Duso v. Groton

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Duso v. Groton

DONNA DUSO ET AL. v. TOWN OF GROTON
(AC 46527)
Bright, C. J., and Alvord and Clark, Js.

Syllabus

The defendant town appealed from the trial court’s judgment declaring that,
pursuant to a pension agreement between the defendant and a police union,
the plaintiffs, all retirees who formerly had been employed by the defendant,
were entitled to the same deductible contribution payments to their health
savings accounts as those received by the defendant’s active employees.
The defendant claimed, inter alia, that, in making its determination, the
trial court misinterpreted the language of a collective bargaining agreement
between the defendant and the union. The plaintiffs cross appealed from
the trial court’s judgment denying their motion for sanctions. Held:

The trial court had subject matter jurisdiction over the action because the
plaintiffs satisfied the requirements for demonstrating standing, as it was
clear that they were intended third-party beneficiaries of the pension agree-
ment, and that their claims were ripe.

The trial court properly denied the defendant’s motion to strike the complaint
because the defendant failed to establish that the police union was a neces-
sary party to the action.

The trial court correctly determined that the defendant’s payment of a certain
percentage of the annual deductible for its group health insurance plan to
the health savings accounts of only its active employees contravened the
terms of the pension agreement because the effect of such payments was
that the plaintiffs did not receive the same nature and scope of health care
coverage as the active employees.

The trial court did not abuse its discretion in awarding the plaintiffs damages,
as the evidence supported the trial court’s rejection of the defendant’s
request that it offset the award by the amount of the increase in health
insurance premiums that the plaintiffs would have incurred had they
received the deductible contributions to their health savings accounts.

The trial court did not abuse its discretion in declining to award attorney’s
fees to the plaintiffs as a sanction for the defendant’s alleged bad faith
litigation conduct because the court reasonably could have determined that
the plaintiffs failed to prove that the claims raised in the defendant’s motion
to dismiss were entirely without color and that the defendant had acted in
bad faith.

Argued May 29—officially released October 1, 2024
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Duso v. Groton

Procedural History

Action seeking, inter alia, a declaratory judgment as
to the scope of a certain provision of a pension agree-
ment as it related to the defendant’s obligations in con-
nection with the health care coverage provisions of a
collective bargaining agreement, and for other relief,
brought to the Superior Court in the judicial district of
New London, where the court, Swienton, J., denied the
defendant’s motion to dismiss; thereafter, the court,
Swienton, J., denied the plaintiffs’ motion for sanctions;
subsequently, the court, Swienton, J., denied the defen-
dant’s motion to strike; thereafter, the court, Graff,
J., adopted the parties’ joint stipulation of facts and
rendered judgment for the plaintiffs; subsequently, the
court, Graff, J., awarded compensatory damages to the
plaintiffs, and the defendant appealed and the plaintiffs
cross appealed to this court. Affirmed.
Kyle J. Zrenda, with whom was Kristi D. Kelly, for
the appellant-cross appellee (defendant).
Jacques J. Parenteau, for the appellees-cross appel-
lants (plaintiffs).
Opinion

BRIGHT, C. J. In this declaratory judgment action,
the defendant, the town of Groton, appeals from the
judgment of the trial court rendered in favor of the
plaintiffs, Donna Duso, David Menard, James Gauthier,
Kathleen Doyle, and Dexter Herron. On appeal, the
defendant claims that the court (1) lacked subject mat-
ter jurisdiction over the declaratory judgment action
because the plaintiffs lack standing and their claim is
not ripe, (2) improperly denied the defendant’s motion
to strike the complaint because the plaintiffs had failed
to join a necessary party, (3) misinterpreted the lan-
guage of a collective bargaining agreement, and (4)
improperly awarded damages. The plaintiffs cross
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Duso v. Groton

appeal from the judgment of the court denying their
motion for sanctions. We affirm the judgment of the
court.
The following facts, which were included in the par-
ties’ October 19, 2022 joint stipulation of facts (joint
stipulation) and adopted by the trial court in its memo-
randum of decision, and procedural history are relevant
to our resolution of this appeal. The plaintiffs are former
employees of the defendant and ‘‘were represented by
a duly elected collective bargaining representative, the
Groton Police Union, Local 3428 of Council 15, or Coun-
cil 4 as successor in interest to Council 15, of AFSCME,
AFL-CIO (union). . . . Throughout the course of all
[of] the plaintiffs’ employment, and in accordance with
[the Municipal Employee Relations Act (MERA), Gen-
eral Statutes § 7-467 et seq.], the [defendant] and the
union collectively bargained the terms and conditions
of the plaintiffs’ employment whereby entering into a
series of written collective bargaining agreements every
few years, each typically covering a time period from
two (2) to four (4) years, depending on what the parties
thereto (i.e., the [defendant] and the union) agreed
upon.’’
Each of the plaintiffs has retired from their employ-
ment with the defendant. ‘‘Different collective bar-
gaining agreements were in effect at the time each par-
ticular plaintiff retired from employment . . . . Each
collective bargaining agreement in effect at the time of
any of the plaintiffs’ retirement incorporated into it
the same collectively bargained pension agreement: An
Agreement Between the Town of Groton and the Groton
Police Union, Local 3428 of Council 15 AFSCME Con-
cerning Pensions August 1, 2008–June 30, 2012 (pension
agreement), which pension agreement remains in effect
to the present date. . . . The [defendant] and the union
entered into the collective bargaining agreement that
is the subject of this declaratory judgment action,
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namely, the Agreement Between The Town of Groton
and The Groton Police Union Local #3428 Council 4,
AFSCME, AFL-CIO July 1, 2016–June 30, 2020 (CBA),
which CBA was ratified by the parties on or about
November 28, 2017, and which CBA incorporates the
pension agreement under its article 25. . . .
‘‘At all times relevant to the plaintiffs’ complaint, the
[defendant] self-insures its group health insurance ben-
efits. . . . Anthem Blue Cross/Blue Shield (Anthem),
through an administrative services contract with the
[defendant], administers the benefits on the [defen-
dant’s] behalf. . . . As a town offering self-insured
health benefits to its employees and retirees, the [defen-
dant] does not pay any portion of a ‘premium’ to Anthem
but is billed by Anthem for the total cost of all claims
made by active employees and retirees for health insur-
ance benefits together with an administrative fee col-
lected by Anthem, as the administrator.’’ (Footnotes
omitted.)
‘‘During their employment, all five . . . plaintiffs
participated in the [defendant’s] group health insur-
ance, which at that time was a preferred provider option
(PPO) plan design as the primary option, with the option
to elect participation in a high deductible health plan
(HDHP) design as an alternative.’’ ‘‘Under the various
PPO plans offered to both active employees and retirees
between July, 2013, through June, 2018, there was no
annual deductible for in-network medical services, but
there were deductibles applicable to out-of-network
medical services. . . . Prior to January, 2018, the
[defendant] did not contribute any amount of money
to any active employee or retiree in relation to any
deductible amount associated with either the PPOs or
HDHPs offered to employees.’’ (Citations omitted.)
‘‘In 2018, pursuant to article 22.1 of the CBA . . .
the [defendant] changed its group health insurance plan
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Duso v. Groton

design for active police officers from a managed care
PPO to an HDHP. . . . Active employees enrolled in
the [defendant’s] health insurance were moved from
the PPO to the HDHP effective January 1, 2018; retirees,
to include the plaintiffs, were required to enroll in the
HDHP no later than July 1, 2018. . . . All plaintiffs, as
retirees, enrolled in the HDHP effective July 1, 2018.
. . .
‘‘Section 16 of the pension agreement articulates the
terms and conditions on which retirees . . . may elect
coverage under the [defendant’s] group health insur-
ance plan. . . . Section 16 (C) and (D) of the pension
agreement articulate the scope of health insurance cov-
erage available to retirees, depending on age, and § 16
(F) of [the pension agreement] provides the premium
share percentages that retirees . . . are to pay for par-
ticipation in the [defendant’s] health insurance plan.
. . . For retirees under the age of sixty-five, which
includes all of the plaintiffs, the scope of coverage is
as follows . . . . The nature and scope of coverages,
including but not limited to deductibles, coinsurance,
copays and/or limits, shall be those in effect for active
police officers, as those coverages, including but not
limited to deductibles, coinsurance, copays and/or lim-
its, may change from time to time, except dental which,
if provided to active police officers, shall be limited
for retirees, spouses and/or other dependents, where
applicable, to basic coverage as provided to active
police officers. Said coverages shall be available until
such time as the retiree, spouse and/or dependents
become eligible for Medicare or reach age sixty-five,
whichever is earlier.’’ (Internal quotation marks omit-
ted.)
‘‘Participants in an HDHP are eligible under the Inter-
nal Revenue Code [26 U.S.C.] § 223, to open and main-
tain a tax favored health savings account (HSA). . . .
Enrollment in an HDHP does not require a participant
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to open an HSA, but the HDHP participant has the
option to do so. . . . Article 22.1 (A) (2) of the CBA
expressly requires that active employees open and
maintain an HSA in conjunction with their enrollment
in the HDHP. . . . There is no requirement that any
retiree . . . open and maintain an HSA in conjunction
with the HDHP; but retirees, including the plaintiffs,
may have that option. . . . An HSA is a personally
established and owned private bank account that a par-
ticipant opens and maintains at a bank of their choosing.
. . . Similar to the procedures for ‘direct deposit’ for
payment of regular wages (active employees) or
monthly pension payments (retirees), an individual pro-
vides the [defendant] with a ‘direct deposit’ authoriza-
tion form for payment of any funds the individual wishes
to have withheld from their wages/payments and
directed to their HSA. . . . The [defendant] deducts
the respective share of the health insurance premiums
for active employees from the employee’s wages during
each payroll, and from retirees once per month from
their monthly pension payment. . . .

