Opinion
No. FST CV 07-4012393 S
March 16, 2011
Memorandum of Decision
This is a contract action arising out of a collective bargaining agreement between Norwalk schools and their unionized custodians. In the original complaint, dated August 30, 2007, the plaintiff, John Mosby, alleged causes of action claiming (1) breach of contract, (2) violation of the due process clause of the fourteenth amendment to the United States Constitution, and (3) violation of the contract clause, U.S. Const., art. I, § 10, against the Norwalk board of education (the defendent). On September 22, 2009, the court, Tierney, J., granted the defendant's motion to strike the second and third counts, eliminated the claim for attorneys fees and ordered the plaintiff to amend his complaint to delete claims for punitive damages.
The breach of contract claim is the only count remaining in the action. Presently at issue is the defendant's motion for summary judgment dated June 30, 2010 which claims that there are no issues of material fact and that summary judgment should enter in favor of the defendant on the breach of contract claim.
The breach of contract claim is set forth in the plaintiff's amended complaint, filed on October 13, 2009. In that complaint, the plaintiff claims that he worked for the defendant for more than thirty years before retiring in 1999 under the terms of the Norwalk Pension Plan from his job as a head custodian. His employment was governed by a collective bargaining agreement (the 1997-2003 agreement) between the defendant and Local 1042 of Council #4 Custodians and Maintenance (Local 1042), which was a contract for the period between July 1, 1997 and June 30, 2003. In his papers filed in opposition to the motion for summary judgment, the plaintiff indicates that he served as the principal negotiator for Local 1042 in the process that led to the 1997-2003 agreement, that he was the president of Local 1042 and that he also negotiated other collective bargaining agreements prior to July 1, 1997.
Although the amended complaint reads like a class action, no class has been certified, and the plaintiff brings this suit in his individual capacity and not as a class representative.
In his complaint, the plaintiff alleges that when he retired, the 1997-2003 agreement provided the defendant's employees with an insurance program known as Anthem Blue Cross and Blue Shield of Connecticut Century Preferred Plan (the Century Preferred Plan), which required maximum co-payments of $5 for various medical care (including preventive, hospital and emergency care), $6 for brand-name drugs and $3 for generic drugs.
The schedule of benefits attached to the complaint indicates that co-payments for some emergency services under the Century Preferred Plan exceeded $5. The listed co-payments were $25 per emergency-room visit and $10 per visit to urgent care.
A copy of the 1997-2003 agreement is attached to the complaint. Article VI of the 1997-2003 agreement addresses the insurance plan. Paragraph three of Article VI provides as follows: "The Board of Education agrees to maintain upon retirement the existing medical insurance program for the benefit of the employees and their immediate families at no cost to the employees. Employees over sixty-five (65) years of age and protected by Medicare shall be covered in accordance with the terms of the present existing medical insurance plan. Employees retired under the terms of the Norwalk Pension Plan and in accordance therewith and their dependents shall be covered in accordance with the existing medical insurance plan."
The plaintiff alleges that beginning in 2006, the defendant unilaterally changed health insurance coverage, resulting in higher co-payments for medical care, prescription drugs and vision care and the elimination of dental coverage. According to the plaintiff, this is a breach of the 1997-2003 agreement.
On November 2, 2009, the defendant filed its answer and special defenses. The special defenses are (1) plaintiff's failure to mitigate damages; (2) statute of limitations; and (3) successive bargaining agreements between the defendant and Local 1042 constitute an accordance and satisfaction. On November 5, 2009, the plaintiff denied each of the special defenses. On February 9, 2010, the defendant filed an amended answer. In its amended answer, the defendant admitted that under successor collective bargaining agreements between the defendant and Local 1042, certain prescription drug co-payments increased from the values set in the 1997-2003 agreement but denied breaching the 1997-2003 agreement.
In its motion for summary judgment the defendant claims that it did not breach the 1997-2003 agreement as a matter of law. Attached to the motion are the following exhibits and affidavits: (A) a copy of the 1997-2003 agreement; (B) a copy of the 2003-2008 agreement; (C) affidavit of Fay T. Ruotolo (Ruotolo), the Norwalk Public Schools human resources officer; (D) affidavit of Robert Lindberg, managing principal with Lindberg Ripple, Inc., the defendant's independent benefits consultant. On January 25, 2011, the plaintiff filed his memorandum in opposition to summary judgment. Attached to the opposition is the affidavit of the plaintiff and the following exhibits: (1) a copy of the 1997-2003 agreement; (2) a copy of the description of benefits of the Century Preferred Plan. This court heard oral arguments in this motion on February 14, 2011.
"Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. . . . Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party." (Citation omitted; internal quotation marks omitted.) Estrada v. Stamford Board of Education, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002313 (November 19, 2010, Tobin, J.). In her affidavit, Ruotolo has authenticated the defendant's exhibit A. None of the other exhibits filed in this summary judgment motion has been authenticated. Because none of the parties has objected to this procedural defect, the court will consider each of the exhibits.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210 (2010). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471 (2010).
"A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 355 (2010). "The question is not what intention existed in the minds of the parties but what intention is expressed in the language used." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 661 (2004). "The interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement." Collins v. Sears, Roebuck Co., 164 Conn. 369, 374 (1973). "It is well established that [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Emphasis omitted; internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Ass'n., Inc., 300 Conn. 254, 259-60 (2011). "[W]hen the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing." (Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 194 (2009).
"Furthermore, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Ass'n, Inc., supra, 300 Conn. 260-61. "Such ambiguity permits the trial court's consideration of extrinsic evidence as to the conduct of the parties." (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 623 (2010).
The defendant argues in its brief that nothing within the 1997-2003 agreement prevented it from changing the insurance benefits provided to the plaintiff. Furthermore, the defendant claims that there was no change in contractually mandated benefits between the 1997-2003 and 2003-2008 agreements, and thus, the plaintiff cannot establish a claim for breach of contract. The defendant argues that even if there were a vested right to the benefits under the 1997-2003 agreement, the defendant did not commit breach by altering the prescription drug co-payments.
The defendant first argues that the 1997-2003 agreement contains no specific reference to prescription drug benefits and does not provide for dental insurance but does provide for medical insurance benefits for retired employees. The 1997-2003 agreement does not specify the amount of the co-payments but does state in relevant part in Article VI, paragraph 1 that "[t]he Board shall provide the following medical and health benefits for each full-time permanent employee and his or her dependents: a. A non-standard Blue Cross/Blue Shield Century Preferred plan as identified in arbitration proceedings leading to this Agreement." (D's Exh. A, p. 6). Article VI, paragraph 4 states: "The terms and conditions of each of the above benefits are described in a plan summary, when completed will be included by reference into this Agreement." (D's Exh. A, p. 7). Under the description of benefits, the co-payment was $3 for "generic drugs" and $6 for "brand-name drugs." (P's Exh. 2). Furthermore, Ruotolo, the human resources officer for Norwalk Public Schools, attests in her affidavit that "the co-payments during the effective dates of 1997-2003 CBA (and/or at the time of the plaintiff's retirement in 1999) were $3 for generic drugs and $6 for brand-name drugs." (D's Exh. C, p. 5). The 1997-2003 agreement states that "[t]he Board of Education agrees to maintain upon retirement the existing medical insurance program for the benefit of the employees and their immediate families at no cost to the employees." (D's Exh. A, p. 6). Under the 2003-2008 agreement, there are co-payments of $5 for "generic drugs," $15 for "formulary drugs" and $25 for "non-formulary drugs," with double co-payments for a three-month supply of drugs procured by mail order. (D's Exh. B, p. 9). Accordingly, this represents an increase of $2 for generic drugs and an increase of between $9 and $19 for other drugs between the two periods.
There is some disagreement between the parties as to the scope of the changes in medical insurance benefits after the plaintiff's retirement. In his affidavit, the plaintiff attests that the defendant eliminated dental coverage beginning in 2006. (P's affidavit, p. 21). Conversely, Ruotolo attests that "[c]overage at the defendant's expense for retirees for dental insurance (as opposed to medical insurance) was not required under the 1997-2003 [agreement] or any of the collective bargaining agreements in effect at all relevant times." (Ruotolo affidavit, p. 3-4). The plaintiff has not brought forth any proof showing that dental coverage was included in the 1997-2003 agreement. The Century Preferred Plan description of benefits submitted by the plaintiff contains no reference to dental care. (P's Exh. 2). Accordingly, the plaintiff has failed to show that there is a genuine issue of material fact as to dental coverage under the 1997-2003 agreement. The parties' briefs and the oral argument focused on the changes in prescription drug co-payments.
