unjust enrichment count against Nation-
wide for lack of subject matter jurisdiction on ripeness
grounds. In particular, the plaintiff argues that, contrary
to the court’s conclusion, the claim was ripe for adjudi-
cation because Nationwide’s premature subrogation
had caused him tangible legal injury under the make
whole doctrine. The plaintiff additionally argues that
the court improperly failed to consider evidence that
he presented regarding ripeness. We disagree with both
aspects of the plaintiff’s claim.
A
First, we briefly set forth the standard of review and
relevant legal principles that govern our review of the
plaintiff’s argument that his unjust enrichment claim
was ripe for adjudication. ‘‘[J]usticiability comprises
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several related doctrines, namely, standing, ripeness,
mootness and the political question doctrine, that impli-
cate a court’s subject matter jurisdiction and its compe-
tency to adjudicate a particular matter. . . . A case
that is nonjusticiable must be dismissed for lack of
subject matter jurisdiction. . . . [B]ecause an issue
regarding justiciability raises a question of law, our
appellate review [of the plaintiff’s ripeness claim] is
plenary. . . .
‘‘[T]he rationale behind the ripeness requirement is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining
whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical
injury or a claim contingent upon some event that has
not and indeed may never transpire.’’ (Citations omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69,
86–87, 952 A.2d 1 (2008).
In Cadle Co. v. D’Addario, 111 Conn. App. 80, 81, 957
A.2d 536 (2008), the plaintiff purchased a promissory
note from a creditor of a decedent and filed a notice
of claim against the decedent’s estate. This court, find-
ing that the claim was not ripe for adjudication, stated
the following: ‘‘[T]he existence of the plaintiff’s injury
is contingent on a determination of the priorities of the
creditors of the decedent’s estate, the final settlement
of the estate and the absence of sufficient funds in the
estate to satisfy the plaintiff’s claim. In other words,
any injury sustained by the plaintiff stemming from the
allegations of the defendants’ misconduct are, at this
point, hypothetical.’’ Id., 83.
Turning to the present case, similar to the facts in
Cadle Co., the plaintiff’s unjust enrichment claim
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against Nationwide is contingent on a final determina-
tion of his claims against Liburd and, if the plaintiff is
awarded damages, the absence of sufficient funds from
Liburd or his insurer to satisfy the plaintiff’s claim. Even
if, unlike in Cadle Co., the plaintiff’s priority rights may
already be determined under the make whole doctrine,8
the plaintiff’s claim against Nationwide is still contin-
gent upon whether and to what extent the plaintiff can
recover against Liburd as well as whether Liburd will
be able to satisfy the hypothetical judgment.
Additionally, this case is distinguishable from cases
in which only the amount of damages was in question.
See Chapman Lumber, Inc. v. Tager, supra, 288 Conn.
87–88 (although exact amount of plaintiff’s damages
was uncertain, because it was clear there was no way
plaintiff could recover entirety of its debt as sought
in complaint, plaintiff had sustained some damages);
Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 211–
14, 719 A.2d 465 (1998) (plaintiff’s inverse condemna-
tion action was ripe despite potential of success of
administrative appeal from taking of its land because
it would still be entitled to some compensation for
temporary taking it had suffered during pendency of
that appeal); Mayer v. Biafore, Florek & O’Neill, 245
Conn. 88, 92, 713 A.2d 1267 (1998) (judicial determina-
tion that action was barred by statute of limitations
was not necessary to justiciability of legal malpractice
claim because injury already occurred); Weiner v. Clin-
ton, 100 Conn. App. 753, 759–60, 919 A.2d 1038 (malprac-
tice matter was ripe despite pending appeal because
injury of default judgment allegedly caused by legal
negligence already occurred), cert. denied, 282 Conn.
928, 926 A.2d 669 (2007). Here, because the plaintiff’s
8
The parties dispute whether the plaintiff has priority rights to Liburd’s
insurance policy under the make whole doctrine. Because we find that the
plaintiff’s claim against Nationwide is not ripe for adjudication, we do not
reach the merits of this dispute.
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claim against Liburd has yet to be adjudicated and liabil-
ity for the alleged loss determined, and there is no
allegation that Liburd is insolvent, it is impossible to
ascertain whether the plaintiff will sustain any compen-
satory injury as a result of Nationwide’s alleged miscon-
duct.
Furthermore, the plaintiff’s reliance on Saunders v.