‘‘Article 22.1 (A) (2) of the CBA provides for an annual
contribution to active employees’ HSA, by the [defen-
dant], equal to [50 percent] of the active employee’s
annual in-network deductible. . . . Under article 22.1
(A) (2), therefore, active employees purchasing ‘single’
coverage receive a $1000 contribution from the [defen-
dant] to their HSA each July 1, and active employees
purchasing ‘two-person’ or ‘family’ coverage receive a
$2000 contribution from the [defendant] to their HSA
each July 1. . . . Under the CBA, commencing on July
1, 2018, and each year since, active employees enrolled
in the HDHP have received . . . contributions by the
[defendant] to their respective HSA . . . .’’ (Footnote
omitted.) Active employees with single coverage for the
years 2018, 2019, 2020, 2021, and 2022, received $1000
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Duso v. Groton

per year. Active employees with two person/family cov-
erage for the years 2018, 2019, 2020, 2021, and 2022,
received $2000 per year.
Article 22.1 (A) (2) of the CBA contains a ‘‘Note,’’
stating: ‘‘The [defendant’s] fifty percent (50%) contribu-
tion toward the funding of the HDHP plan is not an
element of the underlying insurance plan, but rather
relates to the manner in which the deductible shall be
funded for active employees. The [defendant] shall have
no obligation to fund any portion of the HDHP deduct-
ible for retirees or other individuals upon their separa-
tion from employment. Under 65 retirees must enroll
in the HDHP as of July 1, 2017, or as soon as legally
possible following the ratification of this 2016–2020
agreement, but in no case later than July 1, 2018.’’
(Emphasis omitted.)
‘‘Prior to 2016, the [defendant] used what is referred
to [as] a ‘Fully-Insured Equivalent Rate’ to determine
participant cost shares; but, in February of 2016, the
[defendant] commenced using what is referred to as an
‘Allocated Rate’ to determine participant cost share.
This resulted in participants being charged a percentage
of a lower rate for health insurance benefits. Both the
‘Fully-Insured Equivalent Rate’ and the ‘Allocated Rate’
used by the [defendant] to determine participant cost
share each year [are] calculation[s] provided by Anthem
to the [defendant]. . . . Neither the Fully-Insured
[Equivalent] Rate, nor the Allocated Rate remains stag-
nant; it changes from fiscal year to fiscal year. . . .
The Fully-Insured [Equivalent] Rate and/or the Allo-
cated Rate are both alternative terms which may be
used interchangeably with the word ‘premium,’ as that
phrase is used in the CBA and pension agreement. . . .
The Allocated Rate is derived through an underwriting
calculation performed by Anthem and provided to the
[defendant] prior to the start of its fiscal year. The
underwriting calculation takes into account certain cost
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estimates including but not limited to the potential or
anticipated claims attributable to the particular group
of participants, Anthem’s retention fees, potential stop
loss fees, and network access fees.’’
‘‘[I]n plan years 2016 and 2017, under the PPO plan
and prior to the move to the HDHP, the Allocated Rate
for the active police officers and retirees was the same
amount. Following the move of all active police officers
and retirees from the PPO plan to the HDHP in 2018,
the Allocated Rate for the active police officers, com-
pared to the Allocated Rate for the retirees, in each
of the ‘Single,’ ‘Two-Person’ and ‘Family’ categories is
approximately 6.5 percent more for active police offi-
cers in each of the fiscal years listed. The explanation
for this difference is . . . as follows: ‘The Allocated
Rate, per Anthem, is adjusted (increased) to account
for a reduction in consumerism on the part of the parti-
cipants who receive financial funding to their [HSAs]
from their employer.1 The percentage of the upward
adjustment in the base Allocated Rate for such partici-
pants is dependent on the financial benefit paid by the
employer to the participant.’ ’’ (Footnote added.)
The plaintiffs commenced the present action in
November, 2018. In the operative amended complaint,
dated February 16, 2023,2 the plaintiffs alleged that,
1
‘‘[A] reduction in consumerism’’ appears to refer to the economic theory
that health insurance creates a moral hazard in that insureds who receive
funding from others toward their health care expenditures will be more
likely to consume health care services and will be less discriminating con-
sumers than insureds who must spend their own funds for the same services.
See, e.g., P. Molk, ‘‘The Ownership of Health Insurers,’’ 2016 U. Ill. L. Rev.
873, 885 (2016) (‘‘In health insurance, moral hazard is the phenomenon
where individuals consume more medical services when they are insured
than when they are uninsured, because insurance reduces the policyholder’s
marginal cost of consuming healthcare. . . . This socially-inefficient con-
sumption raises the price of health insurance and contributes to the country’s
health costs.’’ (Footnote omitted.)).
2
The amended complaint was attached to a request for leave to amend
the complaint, which sought to add the following allegation: ‘‘The [defendant]
and the union entered into a new collective bargaining agreement for the
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following the adoption of the CBA, the defendant failed
to provide them with the ‘‘nature and scope of coverages
. . . in effect for active police officers,’’ in violation of
§ 16 of the pension agreement. (Internal quotation
marks omitted.) Specifically, the plaintiffs alleged that
‘‘retirees who are mandated to enroll in the HDHP plan
are incurring $1000 for individuals and $2000 for fami-
lies in deductible contribution expenses that are not
being incurred by active employees because the defen-
dant is making a 50 percent contribution of the deduct-
ible amount to the HSA.’’ The plaintiffs alleged that the
effect of the HDHP/HSA is that the premium is lower
for each active employee. The plaintiffs further alleged
that, ‘‘[b]ecause the payment of a higher deductible in
order to reduce the individual employee’s premium is
a significant element of the underlying insurance plan,’’
the plaintiffs were not receiving the ‘‘nature and scope
of coverages . . . in effect for active police officers,’’
as required by the pension agreement. (Internal quota-
tion marks omitted.)
The plaintiffs sought a declaratory judgment that,
‘‘under the terms of the pension agreement, the ‘nature
and scope’ of the coverage for active police officers
includes a requirement that the defendant contribute
50 percent of the deductible amount to the plaintiffs’
period commencing July 1, 2020–June 30, 2023, which did not alter the health
insurance plan design provided to active employees or the [defendant’s]
contribution to the active employees’ HSA[s]. The ‘Note’ contained in the
subject CBA, expressly indicating that the HSA contribution does not apply
to retirees, is also contained verbatim in the new agreement. The percentage
of the Allocated Rate that active employees pay for their insurance was,
however, amended and is set forth in article 22.2 of the new agreement.’’
Following the request for leave to amend, the defendant filed an answer to
the amended complaint, in which it admitted the additional allegation. In
its May 2, 2023 order granting the plaintiffs’ request for a mandatory injunc-
tion and awarding damages, the court noted that the defendant had not
objected to the request to amend and ordered the defendant to continue
payment of the HSA contributions through the effective date of the then
current CBA.
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[HSAs] on a pretax or taxable basis based on the plain-
tiffs’ eligibility to maintain [an HSA].’’ The plaintiffs
additionally sought a mandatory injunction requiring
the defendant to pay the deductible amounts to the
plaintiffs for the period covered by the CBAs, and attor-