Accordingly, the court will limit its discussion to the prescription drug co-payments.
In their memoranda, the parties refer to the "formulary drugs" as "preferred brand name drugs" and to "non-formulary drugs as "non-preferred brand name drugs."
The defendant argues that unlike the 2003-2008 agreement, the 1997-2003 agreement did not specifically set forth a prescription drug benefit. The 1997-2003 agreement did provide that the terms of the benefits "when completed will be included by reference into this Agreement." (D's Exh. A, p. 7). In response, the plaintiff argues that the 1997-2003 agreement's specific reference to the "non-standard Blue Cross/Blue Shield Century Preferred plan," which contains explicit $3 and $6 co-payments, defeats the defendant's argument.
The language of the 1997-2003 agreement implies that the terms of the benefit were not yet complete and that they would be incorporated by reference into the agreement once they were finalized. "Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. Where . . . the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be interpreted together as the agreement of the parties . . . The documents incorporated need not be attached to the contract nor signed or initialed unless the contract so requires." (Internal quotation marks omitted.) 566 New Park Associates, LLC v. Blardo, 97 Conn.App. 803, 810-11 (2006). In contrast, "[w]here the document referred to is not in existence at the time the principal contract is made, the enforceability of the incorporated terms may be jeopardized. Where the principal agreement contains the essential elements of a valid contract, and further binds the parties to terms to be established by one party in futuro, the danger exists that the critical elements of knowledge of, and assent to, the additional terms will be missing . . . If the provisions to be incorporated will only explain or particularize the obligations of the parties under the principal contract, there is no obstacle to the enforcement of those supplemental provisions. But where the added terms, established by one of the parties, modify or contradict a material term of the original valid contract, the incorporated terms must fall." (Citation omitted.) Housing Authority v. McKenzie, 36 Conn.Sup. 515, 519, 412 A.2d 1143, cert. denied, 179 Conn. 751 (1979).
The defendant has not disputed the authenticity of the copy of the description of benefits provided by the plaintiff. There is no argument that this description of benefits does not accurately portray the benefits that were in existence during the 1997-2003 agreement. In fact, the attestations of Ruotolo in her affidavit are consistent with the description of benefits. Accordingly, viewed in the light most favorable to the plaintiff, the description of benefits; (P's Exh. 2); is the "plan summary" referred to in the 1997-2003 agreement and was properly incorporated into the 1997-2003 agreement in order to particularize the obligations of the parties.
As a separate argument, the defendant contends that the words "existing" and "present existing" as used in the 1997-2003 agreement allow for the co-payments for retirees to change after retirement because the words are transitory in nature and because insurance plans and delivery platforms change over time due to fluctuations in the insurance market. In response, the plaintiff argues that the "present existing medical insurance plan" was the specific Century Preferred Plan referred to in the 1997-2003 agreement which included a $3 co-payment for generic drugs and a $6 co-payment for brand-name drugs. At oral argument, the parties continued to disagree as to what the words "existing" and "present existing" mean. In the opinion of the court, these words are susceptible to at least two reasonable interpretations, namely (1) that the $3 and $6 co-payments are part of the "existing medical insurance plan" and are contractually guaranteed until the death of the retiree, or (2) that the 1997-2003 agreement mandates that retirees are covered under the Century Preferred Plan per se and not under any specific provision of that plan in effect at the time of retirement. Accordingly, the court decides that viewed in the light most favorable to the plaintiff, the words "existing" and "present existing" as used in the 1997-2003 agreement are ambiguous.
The defendant does not provide any relevant law in support of its argument regarding the meaning of "existing" and "present existing." The one case cited by the defendant, International Union, United Automobile, Aerospace Agricultural Implement Workers of America, U.A.W. v. Skinner Engine Co., 188 F.3d 130 (3d Cir. 1999), is inapposite. In Skinner Engine, the collective bargaining agreement used the phrases " will continue" and "shall remain," such as "Company will continue to provide catastrophic major medical coverage, all costs being borne by the Company," and "Life Insurance Coverage for retirees shall remain at $3,000 during the term of this Agreement." (Emphasis in original; internal quotation marks omitted.) Id., 143. The Third Circuit noted that this language served as a reference to predecessor collective bargaining agreements and was placed in the agreement to indicate that certain coverage will remain unchanged and continue from the predecessor agreements to the current agreement. Id., 142-43. "Accordingly, when read in proper context, there appears no textual support for the . . . contention that the use of the phrases, `shall remain' and `will continue,' manifested an intent on the part of contracting parties to vest life and medical insurance benefits for retirees. Rather than indicating a promise on the part of the company to provide such coverage CT Page 7238 prospectively for the life of the retiree, the phrases were used to indicate a continuation of prior practice and policies." (Emphasis in original). Id., 143. In the present case, however, the defendant has not argued that the "existing" and "present existing" language is a reference to previous collective bargaining agreements. Thus, the holding of Skinner Engine does not shed any light on what the parties meant by these phrases.