KDFBS, LLC, 335 Conn. 586, 239 A.3d 1162 (2020), as
authority for his argument that Nationwide’s infringe-
ment on his priority rights to Liburd’s insurance policy
is sufficient injury to make his claim ripe, is misplaced.
In Saunders, our Supreme Court addressed ‘‘whether
a determination of the priority of mortgages can be
challenged in an appeal from the judgment of foreclo-
sure by sale, before the foreclosure sale has taken place,
when the priority of the foreclosing plaintiff’s mortgage
is in dispute.’’ Id., 588. The court held that the priority
determination could be appealed because the trial court
had conclusively established the parties’ priority rights,
and the order of priority is essential to foreclosure
because bidders at a foreclosure sale need to know the
order of the encumbrances to which the property is
subject. Id., 603–606.
Here, unlike the foreclosure action in Saunders, the
court did not conclusively decide which party has prior-
ity rights to Liburd’s insurance policy. Nor is the dispute
over priority rights essential to the determination of
the plaintiff’s negligence claim against Liburd. To the
contrary, determination of the plaintiff’s claim against
Liburd is necessary before the court can ascertain
whether Nationwide has been unjustly enriched by sub-
rogation. The rationale supporting the decision in Saun-
ders does not apply here. In short, we reject the plain-
tiff’s claim that count three of his complaint was ripe
for adjudication because Nationwide’s premature sub-
rogation had caused him tangible legal injury under the
make whole doctrine.
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B
The plaintiff also argues that the court improperly
concluded that his unjust enrichment claim was not
ripe because it failed to consider certain evidence pre-
sented by the plaintiff. We disagree.
‘‘[L]ack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . [I]f the complaint is supple-
mented by undisputed facts established by affidavits
submitted in support of the motion to dismiss . . .
other types of undisputed evidence . . . and/or public
records of which judicial notice may be taken . . . the
trial court, in determining the jurisdictional issue, may
consider these supplementary undisputed facts and
need not conclusively presume the validity of the allega-
tions of the complaint.’’ (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) Conboy v. State, 292 Conn. 642, 651–52, 974
A.2d 669 (2009).
Here, the plaintiff’s argument concerns copies of two
emails from Liburd’s counsel that the plaintiff attached
to his brief. The first email contains a copy of a check
for twenty-five thousand dollars and states, ‘‘[p]lease
see the attached release and settlement check for the
PD limits of 25,000.00 following the intracompany arbi-
tration process.’’ The second email states: ‘‘I know
Nationwide is fighting everything tooth and nail on this
one but have you had any discussions with them about
resolving this case. I think the last time we spoke you
indicated that your plan was to get Nationwide and
make a claim for a portion of the benefits State Farm
paid to Nationwide. As you know we paid the policy
limit on this one.’’ The plaintiff points to the following
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portion of the court’s memorandum of decision as sup-
port for his argument that the court failed to consider
the emails that he submitted: ‘‘The plaintiff’s complaint
here does not allege the amount of his claimed damages,
the amount subrogated by his insurer, or the limits of
Liburd’s coverage. . . . [T]hose omissions are fatal.’’
The plaintiff’s exhibits, however, are copies of emails
that are unaccompanied by any affidavit or other undis-
puted evidence. See Practice Book § 10-31 (opposition
to motion to dismiss should, if appropriate, include
‘‘supporting affidavits as to facts not apparent on the
record’’). Accordingly, the court properly decided the
issue of subject matter jurisdiction on the basis of the
operative complaint alone.
More importantly, even considering the plaintiff’s
exhibits, they were not sufficient to render his claims
against Nationwide ripe for adjudication. Regardless of
the amount of Liburd’s insurance policy and the amount
Liburd’s insurer paid to Nationwide, as we concluded
in part II A of this opinion, the plaintiff’s claim against
Nationwide is wholly contingent upon the plaintiff
obtaining a judgment against Liburd and Liburd being
unable to satisfy the hypothetical judgment. Thus, even
if the exhibits were erroneously ignored by the trial
court, the plaintiff’s exhibits do not persuade us that
the claim is ripe for adjudication.9
The judgment is affirmed.
In this opinion the other judges concurred.

9
To the extent that the parties raise the issue of whether the plaintiff has
standing to assert an unjust enrichment claim against Nationwide, we do
not reach this issue because we conclude that the claim is not ripe for
adjudication.