ney’s fees and costs. The plaintiffs also sought ‘‘[s]uch
further legal and equitable relief as the court deems
appropriate, including an injunction mandating the pay-
ment of sums to fund deductibles . . . .’’
The defendant filed motions to dismiss and to strike
the plaintiffs’ complaint, which were both denied. In
its answer, the defendant asserted the following special
defenses: the plaintiffs were not third-party beneficiar-
ies of the CBA, the plaintiffs lacked standing, the plain-
tiffs lacked the irreparable harm and inadequate remedy
at law necessary for injunctive relief, and the plaintiffs’
request for attorney’s fees was barred by the Ameri-
can rule.3
In lieu of a court trial involving the testimony of
witnesses, the parties submitted the case to the court
for resolution on the basis of the joint stipulation,
agreed upon exhibits, and memoranda of law. On
November 28, 2022, the court, Graff, J., issued its mem-
orandum of decision. After first rejecting the defen-
dant’s claim that the plaintiffs lacked standing, the court
turned to the merits of the dispute over the terms of
the CBA and the pension agreement. The court found
the language of the pension agreement to be clear and
unambiguous. The court noted that ‘‘nature and scope,’’
3
‘‘Connecticut adheres to the American rule . . . [which reflects the idea
that] in the absence of statutory or contractual authority to the contrary, a
successful party is not entitled to recover attorney’s fees or other ordinary
expenses and burdens of litigation . . . . Despite the general rule, our
Supreme Court has recognized exceptions for cases in which the party or
its counsel has acted in bad faith . . . and for cases in which attorney’s
fees are assessed as punitive damages.’’ (Citation omitted; internal quotation
marks omitted.) Palmieri v. Cirino, 226 Conn. App. 431, 438–39, 318 A.3d
440 (2024).
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as used in the pension agreement, are not defined terms
and consulted dictionary definitions to interpret
‘‘ ‘nature and scope of coverages’ ’’ to mean that the
‘‘essence and extent of the coverages shall be those in
effect for active police officers.’’ Because ‘‘coverage’’
is defined by the pension agreement to include deduct-
ibles, the court stated that § 16 of the pension agreement
means that ‘‘active police officers and retirees shall
have the same coverage, which includes deductibles.’’
The court found that the note contained in article
22.1 (A) (2) of the CBA, pursuant to which the defendant
would have no obligation to fund any portion of the
HDHP deductible for retirees, contravened the terms
of the pension agreement, in that it required the retirees
to pay all of the deductible, whereas active police offi-
cers paid only one half of the deductible. The court
stated: ‘‘The funding of the deductible is part of the
essence of the deductible. Indeed, how much a deduct-
ible is and who pays for the deductible are two of the
most important aspects of a deductible. By virtue of
article 22, the defendant is paying health insurance
claims for active police officers by paying [50 percent]
of the active police officers’ deductibles. The plaintiffs
are not receiving this same treatment. Even setting aside
the issue of funding, the court is hard pressed to find
that the plaintiffs and the active police officers have
the same deductibles. While on paper this may be true,
in reality the active police officers are paying $1000 for
individuals and $2000 for families while retirees are
paying $2000 for individuals and $4000 for families.’’
Accordingly, the court determined that the plaintiffs
were entitled to the same deductible contribution pay-
ments as active employees. The court ordered the par-
ties to submit briefs addressing damages, including
‘‘what, if any, deductible amounts each of the plaintiffs
are entitled to recover,’’ and the plaintiffs’ request for
attorney’s fees and costs. On December 16, 2022, the
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defendant filed a motion to reargue, which the court
denied.
On January 27, 2023, the parties filed briefs
addressing damages and attorney’s fees. The plaintiffs
argued that they were entitled to prejudgment interest
and attorney’s fees in addition to HSA contributions for
five years beginning in 2018. Specifically, they con-
tended that they were collectively owed contributions
in the total amount of $36,000. In its brief, the defendant
opposed the plaintiffs’ request for a mandatory injunc-
tion, argued that it was entitled to an offset from the
plaintiffs’ claimed damages in an amount equal to the
difference in the Allocated Rate active employees paid
and the lower rate the plaintiffs paid, and objected to
the plaintiffs’ request for attorney’s fees. The defendant
did not address the plaintiffs’ request for prejudgment
interest. A hearing was held on February 16, 2023. In
its May 2, 2023 order, the court awarded compensatory
damages in the amount requested by the plaintiffs and
declined to award attorney’s fees or prejudgment inter-
est. This appeal and cross appeal followed. Additional
facts and procedural history will be set forth as neces-
sary.
I
The defendant first challenges the subject matter
jurisdiction of the trial court on the basis that the plain-
tiffs’ claim is not justiciable. First, the defendant con-
tends that the plaintiffs lack standing to assert their
claim. Second, it argues that ‘‘[t]he plaintiffs’ prospec-
tive claim for an injunction and declaratory judgment
is not ripe because they have not alleged or proffered
evidence that they will, or are even likely to, need to
pay monies toward the deductible.’’ Because these
claims are interrelated, we discuss them together. We
conclude that the court had subject matter jurisdiction
over the action.
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The following additional procedural history is rele-
vant. On January 22, 2019, the defendant filed a motion
to dismiss the plaintiffs’ complaint, alleging in relevant
part that the court lacked subject matter jurisdiction.
Specifically, the defendant argued: ‘‘(1) the plaintiffs
lack legal standing to enforce the terms of the [CBA]; (2)
the plaintiffs have failed to exhaust their administrative
remedies by failing to bring their cause of action before
the Connecticut State Board of Labor Relations . . .
(3) the plaintiffs have failed to exhaust their administra-
tive remedies by failing to exercise contractual griev-
ance rights set forth in the [CBA]; (4) an injunction
action fails for lack of joinder of a necessary and indis-
pensable party, namely [the union]; and (5) the plaintiffs
fail[ed] to allege an inadequate remedy at law and irrep-
arable harm in order to maintain an injunction action.’’
The plaintiffs filed a memorandum of law in opposition
to the defendant’s motion, in which they argued that
(1) they have standing as third-party beneficiaries pur-
suant to the terms of the pension agreement, (2) the
administrative remedies suggested by the defendant
were not available to the plaintiffs as former members
of the union, (3) even if the union were a necessary or
indispensable party, that would not implicate the
court’s subject matter jurisdiction, and (4) whether the
plaintiffs are entitled to injunctive relief does not impli-
cate subject matter jurisdiction. The defendant filed a
reply brief, and the court, Swienton, J., held argument
on August 12, 2019.
In its November 12, 2019 memorandum of decision,
the court denied the motion to dismiss, determining,
inter alia, that, ‘‘because the plaintiffs allege that they
are each former full-time employees of the defendant
who each retired prior to the adoption of the [CBA], the
plaintiffs have alleged sufficient facts that demonstrate
that they are not parties to the [CBA] and have no duty
to exhaust arbitration procedures required by the [CBA]
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Duso v. Groton