The defendant also argues that certain "date-driven language" used in another subsection of the insurance provisions of the 1997-2003 agreement indicates that the phrase "existing" was not meant to lock in the values of the co-payments. Specifically, the 1997-2003 agreement says, "The Union has reviewed the non-standard Century Preferred Plan and agrees with the Board that the scope of conditions covered by this program is and will be equal to or better than the program in effect on June 30, 1997." (D's Exh. A, p. 6). In light of this provision, the defendant argues that the parties could have utilized similar language referencing a specific date in order to bind the defendant to the co-payments provided for by the agreement. This particular provision and the clauses that are the subject of this action have vastly different purposes. Thus, the parties' choice to use a specific date in one section and not to use a specific date in another wholly unrelated section of the contract does not inform on what the parties meant by the "existing" and "present existing" phrases.
Having determined that the contractual language is ambiguous, the court can examine extrinsic evidence to ascertain whether there is a genuine issue of material fact. The extrinsic evidence includes affidavits submitted by two parties with knowledge of the agreement, Ruotolo and the plaintiff. Ruotolo attests that she "[has] been involved in the collective bargaining process with the Schools' unionized employees" and that she knows the plaintiff. (Ruotolo affidavit, p. 1). With respect to the plaintiff's allegations that the defendant raised co-payments in violation of the 1997-2003 agreement, Ruotolo attests as follows: "Prior to 2006 (i.e., with regard to previous CBAs), the defendant consistently and previously determined that changes in insurance benefits and plans for active employees should likewise apply to retirees. The exact, specific benefits and/or conditions that may be set forth or offered under a CBA to retirees are not meant to last a lifetime for said retirees. The defendant has not and cannot guarantee to the plaintiff that he would receive the same exact insurance benefits (and pay the same exact co-payments) for the rest of his lifetime, especially since the benefits are provided by a third party (the insurance company)." (Ruotolo affidavit, p. 7). She also attests: "As with all bargaining units, the increases in co-pays and deductibles for employees and retirees are the result of significant increases in costs to the defendant in insurance premiums, and efforts through the collective bargaining process to attempt to share a small portion of such increases with the recipients of the benefits." (Ruotolo affidavit, p. 7-8).
The defendant has also submitted the affidavit of Robert Lindberg, who attests to being "a Managing Principal with Lindberg Ripple, Inc. of Windsor, Connecticut, which is, among other things, one of Connecticut's larger independent benefit consultants." (Lindberg affidavit, p. 1). He attests that his firm has provided employee benefits consulting services to the defendant and that "[o]ne of the groups with whom we have assisted the defendant with regard to plan selection (and negotiations) is Local 1042 . . ." (Lindberg affidavit, p. 2). Lindberg further attests that "[t]he decision to implement the increased prescription drug co-pays was motivated by a desire to keep pace with the defendant's rising insurance costs" and that "[t]he change from the two-tier $3 generic/$6 brand, to the three-tier $5 generic/$15 preferred brand/$25 non-preferred brand and $10/$30/$50 for three-month mail order supply still gave active employees a very generous prescription drug plan benefit in light of the defendant's increased costs." (Lindberg affidavit, p. 4-5).
Conversely, the plaintiff attests that the defendant "never took the position in negotiations prior to the [1997-2003 agreement] that the language provision of the collective bargaining which states that `The Board of Education agrees to maintain upon retirement the existing medical insurance program for the benefit of the employees and their immediate families at no cost to the employees,' that its obligation to provide employees who retired during the term of the collective bargaining agreement the existing medical insurance program would expire on the termination date of the collective bargaining agreement." (P's affidavit, ¶ 23). He further attests that "[i]t was the clear intent of the [defendant] and . . . Local 1042 . . . that the [defendant's] obligation to maintain the existing medical insurance program for each employee who retired between July 1, 1997 and June 30, 2003 would continue for the entire duration of their retirement." (P's affidavit, ¶ 24). The plaintiff also attests that another part of the 1997-2003 agreement, Article XXI, provides that "[t]he terms and conditions of the existing pension plan for employees . . . [are] incorporated herein by reference and [remain] in effect for the life of this Agreement." (Exh. A, p. 19). The plaintiff notes that similar language is not found in the parts of the 1997-2003 agreement pertaining to insurance; (P's affidavit, ¶ 28); implying that the parties intended for the insurance benefits to survive the expiration of the agreement.