before bringing a direct action against their employer.’’4
In its posttrial brief, the defendant reiterated its con-
tention that the plaintiffs lack standing, arguing that
the plaintiffs are not third-party beneficiaries to the
CBA, which argument the court rejected in its Novem-
ber 28, 2022 memorandum of decision.
We begin our analysis with our standard of review
and relevant legal principles regarding justiciability.
‘‘An issue regarding justiciability, which must be
resolved as a threshold matter because it implicates
this court’s subject matter jurisdiction . . . raises a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in
the record.’’ (Citation omitted; internal quotation marks
omitted.) Milford Power Co., LLC v. Alstom Power,
Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003).
‘‘Justiciability comprises several related doctrines,
namely, standing, ripeness, mootness and the political
question doctrine, that implicate a court’s subject mat-
ter jurisdiction and its competency to adjudicate a par-
ticular matter. . . . Because courts are established to
resolve actual controversies, before a claimed contro-
versy is entitled to a resolution on the merits it must
be justiciable. . . . Justiciability requires (1) that there
be an actual controversy between or among the parties
to the dispute . . . (2) that the interests of the parties
be adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . .
‘‘The declaratory judgment procedure, governed by
[General Statutes] § 52-29 and Practice Book § 17-54 et
4
The defendant filed a motion to reargue the court’s denial of its motion
to dismiss, which the court denied.
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seq., does not relieve the plaintiff from justiciability
requirements. A declaratory judgment action pursuant
to § 52-29 . . . provides a valuable tool by which liti-
gants may resolve uncertainty of legal obligations. . . .
The [declaratory judgment] procedure has the distinct
advantage of affording to the court in granting any relief
consequential to its determination of rights the opportu-
nity of tailoring that relief to the particular circum-
stances. . . . A declaratory judgment action is not,
however, a procedural panacea for use on all occasions,
but, rather, is limited to solving justiciable controver-
sies. . . . Invoking § 52-29 does not create jurisdiction
where it would not otherwise exist.’’ (Citations omitted;
internal quotation marks omitted.) Mendillo v. Tinley,
Renehan & Dost, LLP, 329 Conn. 515, 523–24, 187 A.3d
1154 (2018).
The defendant in the present case claims that the
trial court lacked subject matter jurisdiction on the
basis that the plaintiffs failed to satisfy the related
requirements of standing and ripeness. ‘‘Standing is the
legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court
unless he [or she] has, in an individual or representative
capacity, some real interest in the cause of action, or
a legal or equitable right, title or interest in the subject
matter of the controversy. . . . When standing is put
in issue, the question is whether the person whose
standing is challenged is a proper party to request an
adjudication of the issue . . . . Standing requires no
more than a colorable claim of injury; a [party] ordi-
narily establishes . . . standing by allegations of injury
[that he or she has suffered or is likely to suffer]. Simi-
larly, standing exists to attempt to vindicate arguably
protected interests. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
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determining [classical] aggrievement encompasses a
well-settled twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Browning v. Van
Brunt DuBiago & Co., LLC, 330 Conn. 447, 455, 195
A.3d 1123 (2018).
‘‘[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. . . . [I]n determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged.’’ (Citation omitted; internal quotation marks
omitted.) Pringle v. Pattis, 212 Conn. App. 736, 742–43,
276 A.3d 1042 (2022).
On appeal, the defendant argues that the plaintiffs
lack standing because (1) ‘‘they have failed to allege or
provide any evidence that they have sustained an injury
in fact,’’ and (2) ‘‘they seek benefits as third-party bene-
ficiaries beyond what is provided in the CBA.’’ The
defendant relatedly argues that the plaintiffs’ claims are
not ripe because ‘‘they have not alleged or proffered
evidence that they will, or are even likely to, need to
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pay monies toward the deductible. Thus, the arguments
as to ripeness are the same as those concerning injury
in fact . . . .’’ We are not persuaded.
‘‘The legal remedies of a pensioner are not wholly
prescribed by the collective bargaining agreement itself
but by standard contractual principles, including prom-
issory estoppel and third party beneficiary principles.’’
Flynn v. Newington, 2 Conn. App. 230, 237, 477 A.2d
1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984).
‘‘A third party beneficiary may enforce a contractual
obligation without being in privity with the actual par-
ties to the contract. . . . Therefore, a third party bene-
ficiary who is not a named obligee in a given contract
may sue the obligor for breach. . . . [T]he ultimate test
to be applied [in determining whether a person has a
right of action as a third party beneficiary] is whether
the intent of the parties to the contract was that the
promisor should assume a direct obligation to the third
party [beneficiary] . . . .’’ (Footnote omitted; internal
quotation marks omitted.) Wilcox v. Webster Ins., Inc.,
294 Conn. 206, 217, 982 A.2d 1053 (2009).
It is clear from the plain language of the pension
agreement that the plaintiffs are intended third-party
beneficiaries. Section 16 (C) of the pension agreement
explicitly provides that the defendant is required to
provide the plaintiffs with the same ‘‘nature and scope’’
of health care coverage that it provides to active
employees. Nevertheless, the defendant argues that,
although ‘‘the plaintiffs are third-party beneficiaries to
the CBA in that they are contemplated beneficiaries of
the pension provisions and health care coverage, the
benefits they seek to vindicate are well outside the
scope of those contemplated.’’ (Emphasis omitted.) As
support for this argument, the defendant analogizes the
HSA contributions to a shoe allowance provided to
active employees, for which the retirees would not
‘‘have standing to make a claim . . . .’’
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Although the defendant frames this argument as chal-
lenging subject matter jurisdiction, we do not view it
as such. We view it, instead, as directed toward the
merits of the present declaratory judgment action. The
plaintiffs, as third-party beneficiaries, have standing to
allege that the disparate funding of the health care
deductible between the plaintiffs and the defendant’s
active employees constitutes a breach of the defen-
dant’s obligation under § 16 of the pension agreement,
regardless of how that question is resolved on the mer-
its. See Payne v. TK Auto Wholesalers, 98 Conn. App.
533, 538, 911 A.2d 747 (2006) (‘‘The question of standing
does not involve an inquiry into the merits of the case.
. . . It merely requires allegations of a colorable claim
of injury to an interest that is arguably protected by
[a] statute or common law.’’ (Internal quotation marks
omitted.)). Accordingly, we reject this basis for the
defendant’s argument that the plaintiffs lacked stand-
ing.
With respect to the second prong of the aggrievement
test and the defendant’s related contention that the
plaintiffs’ claims are not ripe, the defendant maintains
that the plaintiffs failed to allege that they have sus-
tained an injury in fact because they did not allege that
they have paid funds toward their deductibles. We are
not persuaded that the absence of such allegations
necessitates the conclusion that the plaintiffs’ interest
has not been specially affected or that the case presents
a hypothetical injury. Moreover, ‘‘a party ordinarily
establishes standing by alleging an injury [that] he has
suffered or is likely to suffer . . . .’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Wilcox v. Web-
ster Ins., Inc., supra, 294 Conn. 218–19 n.17. Thus, we
are persuaded by the plaintiffs’ argument that ‘‘it makes
no difference if the plaintiffs were actually out of pocket
for the payment of medical expenses covered by the
deductible because it is likely that each would require
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some form of medical care or prescription payments
during the 365 days covered by the deductible payment
that was not made.’’ Consequently, the plaintiffs have
alleged that their interests in the pension agreement
have been injuriously affected by the defendant’s failure
to pay 50 percent of the deductible as a contribution
to their HSAs.
Indulging every presumption in favor of jurisdiction,
we conclude that the plaintiffs have satisfied the
requirements for demonstrating standing and that their
claims are ripe. Accordingly, we conclude that the trial
court had subject matter jurisdiction over the action.
II
The defendant next claims that the court improperly
denied its motion to strike because the plaintiffs failed
to join the union as a necessary party. We are not per-
suaded.
The following additional procedural history is rele-
vant to our resolution of this claim. On May 6, 2021,
the defendant filed a motion to strike the plaintiffs’
complaint, alleging, in relevant part, that the complaint
was legally insufficient because of the absence of a
necessary party, the union.5 The plaintiffs objected to
the motion to strike, and the court, Swienton, J., heard
argument on September 21, 2021. In its September 29,
2021 order, the court denied the defendant’s motion.
The court found meritless the defendant’s argument
that the union was a necessary party to the action to
determine the plaintiffs’ rights as third-party beneficiar-
ies to the pension agreement. The court reasoned that
‘‘[t]he entire controversy is between the [defendant]
and the [plaintiffs] who claim, as third-party beneficiar-
ies, that they are entitled to receive certain benefits in
5
The defendant previously had raised the issue of nonjoinder in a motion
to dismiss the plaintiffs’ complaint, but it later withdrew that basis for its
motion to dismiss.
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the same manner as the ‘active’ police officers.’’ The
court determined that it could ‘‘proceed to a decree
without affecting any rights of the union.’’
We begin by setting forth the relevant legal principles
and standard of review. ‘‘Necessary parties . . . are
those [p]ersons having an interest in the controversy,
and who ought to be made parties, in order that the
court may act on that rule which requires it to decide
on, and finally determine the entire controversy, and
do complete justice, by adjusting all the rights involved
in it. . . . [B]ut if their interests are separable from
those of the parties before the court, so that the court
can proceed to a decree, and do complete and final
justice, without affecting other persons not before the
court, the latter are not indispensable parties.’’ (Internal
quotation marks omitted.) Garden Homes Profit Shar-
ing Trust, L.P. v. Cyr, 189 Conn. App. 75, 82 n.4, 206
A.3d 230 (2019). ‘‘Practice Book §§ 10-39 and 11-3 . . .
provide that a party’s exclusive remedy for nonjoinder
or for misjoinder of parties is by the filing of a motion
to strike.’’ (Emphasis omitted; footnotes omitted.) Izzo
v. Quinn, 170 Conn. App. 631, 640, 155 A.3d 315 (2017).
‘‘A motion to strike attacks the legal sufficiency of the
allegations in a pleading. . . . In reviewing the suffi-
ciency of the allegations in a complaint, courts are to
assume the truth of the facts pleaded therein and to
determine whether those facts establish a valid cause
of action. . . . Because a motion to strike challenges
the legal sufficiency of a pleading, and, consequently,
requires no factual findings by the trial court, our review
of the court’s ruling on [a motion to strike] is plenary.’’
(Internal quotation marks omitted.) Pelletier Mechani-
cal Services, LLC v. G & W Management, Inc., 162
Conn. App. 294, 300, 131 A.3d 1189, cert. denied, 320
Conn. 932, 134 A.3d 622 (2016).
The defendant’s principal argument in support of its
claim that the union was a necessary party is that the
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plaintiffs sought ‘‘a reformation of the CBA, and the
trial court has granted that relief, effectively striking
the note in article [22.1 (A) (2)] of the CBA.’’ According
to the defendant, the union was a necessary party to
the effective reformation of the contract. We are not
persuaded that the present action involved a reforma-
tion of the CBA agreement such that the union was a
necessary party. To the contrary, the present action
required the trial court to interpret the benefits provided
in the pension agreement in relation to the benefits
provided in the CBA to active employees. The judgment
rendered by the trial court did not adjust the rights of
the active employees in the union.
The defendant also argues that the collective bar-
gaining process ‘‘involves the sacrifice of certain posi-
tions in negotiation but not others. The inclusion of
HSA contributions for active employees demonstrates
that those provisions may be of significant importance
to the union. A declaratory judgment adverse to the
[defendant] in this case would have the effect of materi-
ally increasing the cost of that benefit, making it more
difficult to bargain for in future CBAs.’’ (Emphasis
added.) Initially, we note that this argument is being
raised for the first time on appeal. The defendant did
not argue in support of its motion to strike that a possi-
ble impact on future negotiations constituted a suffi-
ciently concrete interest that made the union a neces-
sary party to this action. Furthermore, mere speculation
as to the possible effect of the judgment on future
negotiations is insufficient to compel the conclusion
that the union’s rights would be affected such that it
is a necessary party to the action.6 Accordingly, we
conclude that the defendant failed to establish that the
union was a necessary party to the action and the court
6
There is nothing in the stipulated record that supports the defendant’s
assertion that the court’s interpretation of the CBA would have any impact
on future negotiations between the defendant and the union.
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properly denied the defendant’s motion to strike the
complaint.
III
The defendant’s third claim is that the court incor-
rectly interpreted the language of the CBA to conclude
that the defendant was contractually obligated, pursu-
ant to § 16 (C) of the pension agreement, to contribute
50 percent of the deductible amount to the plaintiffs’
HSAs. The defendant argues that ‘‘the trial court gave
the term ‘deductible’ an overly broad interpretation, far
beyond the word’s ordinary meaning and usage, as well
as the parties’ expressed intent,’’ in concluding that the
definition of deductible included the manner in which
the deductible is funded. We disagree.
We begin our analysis with the applicable standard of
review and relevant legal principles regarding contract
interpretation. ‘‘Principles of contract law guide our
interpretation of collective bargaining agreements. . . .
When, as in the present case, the trial court based its
interpretation solely on the language of the contract,
our standard of review is plenary.’’ (Internal quotation
marks omitted.) Gallagher v. Fairfield, 339 Conn. 801,
807, 262 A.3d 742 (2021). ‘‘The intent of the parties as
expressed in a contract is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . the language used must be
accorded its common, natural, and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract. . . . Where the language of the
contract is clear and unambiguous, the contract is to
be given effect according to its terms. A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
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any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms.’’ (Internal
quotation marks omitted.) Honulik v. Greenwich, 293
Conn. 698, 710, 980 A.2d 880 (2009).
With respect to the defendant’s obligation to provide
the plaintiffs with health care insurance, § 16 (C) of
the pension agreement provides in relevant part: ‘‘The
nature and scope of coverages, including but not limited
to deductibles, co-insurance, co-pays and/or limits, shall
be those in effect for active Police Officers, as those
coverages, including but not limited to deductibles, co-
insurance, co-pays and/or limits, may change from time
to time . . . .’’ As noted previously, because ‘‘nature
and scope’’ are not defined in the pension agreement,
the court appropriately consulted dictionary definitions
to interpret ‘‘nature and scope of coverages’’ to mean
that the ‘‘essence and extent of the coverages shall be
those in effect for active police officers.’’ See Garcia
v. Hartford, 292 Conn. 334, 345, 972 A.2d 706 (2009)
(‘‘[w]e ordinarily look to the dictionary definition of a
word to ascertain its commonly approved usage’’).
The court determined that ‘‘[c]overage is defined by
the CBA to include deductibles. Thus, § 16 (C) of the
pension agreement means that active police officers and
retirees shall have the same coverage, which includes
deductibles.’’ The court went on to determine whether
active employees and retirees had the same deductible,
in light of the defendant’s 50 percent funding of the
active employees’ deductibles by way of contributions
to their HSAs. The court concluded that ‘‘[t]he funding
of the deductible is part of the essence of the deductible.
Indeed, how much a deductible is and who pays for
the deductible are two of the most important aspects
of a deductible. By virtue of article 22 [of the CBA], the
defendant is paying health insurance claims for active
police officers by paying [50 percent] of the active police
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officers’ deductibles. The plaintiffs are not receiving
this same treatment. Even setting aside the issue of
funding, the court is hard pressed to find that the plain-
tiffs and the active police officers have the same deduct-
ibles. While on paper this may be true, in reality the
active police officers are paying $1000 for individuals
and $2000 for families while retirees are paying $2000
for individuals and $4000 for families.’’ Accordingly, the
court concluded that, by failing to pay 50 percent of
the deductible as contributions to the HSAs of the plain-
tiffs, the defendant breached its obligation to provide
them with coverage of the same nature and scope that
it provided to active employees.
On appeal, the defendant argues that ‘‘HSA contribu-
tions, or in-kind payments made to active employees
under the CBA, do not constitute ‘coverage’ or the
‘deductible’ for four principal reasons: (1) Such a con-
struction unreasonably broadens the plain meanings of
these terms; (2) such a conclusion fails to interpret the
pension agreement in its proper context as one part of
the larger CBA; (3) such an expansive interpretation
contravenes the manner in which the federal govern-
ment regulates HSAs; and (4) such a determination is
at odds with sister state court decisions.’’ We examine
each argument in turn.
The defendant’s first argument requires that we con-
strue the term deductible as used in the pension agree-
ment. ‘‘We often consult dictionaries in interpreting
contracts . . . to determine whether the ordinary
meanings of the words used therein are plain and unam-
biguous, or conversely, have varying definitions in com-
mon parlance.’’ (Internal quotation marks omitted.)
Centerplan Construction Co., LLC v. Hartford, 343
Conn. 368, 396–97, 274 A.3d 51 (2022). Black’s Law
Dictionary (9th Ed. 2009) p. 475, defines ‘‘deductible’’
as, ‘‘[u]nder an insurance policy, the portion of the loss
to be borne by the insured before the insurer becomes
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liable for payment.’’ This common usage of the term
is consistent with the definition set forth in General
Statutes § 17b-290 (7), and relied on by our Supreme
Court in NEMS, PLLC v. Harvard Pilgrim Health Care
of Connecticut, Inc., Conn. , , A.3d
(2024), which provides that ‘‘ ‘[d]eductible’ means the
amount of out-of-pocket expenses that would be paid
for health services on behalf of a member before becom-
ing payable by the insurer . . . .’’ General Statutes
§ 17b-290 (7).
We agree with the trial court both that the relevant
provision of the pension agreement is unambiguous and
that it precludes the defendant from contributing 50
percent of the deductible to active employees’ HSAs
without making the same contribution to the plaintiffs’
HSAs. In other words, the defendant’s failure to pay
50 percent of the deductible as a contribution to the
plaintiffs’ HSAs resulted in the plaintiffs effectively hav-
ing different deductibles and a different ‘‘nature and
scope’’ of coverage from active employees, in contra-
vention of the terms of the pension agreement. Because
active employees in effect were obligated to pay only
$1000 for individuals or $2000 for families before the
defendant, the self-insured employer, begins paying
their claims, the active employees’ deductibles were
less than those of the plaintiffs.
The defendant maintains, however, that the plaintiffs
and active employees have the same deductible because
the deductible does not include ‘‘the source by which
the deductible is paid.’’7 In support of this contention,
7
The defendant argues: ‘‘These definitions are wholly untethered from
the source by which the deductible is paid. The most obvious reason for
this is that a deductible exists even if it never needs to be paid. If a person
has an insurance plan with a deductible but never makes a claim against
the insurance plan, and thus never has need to pay or fund the deductible,
the insurance coverage nonetheless has a deductible. If the essence of a
deductible is the source by which it is paid, as the trial court held, it could
not exist if it does not need to be paid. This is at odds [with] the ordinary
usage of the term ‘deductible.’ Virtually every insured person whose coverage
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the defendant argues that a contrary interpretation of
the term deductible would mean that, ‘‘if the union
negotiated an increase in salaries, overtime pay, or shoe
allowances to offset rising deductibles, retirees, who
undeniably have no right to such things under the CBA,
would be able to claim those same cash payments as
part of the deductible’s funding.’’ We disagree. The
defendant did not elect to indirectly compensate its
current employees to cover higher employee health care
costs by way of any of those unrelated benefits but,