On a motion for summary judgment, "[t]he court . . . may consider not only the facts presented by the parties' affidavits and exhibits, but also the inferences which could be reasonably and logically drawn from them . . ." (Internal quotation marks omitted.) Delano v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 07 5006489 (July 14, 2009, Tobin, J.).
Thus, these affidavits reveal that the parties had disparate understandings of the provisions of the 1997-2003 agreement. The affidavits fail to resolve the ambiguity of the phrases "existing" and "present existing" as used in that agreement. Lindberg's affidavit and its attached exhibits explain the reasons why the retirees' co-payments increased but do not aid in the determination of whether such increases were allowed by the agreement. "Ordinarily, the intent of the parties to a contract is a question of fact to be determined by the trier of fact." Jacob v. Seaboard, Inc., 28 Conn.App. 270, 273 (1992). Accordingly, there exists a genuine issue of material fact as to what the defendant and Local 1042 agreed to in the 1997-2003 agreement.
The defendant further argues in its brief that even if the 1997-2003 agreement created a right to healthcare benefits for the life of the retirees, the defendant is entitled to summary judgment because "the increase of drug co-payments leaves the insurance benefit in general largely intact," meaning that there is no actionable breach under the doctrine established in Poole v. Waterbury, 266 Conn. 68 (2003). In response, the plaintiff argues that summary judgment is inappropriate under Poole because the increases in co-payments are substantial.
In Poole, the Waterbury firefighters' union and the city of Waterbury negotiated a collective bargaining agreement that stated "that the city `shall continue in full force and effect the benefits for each retiree and each employee who retires or dies after July 1, 1986, his spouse, and each eligible dependent of such retiree or employee . . . '" Poole v. Waterbury, supra, 266 Conn. 73-74. In 2001, an arbitrator issued an award that effectively changed the medical benefits plan for retirees from a "traditional indemnity plan provided under previous agreements" to a "managed care plan with a preferred provider organization," with the new plan requiring "a small co-payment for office and home visits" that the old plan did not require. Id., 76. On appeal from the trial court's decision finding a breach of contract, the Connecticut Supreme Court indicated that it had to answer one or two questions: "whether the plaintiffs' right to benefits survived the termination of the collective bargaining agreements and thereby vested," and, if the answer was yes, "whether that vested right encompasses the specific benefit plan prescribed in the agreements, thereby precluding the defendants from changing the plaintiffs' coverage to the new managed care plan." Id., 80. After ruling that there was no legal presumption for or against vesting, Id., 87, the court engaged in contract interpretation and determined that there was ambiguity as to whether the medical benefits vested in the agreement. Id., 96. The court answered the first question in the affirmative, concluding that "in light of the contract ambiguities and the extrinsic evidence, the trial court's conclusion that the plaintiffs have a vested right to medical benefits that survived the expiration of the collective bargaining agreements was not clearly erroneous." Id., 98-99.
In considering the second question, pertaining to the scope of the vested benefits, the Court adopted the approach of the Court of Appeals for the Seventh Circuit's decision in Diehl v. Twin Disc, Inc., 102 F.3d 301 (7th Cir. 1996). Poole v. Waterbury, supra, 266 Conn. 103-105. The Connecticut Supreme Court ruled as follows: "in order for the plaintiffs to prevail, they must demonstrate that the changes to their benefits are not substantially commensurate with the benefits provided under the agreements in effect at the time of the retirees' retirement, when viewing the group of plaintiffs as a whole." Id., 105. In other words, a breach of the collective bargaining agreement exists if the changes "resulted in a new plan that either substantially reduced the provision of services or substantially increased the cost to the group of plaintiffs as a whole." Id., 107. The Court also quoted language from the Seventh Circuit in order to illustrate how one can determine whether subsequent benefits are "substantially commensurate" with those that preceded them: "`We caution that it will not suffice for the plaintiffs to demonstrate that the changes have increased payments for some retired employees. The changes should be examined for their effect on the class of retirees as a whole, to determine if they have significantly reduced their general level of benefits. In addition, individual modifications should not be scrutinized in isolation. In other words, the changes must be examined in their totality for their effect upon the class of retirees as a group."' Id., 104-105 (quoting Diehl v. Twin Disc, Inc., supra, 102 F.3d 311).