rather, negotiated article 22.1 (A) (2) of the CBA to
specifically describe the HSA contribution as a ‘‘fifty
percent . . . contribution toward the funding of the
HDHP plan . . . .’’ (Emphasis omitted.) The hypotheti-
cals the defendant posits simply are not before us. What
is before us is a plan by which the defendant expressly
reduced the deductible of its current employees by 50
percent but did not do the same for the plaintiffs. Thus,
the payment of 50 percent of the deductible as a contri-
bution to an HSA is distinct from other possible benefits
that the defendant could have negotiated that would
be untethered to the employees’ health care insurance.
Furthermore, when, as in the present case, the
employer is also the insurer, there is little difference
between whether the defendant provides its employees
with a lower deductible or funds a portion of the deduct-
ible. As previously noted in this opinion, a deductible
‘‘means the amount of out-of-pocket expenses that
would be paid for health services on behalf of a member
before becoming payable by the insurer . . . .’’ General
Statutes § 17b-290 (7). The defendant, as a self-insured
employer, in effect bears the first $1000 or $2000 of its
current employees’ health care costs before the employ-
ees become responsible for any costs when it deposits
one half of the deductible amount in each employee’s
includes a deductible would acknowledge its existence regardless of whether
a claim against their insurance policy had ever been made.’’
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HSA. Thus, the deductible for which the defendant’s
current employees actually are responsible is 50 percent
of that for which the plaintiffs are responsible.
Finally, the defendant’s argument ignores the prefa-
tory language of § 16 (C) of the pension agreement, on
which the trial court relied. Section 16 (C) provides
in relevant part: ‘‘The nature and scope of coverages,
including but not limited to deductibles . . . shall be
those in effect for active Police Officers . . . .’’
(Emphasis added.) This language is broad and expressly
is not limited to the examples, including deductibles,
set forth in § 16 (C). Thus, we agree with the trial court
that the proper inquiry is whether the nature and scope,
i.e., the ‘‘essence and extent of the coverages,’’ are the
same. Even if we were to agree with the defendant that
how the deductible is funded is different than what the
deductible is, there is no question that the nature or
essence of the coverage the plaintiffs receive is less
than that of active police officers.
The defendant’s second argument is that the court
failed to interpret the pension agreement in its proper
context as one part of the larger CBA. Noting that the
pension agreement was incorporated into the CBA, the
defendant states that the defendant and the union had
no reason to address the treatment of contributions to
HSAs in the pension agreement because the defendant
did not offer an HDHP until 2018. At that time, ‘‘the
[defendant] and the union specifically considered
whether a financial contribution to an HSA fell within
the ‘nature and scope of coverages’ of a health insurance
plan since they wrote into the CBA that such a financial
contribution does not relate to the underlying plan but
rather it relates to the funding of the plan for active
employees.’’8 Because the language of the pension
8
Although the defendant mentions article 19 of the pension agreement
in the facts section of its principal appellate brief, it argues for the first
time in its reply brief that the pension agreement was modified pursuant
to article 19 of that agreement, which provides in relevant part that the
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agreement is silent as to financial contributions to
HSAs, the defendant contends that the CBA addressed
a previously unaddressed issue.9 The defendant addi-
tionally relies on general principles of contract interpre-
tation to maintain that the terms of the pension agree-
ment must be interpreted consistently with the CBA.
The defendant contends that the court’s findings that
the HSA contribution is part of the deductible is ‘‘wholly
inconsistent with’’ the note in article 22.1 (A) (2) of
the CBA.10
pension agreement shall continue until a new agreement is signed by the
parties and that negotiations must be in accordance with MERA. ‘‘It is a
well established principle that arguments cannot be raised for the first
time in a reply brief.’’ (Internal quotation marks omitted.) Houghtaling v.
Commissioner of Correction, 203 Conn. App. 246, 287, 248 A.3d 4 (2021).
Consequently, we decline to consider this argument raised for the first time
in the defendant’s reply brief.
9
The defendant cites Gallagher v. Fairfield, supra, 339 Conn. 812, in
support of its argument. In Gallagher, a 1985 collective bargaining agreement
(1985 CBA) provided that certain retired individuals would be entitled to
town paid health insurance coverage. Id., 807–808. Federal law was amended
thereafter to permit municipal employees to participate in Medicare. Id.,
814. The question before our Supreme Court was whether the town, pursuant
to a 2010 collective bargaining agreement, could terminate the retired plain-
tiff’s private health insurance and provide him with comparable town paid
Medicare supplemental insurance, while requiring him to pay the cost of
his Medicare premiums. Id., 803–804, 808–809.
The court in Gallagher agreed with the trial court that the 1985 CBA
did not preclude the town from terminating the plaintiff’s private health
insurance, so long as the town provided him with ‘‘substantially similar
benefits in the form of supplemental Medicare coverage.’’ Id., 816. Notably,
the court rejected the plaintiff’s argument that the 1985 CBA required that he
be placed on the same health insurance plan as the town’s active employees,
recognizing that ‘‘[t]he term ‘active employees’ does not appear anywhere
in the 1985 CBA . . . .’’ Id., 810. The court explained: ‘‘Although it is reason-
able to assume that the parties intended that employees who retired during
the three years when the 1985 CBA was in effect would continue to receive
the retirement benefits enumerated in article IX [of the 1985 CBA] after the
agreement expired in 1987, whether those benefits were to remain static,
be pegged to those due to future active employees under future collective
bargaining agreements, or be defined in some other manner is never
expressly set forth in the agreement.’’ (Emphasis omitted.) Id. Gallagher,
thus, has little relevance to the present case in which the pension agreement
expressly pegged the plaintiffs’ benefits to those of active employees.
10
The defendant additionally contends that the court failed to consider
language contained elsewhere in the CBA that ‘‘compels a narrower interpre-
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The note to article 22.1 (A) (2) of the CBA provides
that the defendant’s 50 percent ‘‘contribution toward
the funding of the HDHP plan is not an element of
the underlying insurance plan, but rather relates to the
manner in which the deductible shall be funded for
active employees. The [defendant] shall have no obliga-
tion to fund any portion of the HDHP deductible for
retirees . . . .’’ (Emphasis omitted.) We are not per-
suaded by the defendant’s arguments that the note to
article 22.1 (A) (2) of the CBA constituted a clarification
of the pension agreement or that it resolved a previously
unaddressed issue. Instead, the language of the pension
agreement is broad enough, considering the definition
of deductible, in light of the ‘‘nature and scope’’ prefa-
tory language, to contemplate that the defendant could
not avoid its obligation to provide the same coverage
by giving active employees targeted dollars to pay their
deductible as opposed to giving them a reduced deduct-
ible. Such a conclusion would render the ‘‘nature and
scope’’ and ‘‘but not limited to’’ language of § 16 (C) of
the pension agreement meaningless.
Moreover, as the plaintiffs argue with respect to the
note to article 22.1 (A) (2) of the CBA, ‘‘[a] statement
claiming [that] contributions to the HDHP deductible
are not elements does not show [that] the parties agreed
to modify the terms of the . . . pension agreement,’’
in that the pension agreement does not refer to ‘‘ele-
ments’’ of health insurance.
tation of the terms ‘coverage’ and ‘deductible.’ ’’ Specifically, the defendant
argues that, because retirees are obligated to pay a greater percentage
of their insurance premiums than active employees, the ‘‘only reasonable
conclusion to be drawn from this premium structure is that the parties to
the CBA meant to provide the same coverage, with the same deductible
amount, but at disparate costs.’’ We are not persuaded by the defendant’s
argument. As the trial court noted, § 16 (F) of the pension agreement
expressly sets forth the percentages of the premiums to be paid by retirees.
Thus, in contrast with deductibles, the pension agreement contemplated
different costs of premiums for retirees and for active employees.
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The defendant’s third argument is that an expansive
interpretation of the term deductible to account for the
HSA contributions ‘‘contravenes the manner in which
the federal government regulates HSAs . . . .’’ In sup-
port of this argument, the defendant maintains that HSA
funds can be used on items other than the payment of
deductibles. The plaintiffs respond by emphasizing that
this argument was not raised before the trial court and
it ‘‘relies upon information that is not in the record
. . . .’’ We agree with the plaintiffs. Both the joint stipu-
lation and the posttrial briefs submitted to the trial
court are devoid of any facts or argument regarding the
manner in which HSA funds may be used.11 Thus, the
trial court was not apprised of the defendant’s position,
raised for the first time on appeal, that the nature of
the HSA funds should be considered in determining
whether the plaintiffs received the same deductible as
active employees. In addition, the plaintiffs were never
given an opportunity to address this argument in the
trial court. Consequently, allowing the defendant to
raise the argument now would constitute trial by ambus-
cade. See Martin v. Todd Arthurs Co., 225 Conn. App.
844, 855, 317 A.3d 98 (2024) (‘‘to permit a party to raise
a claim on appeal that has not been raised at trial—
11
As noted previously, the joint stipulation’s facts related to HSAs are
limited to the following statements: ‘‘Participants in an HDHP are eligible
under the Internal Revenue Code (IRC) § 223, to open and maintain a tax
favored [HSA]. . . . Enrollment in an HDHP does not require a participant
to open an HSA, but the HDHP participant has the option to do so. . . .
Article 22.1 (A) (2) of the CBA expressly requires that active employees
open and maintain an HSA in conjunction with their enrollment in the HDHP.
. . . There is no requirement that any retiree (e.g., any plaintiff) open and
maintain an HSA in conjunction with the HDHP; but retirees, including the
plaintiffs, may have that option. . . . An HSA is a personally established
and owned private bank account that a participant opens and maintains at
a bank of their choosing. . . . Similar to the procedures for ‘direct deposit’
for payment of regular wages (active employees) or monthly pension pay-
ments (retirees), an individual provides the [defendant] with a ‘direct deposit’
authorization form for payment of any funds the individual wishes to have
withheld from their wages/payments and directed to their HSA.’’
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after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party’’ (internal quotation marks omit-
ted)). Finally, we are in no position to assess the defen-
dant’s factual assertions when there is no evidence in
the record to support them. Accordingly, we conclude
that we cannot address this argument because of an
inadequate record. See D2E Holdings, LLC v. Corp. for
Urban Home Ownership of New Haven, 212 Conn. App.
694, 709, 277 A.3d 261 (record was inadequate to con-
sider argument on appeal), cert. denied, 345 Conn. 904,
282 A.3d 981 (2022).
The defendant’s fourth and final argument relies on
nonbinding authority from the Wisconsin Court of
Appeals. In Wisconsin Professional Police Assn. v. Wis-
consin Employment Relations Commission, 352 Wis.
2d 218, 221, 841 N.W.2d 839 (App. 2013), the court
considered two statutory limitations on public sector
collective bargaining under the Wisconsin Municipal
Employment Relations Act (Wisconsin act), Wis. Stat.
§ 11.70 (2011–2012), as amended by 2011 Wis. Act 32.
The Wisconsin act prohibited bargaining regarding
‘‘[t]he design and selection of health care coverage plans
by the municipal employer for public safety employees’’
and regarding ‘‘the impact of the design and selection
of the health care coverage plans on the wages, hours,
and conditions of employment of the public safety
employee.’’ (Internal quotation marks omitted.) Id.,
222–23. Eau Claire County (county) selected a medical
benefit plan, which set deductibles for individuals and
families, covering the deputy sheriffs employed by the
county. Id., 223. The association representing the dep-
uty sheriffs (association) made a proposal pursuant to
which the deputy sheriffs would pay the first portion
of the deductible in the amounts of $250 for single
persons or $500 for families. Id., 223–24. In response,
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the county maintained that the proposal concerned a
subject that could not be bargained under the Wisconsin
act. Id., 224.
The county and the association jointly sought from
the Wisconsin Employment Relations Commission
(commission) a declaratory ruling as to whether the
proposal addressed a prohibited subject, and the com-
mission concluded that it did. Id. The circuit court
reversed the commission’s decision, and the commis-
sion and the county appealed. Id. On appeal, the court
concluded that ‘‘the only reasonable interpretation is
that the [Wisconsin act] does not prohibit bargaining
regarding’’ what it termed the ‘‘deductible payment allo-
cation’’; id., 226; that is, ‘‘the allocation of responsibility
between employees and employers to pay deductibles
required under a health care coverage plan.’’12 Id., 222.
The court proceeded with its statutory interpretation,
relying on the following premises: ‘‘[T]he [c]ounty is
free to design and select, in any manner it chooses and
without negotiation with the [a]ssociation, a plan that
includes no deductibles or deductibles of any amount.
That is, the existence and amounts of deductibles are
elements of a plan, or elements of plan design, that the
[c]ounty may unilaterally create or pick in any way.’’
Id., 232. Thus, the dispute centered on whether the
deductible payment allocations were elements of
‘‘health care coverage plans . . . .’’ (Internal quotation
marks omitted.) Id. The court concluded, as a matter
of plain language interpretation, that they were not.
12
The court in Wisconsin Professional Police Assn. v. Wisconsin Employ-
ment Relations Commission, supra, 352 Wis. 2d 230, first identified a point
of agreement between the parties, specifically, that the ‘‘design and selection
of . . . plans’’ language in the Wisconsin act ‘‘covers the decision as to
whether a plan will have deductibles, and if so, in what amounts. Consistent
with this understanding, the [a]ssociation did not propose bargaining with
the [c]ounty over the existence or size of the deductibles in the plan selected
by the [c]ounty, and does not now suggest that this is a mandatory bargaining
subject.’’ (Internal quotation marks omitted.)
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Id. Specifically, the court reasoned that health care
coverage plans address the rights and obligations flow-
ing between the insurer and the insured and that any
element of a plan must concern these rights and obliga-
tions. Id., 233. Although a deductible concerns these
rights and obligations, the court found the deductible
payment allocation to be extrinsic to these rights and
obligations because it is ‘‘an allocation not between
insurer and insured, but between employer and
employee.’’ Id. The defendant in the present case also
quotes an unpublished Wisconsin decision that relies
on Wisconsin Professional Police Assn. to conclude
that ‘‘the allocation between [Manitowoc] County and
its employees of payments made into an employee’s
HSA is not an element of the ‘health care coverage plan’
designed and selected by [Manitowoc] County and is
therefore not a prohibited subject of bargaining.’’
Manitowoc County Sheriff Dept. Employees v. Manito-
woc County, Docket No. 2013AP1, 2015 WL 13123098,
*2 (Wis. App. March 4, 2015), review denied, 865 N.W.2d
502 (Wis. 2015).
We are not persuaded by the nonbinding authority
cited by the defendant. First, we disagree with the
defendant that the issue considered by the Wisconsin
Court of Appeals was ‘‘precisely the same as the one
at bar.’’ The Wisconsin court was tasked with interpre-
ting a statute containing different prefatory language
than that at issue in the present case. Specifically, the
Wisconsin act prohibited bargaining regarding ‘‘the
design and selection of health care coverage plans’’
and the court, in conducting its analysis, considered
whether the deductible payment allocation constituted
an ‘‘element’’ of a health care coverage plan. (Emphasis
omitted; internal quotation marks omitted.) Wisconsin
Professional Police Assn. v. Wisconsin Employment
Relations Commission, supra, 352 Wis. 2d 231–32. This
analysis contrasts with the question presented before
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this court, namely, whether ‘‘the nature and scope of
coverages, including but not limited to deductibles’’ are
the same for the plaintiffs as for the active employees
where the defendant funds 50 percent of the active
employees’ deductibles through HSA contributions.
Wisconsin Professional Police Assn. is distinguish-
able in another important respect. Its reasoning was
premised on the relationship between three parties—
the employer, the insured employee, and an insurer.
See Wisconsin Professional Police Assn. v. Wisconsin
Employment Relations Commission, supra, 352 Wis.
2d 233. Indeed, the court determined that the deductible
payment allocation was ‘‘extrinsic’’ to the rights and
obligations between the insurer and the insured
because it is ‘‘an allocation not between insurer and
insured, but between employer and employee.’’ Id. As
the parties in the present case stated in their joint stipu-
lation, the defendant ‘‘self-insures its group health insur-
ance benefits. . . . [Anthem], through an administra-
tive services contract with the [defendant], administers
the benefits on the [defendant’s] behalf. . . . As a town
offering self-insured health benefits to its employees
and retirees, the [defendant] does not pay any portion
of a ‘premium’ to Anthem but is billed by Anthem for
the total cost of all claims made by active employees
and retirees for health insurance benefits together with
an administrative fee collected by Anthem, as the
administrator.’’ Thus, the present case is factually dis-
tinguishable from Wisconsin Professional Police Assn.
because the defendant is both the employer and the
insurer, and its payment of 50 percent of the deductible
into the active employees’ HSAs means that the defen-
dant effectively pays the first $1000 or $2000 of costs
before the active employees use the portion of the
deductible that they funded.
For the foregoing reasons, we conclude that the trial
court correctly determined that the defendant’s pay-
ment of 50 percent of the deductible as a contribution
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to only the active employees’ HSAs contravenes the
terms of the pension agreement because the effect of
the defendant’s action is that the plaintiffs do not
receive the same ‘‘nature and scope of coverages,
including but not limited to deductibles,’’ as active
employees.
IV
The defendant’s final claim on appeal is that the court
erred in awarding damages to the plaintiffs. Specifically,
the defendant argues that the court’s damages award
‘‘places the plaintiffs in a materially better position than
they would have been had they been paid HSA contribu-
tions or other in-kind payments.’’ We are not persuaded.
The following additional procedural history is rele-
vant. As noted previously, the court, in its memorandum
of decision, ordered the parties to submit briefs
addressing damages. The plaintiffs, in their brief, in
addition to requesting prejudgment interest and attor-
ney’s fees, argued that they were entitled to HSA contri-
butions for five years beginning in 2018. In its brief, the
defendant argued, inter alia, that the plaintiffs were not
entitled to the full amount of the HSA contributions on
the basis of the following stipulated fact: ‘‘Following
the move of all active police officers and retirees from
the PPO plan to the HDHP in 2018, the Allocated Rate
for the active police officers, compared to the Allocated
Rate for the retirees, in each of the ‘Single,’ ‘Two-Person’
and ‘Family’ categories is approximately 6.5 percent
more for active police officers in each of the fiscal
years listed.’’ According to the defendant, because the
plaintiffs would have been charged higher Allocated
Rates for their health insurance premiums had they
received the HSA contributions, the defendant was enti-
tled to offset the HSA contributions to cover the per-
centage of the higher Allocated Rates that the plaintiffs
would have paid. The plaintiffs responded that, because
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‘‘the financial benefit justifying the upward adjustment
was not paid by the employer to benefit the participant
in the applicable plan year, it is apparent that the under-
lying condition justifying the rate increase did not
occur.’’ Specifically, the plaintiffs referred the court to
the joint stipulation, which provided the explanation
for the difference in the Allocated Rate, specifically,
that ‘‘ ‘[t]he Allocated Rate, per Anthem, is adjusted
(increased) to account for a reduction in consumerism
on the part of the participants who receive financial
funding to their [HSAs] from their employer. The per-
centage of the upward adjustment in the base Allocated
Rate for such participants is dependent on the financial
benefit paid by the employer to the participant.’ ’’
According to the plaintiffs, ‘‘[i]t must be presumed that
there was no ‘reduction in consumerism’ in the plain-
tiffs’ spending on health care costs to warrant the pre-
mium increase because the plaintiffs did not receive
the benefit in the applicable plan year.’’ The court held
a hearing on February 16, 2023. In its May 2, 2023 order,
the court declined to deduct the 6.5 percent increase
in premium from its award of the HSA contributions.