The Connecticut Supreme Court then examined three areas of change identified by the trial court in Poole. Id., 105-106. In the first area of change, the successor plan required "the plaintiffs . . . to submit a co-payment for each health service utilized — ranging in amount from $5 to $15 per visit," whereas under the predecessor plan, "the plaintiffs faced the possibility of incurring some financial costs — they were reimbursed for medically necessary services, up to a certain combined cap, after which they might be obligated to contribute a `deductible' amount." Id. In the other two areas of change, there existed a possibility that the successor plan would no longer cover some providers or services that were covered by the predecessor plan. Id., 106. Despite these findings by the trial court, the Supreme Court ruled that the subsequent benefits were substantially commensurate with the predecessor benefits, holding that "the modifications made by the defendants affected the form, and not materially the substance, of the vested benefit." Id., 107.
In their briefs, the parties both cite and discuss Poole and essentially disagree on whether the higher co-payments in the present case are substantially commensurate with the co-payments in effect during the 1997-2003 agreement. Arguing that the insurance industry is a constantly evolving market and that the defendant faces rising costs in providing benefits, the defendant argues that "raising the co-payments for prescription drugs from $3 for generic drugs and $6 for brand name drugs to $5 for generic drugs, $15 for preferred brand name drugs, and $25 for non-preferred brand name drugs cannot be viewed to be an actionable breach" and that "the benefit even as altered cannot be called nominal, especially in the context of today's world." Furthermore, Lindberg, in his affidavit, attests: "It is my professional opinion that the benefits provided under the 2003-2008 [agreement] were `substantially commensurate' with the benefits provided during the effective period of the 1997-2003 [agreement], when viewed as a whole and in light of the dramatic rise in health care costs, specifically the rise in the cost of prescription drugs." (Lindberg affidavit, p. 6).
In response, the plaintiff argues that increases in healthcare costs do not factor into the Poole test for what constitutes substantially commensurate benefits. The plaintiff further argues that an increase in the generic prescription drug co-payment from $3 to $5 is substantial because it is nearly a twofold price hike and that "[t]he co-pay increase for brand name drugs is even more glaring, going from $6.00 to $15.00 in some cases and $25.00 in other cases." The plaintiff also distinguishes the present case from Poole, arguing that the defendant's right to modify the insurance coverage is implicitly proscribed by a provision of the 1997-2003 agreement.
In support of this proposition, the plaintiff cites Article VI, paragraph 5(A) of the 1997-2003 agreement, which provides that "The Board of Education reserves the right to change insurance carriers (including insurance administrators) at any time but not more than once during the term of the contract . . . so long as the insurance coverage under the substitute insurance carrier's policy is by a clear preponderance of the evidence substantially equal or better insurance coverage than the current insurance carrier's policy." (D's Exh. A, p. 7). The plaintiff argues that this is the only permitted modification.
Thus, the parties disagree as to whether the modified co-payment is substantially commensurate with what the plaintiff paid before retirement. The increase in the amount of the co-payment is significant percentage-wise, yet the absolute size of the successor co-payment might still be considered relatively low in light of prescription drug inflation. (Lindberg affidavit, p. 4-5). Unfortunately, there have been no Connecticut cases applying Poole that have explained what factors may be considered in applying the "substantially commensurate" standard. Poole makes it clear that in collective bargaining agreements with contractual language similar to that used in the present case, the retirees do not have a vested right to the exact benefits they enjoyed while working, Poole v. Waterbury, supra, 266 Conn. 104, yet the amount of leeway granted to employers to adjust benefits is less clear. While ostensibly made in good faith, Lindberg's attestation that the higher co-payments in this case are "substantially commensurate" with what the plaintiff used to pay is nothing more than a legal conclusion, especially since his affidavit neither mentions Poole nor manifests an understanding of that decision. The court finds that the defendant has failed to demonstrate that there is no genuine issue of material fact. Consequently, the defendant's motion for summary judgment must be and it is, hereby, denied.