On appeal, the defendant’s claim with respect to dam-
ages is limited to its contention that the court erred in
declining to deduct the 6.5 percent from the plaintiffs’
damages. We begin with the applicable standard of
review. ‘‘As a general matter, [t]he trial court has broad
discretion in determining whether damages are appro-
priate. . . . Its decision will not be disturbed on appeal
absent a clear abuse of discretion.’’13 (Internal quotation
marks omitted.) Wall Systems, Inc. v. Pompa, 324 Conn.
718, 729, 154 A.3d 989 (2017).
13
The defendant contends that the proper standard of review of the court’s
award of damages is plenary. We disagree, as the defendant’s claim does
not present questions of law but, rather, challenges the propriety of the
court’s damages award. Thus, the abuse of discretion standard is appropriate.
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With this deferential standard in mind, we conclude
that the damages award was appropriate. The court
expressly rejected the defendant’s contention that it
was entitled to an offset for the 6.5 percent increase in
premium that the plaintiffs would have incurred had
they received the HSA contributions. This rejection was
supported by the undisputed evidence that the increase
in premium was ‘‘to account for a reduction in consum-
erism on the part of [the] participants who receive finan-
cial funding to [their HSAs] from their employer.’’ Thus,
we are persuaded by the plaintiffs’ argument that,
because they did not receive the benefit of the contribu-
tions to their HSAs in real time, the justification of
a reduction in consumerism underlying the premium
increase did not occur and the reduction should not be
applied retroactively to them. Accordingly, we conclude
that the court did not abuse its discretion in awarding
damages.
V
In their cross appeal, the plaintiffs claim that the
court abused its discretion in denying their request for
attorney’s fees as a sanction for the defendant’s bad
faith litigation conduct. We are not persuaded.
The following additional procedural history is rele-
vant to our resolution of this claim. On November 21,
2019, the plaintiffs filed a motion for sanctions and a
memorandum of law in support. Therein, they sought
recovery of attorney’s fees incurred in responding to
the defendant’s motion to dismiss, which they alleged
raised baseless claims that were without factual support
and were contrary to controlling precedent.14 The defen-
dant filed an objection and a memorandum of law in
14
The plaintiffs also alleged that the ‘‘defendant engaged in deceitful con-
duct to obtain a postponement of [a] hearing scheduled for December 17,
2018, at which time the plaintiff[s] would have (at the very least) been able
to obtain a ruling on subpoenaed documents. The defendant then refused
to abide by the agreement to provide documents subpoenaed, which was
a prerequisite to the plaintiffs’ agreement that led to the postponement of
the hearing on December 17, 2018.’’
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opposition to the motion for sanctions. The court,
Swienton, J., denied the motion, stating that it could
not find that the defendant had acted in bad faith in
moving to dismiss the plaintiffs’ complaint. In their Jan-
uary 27, 2023 posttrial brief addressing damages and
attorney’s fees, the plaintiffs reiterated their claimed
entitlement to sanctions related to the defendant’s
motion to dismiss, which the defendant disputed in its
posttrial brief. The court held a hearing on February
16, 2023, during which both parties presented argument
with respect to attorney’s fees.15
In its May 2, 2023 order, the court declined to award
attorney’s fees because the plaintiffs failed to establish
that the defendant had acted in bad faith. Specifically,
the court stated: ‘‘The record does not reflect clear
evidence that the challenged acts by the defendant are
entirely without color or that the acts were taken for
reasons of harassment or delay or for other improper
purposes. . . . Indeed, both sides made arguments in
good faith to the court regarding the interpretation of
the pension agreement and the CBA.’’ (Citation omit-
ted.)
We begin our analysis by setting forth the relevant
legal principles regarding awards of attorney’s fees for
litigation misconduct. ‘‘[T]his state follows the general
rule that, except as provided by statute or in certain
defined exceptional circumstances, the prevailing liti-
gant is ordinarily not entitled to collect a reasonable
[attorney’s] fee from the loser. . . . That rule does not
apply, however, where the opposing party has acted in
bad faith. . . . It is generally accepted that the court
15
The plaintiffs’ counsel stated: ‘‘I know that the motion for sanctions has
already been decided and would be considered the law of the case and, of
course, Your [Honor is] not bound by the law of the case if Your Honor
believes a different decision would be made, but I suspect that if I have—
that the only review of that decision . . . for me or my clients would be
on appeal.’’
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has the inherent authority to assess attorney’s fees
when the losing party has acted in bad faith, vexatiously,
wantonly or for oppressive reasons. . . . This bad faith
exception applies, not only to the filing of an action,
but also in the conduct of the litigation. . . . It applies
both to the party and his counsel. . . .
‘‘We have explained that, in order to impose sanctions
under the bad faith exception, the trial court must find
both that the litigant’s claims were entirely without
color and that the litigant acted in bad faith. . . . The
court must make these findings with a high degree of
specificity . . . . The requirement of an independent
finding that the challenged actions or claims are entirely
without color ensures that fear of an award of [attor-
ney’s] fees against them will not deter persons with
colorable claims from pursuing those claims . . . .
The requirement of that independent finding means
that, if a court concludes that a claim is colorable, it
cannot award attorney’s fees, even if the court were to
conclude that the person against whom sanctions are
sought acted in bad faith. When, as in the present case,
the actor’s bad faith is predicated on the theory that
he knowingly brought claims entirely lacking in color,
colorability and bad faith are, by necessity, closely
linked. . . .
‘‘Colorability is measured by an objective standard,
whereas bad faith is measured by a subjective one.
Colorability focuses on the merits of the claim. A color-
able claim is defined as one that is legitimate and that
may reasonably be asserted, given the facts presented
and the current law (or a reasonable and logical exten-
sion or modification of the current law). . . . Put
another way, a claim is colorable if, given the facts
presented and the current law (or a reasonable exten-
sion thereof), the claim arguably has merit. Although
we have stated that the standard for colorability varies
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depending on whether the person against whom sanc-
tions are sought is a party or the party’s attorney . . .
the inquiry is the same in either case. As the United
States Court of Appeals for the Second Circuit has
explained, [a] claim is colorable, for the purpose of the
bad faith exception, when it has some legal and factual
support, considered in light of the reasonable beliefs
of the individual making the claim. . . . Put simply, the
colorability inquiry asks whether there is a reasonable
basis, given the facts, for bringing the claim, regardless
of whether it is brought by an attorney or a party.
‘‘A determination of bad faith, by contrast, rather
than focusing on the objective, reasonable beliefs of
the person against whom sanctions are sought, focuses
on subjective intent. We have emphasized that, in
determining whether a party has engaged in bad faith,
[t]he appropriate focus for the court . . . is the con-
duct of the party in instigating or maintaining the litiga-
tion. . . . From that conduct, the court may infer the
subjective intent of the person against whom sanctions
are sought. Some examples of evidence that would sup-
port a finding of bad faith include a party’s use of
oppressive tactics or its wilful violations of court orders
. . . or a finding that the challenged actions [are taken]
for reasons of harassment or delay or for other improper
purposes . . . .’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Lederle v. Spivey,
332 Conn. 837, 843–46, 213 A.3d 481 (2019).16
16
The plaintiffs rely on Lederle v. Spivey, supra, 332 Conn. 846, in support
of their claim that the court abused its discretion in declining to award
attorney’s fees. We note that our Supreme Court in Lederle applied the
appropriate deferential standard of review to conclude that the trial court
did not abuse its discretion in awarding attorney’s fees. Id. In contrast, the
plaintiffs in the present case must overcome the high hurdle of establishing
an abuse of discretion. See Jacques v. Jacques, 223 Conn. App. 501, 510,
309 A.3d 372 (2024) (‘‘[u]nder the abuse of discretion standard of review,
[w]e will make every reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse of discretion’’ (internal
quotation marks omitted)). The plaintiffs have not cited any cases in which
our appellate courts have determined that a trial court abused its discretion
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‘‘Generally, we apply the abuse of discretion standard
when reviewing a trial court’s decision to deny an award
of attorney’s fees. Under the abuse of discretion stan-
dard of review, [w]e will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling,
and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did.’’ (Internal quotation marks omitted.)
Barber v. Barber, 193 Conn. App. 190, 203–204, 219 A.3d
378 (2019).
In the present case, the court accurately set forth the
relevant legal standard in denying the plaintiffs’ request
for attorney’s fees. See Cokic v. Fiore Powersports,
LLC, 222 Conn. App. 216, 229, 304 A.3d 179 (2023). The
court then made findings that the plaintiffs failed to
prove both that the defendant’s claims were entirely
without color and that the defendant acted in bad faith.
As noted previously, the plaintiffs’ failure to prove
either prong required the court to deny their request
for attorney’s fees. See Berzins v. Berzins, 306 Conn.
651, 663, 51 A.3d 941 (2012) (reversing judgment award-
ing attorney’s fees because, although court found
administrator’s actions were without color, it did not
make separate finding that administrator acted in
bad faith).
The defendant responds to the plaintiffs’ claim by
maintaining that the plaintiffs’ failure to offer any evi-
dence in support of their request for attorney’s fees
‘‘deprived the court of any basis on which to find that
the [defendant’s] claims were not colorable, let alone
that they were made with subjective bad faith.’’ The
plaintiffs, in their reply brief, acknowledged that they
in declining to award attorney’s fees in response to a claim of bad faith
litigation conduct.
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had received a hearing on their motions for sanctions
and that they did not request to present evidence. They
maintain that evidence was unnecessary because their
motion for sanctions was based on the defendant’s
claims as raised in its motion to dismiss. On this record,
we conclude that the plaintiffs have not sustained their
burden of demonstrating that the court abused its dis-
cretion in denying their request for attorney’s fees
because the court reasonably could have determined
that the plaintiffs failed to prove both that the defen-
dant’s claims, as raised in its motion to dismiss, were
entirely without color and that the defendant acted in
bad faith.17 See Jacques v. Jacques, 223 Conn. App. 501,
516, 309 A.3d 372 (2024) (‘‘[c]onclusory statements that
the plaintiff lacked a colorable claim or acted in bad
faith are not sufficient to meet the high threshold
required under our law’’).
Accordingly, we conclude that the court did not abuse
its discretion in declining to award attorney’s fees.
The judgment is affirmed.
In this opinion the other judges concurred.

17
In light of our conclusion, we need not address the defendant’s con-
tention that the plaintiffs’ motion improperly failed to specify whether the
award for attorney’s fees was sought against the defendant or its counsel.