14-4507-cv
Gianetti v. New England Life Ins. Co.


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of February, two thousand sixteen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges.
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CHARLES D. GIANETTI
                 Plaintiff-Counter-Defendant-Appellant,

                             v.                                           No. 14-4507-cv

NEW ENGLAND LIFE INSURANCE CO.,
                 Defendant-Counter-Claimant-Appellee.
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APPEARING FOR APPELLANT:                             MICHAEL T. KOGUT, O’Connell Plumb &
                                                     Mackinnon, P.C., Springfield, Massachusetts.

APPEARING FOR APPELLEES:                             JOHN A. HOULIHAN (Aubrey E. Blatchley,
                                                     on the brief), Locke Lord LLP, Boston,
                                                     Massachusetts.

         Appeal from a judgment of the United States District Court for the District of

Connecticut (Alfred V. Covello, Judge).

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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 13, 2014, is AFFIRMED.

       Plaintiff-counter-defendant Charles Gianetti appeals from the judgment entered

after a bench trial in favor of defendant-counter-claimant New England Life Insurance

Company (“NELICO”) on Gianetti’s claims for breach of contract and violations of the

Connecticut Unfair Trade Practices Act (“CUTPA”), see Conn. Gen. Stat. §§ 42-110a to

42-110q. Gianetti argues that NELICO’s 2000 modification of his life insurance policy to

reflect more accurately the parties’ 1999 settlement of an earlier action arising out of a

NELICO agent’s fraud constituted a breach of contract, and that subsequent statements of

policy value and premium constituted misrepresentations under CUTPA.                  He also

challenges the district court’s exclusion of a witness’s testimony. We review a district

court’s evidentiary rulings for abuse of discretion, see Keepers, Inc. v. City of Milford, 807

F.3d 24, 34 (2d Cir. 2015); its findings of fact for clear error; and its conclusions of law de

novo, see Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38–39 (2d Cir. 2009). In

conducting this review, we assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, which we reference only as

necessary to explain our decision to affirm substantially for the reasons stated by the

district court.

1.     Breach of Contract

       Gianetti does not contest that NELICO’s initial funding of his life insurance policy


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overcompensated him relative to the parties’ settlement agreement. Instead, he argues

that he is entitled to enforcement of the policy as a contract distinct from the agreement,

which contract was modified without his consent. He is mistaken. As the district court

correctly concluded, the policy is not a standalone contract but, rather, a portion of the

settlement agreement, to which it was attached as Exhibit B. That agreement manifests a

clear meeting of the parties’ minds that NELICO would pay Gianetti $1.2 million and fund

an insurance policy for him with a 1999 cash value of $585,000. In short, the parties’

initial failure to translate the settlement agreement to a correct premium amount is properly

deemed a mutual mistake, which NELICO was entitled to reform and enforce consistent

with the parties’ intent as expressed in the settlement agreement. See Lopinto v. Haines,

185 Conn. 527, 532, 441 A.2d 151, 155 (1981) (“The remedy of reformation is appropriate

in cases of mutual mistake—that is where, in reducing to writing an agreement made or

transaction entered into as intended by the parties thereto, through mistake, common to

both parties, the written instrument fails to express the real agreement or transaction.”

(internal quotation marks omitted)). Accordingly, the district court correctly found that

that NELICO did not breach the contract as properly interpreted.

       Even if NELICO had breached the contract, however, that breach would have

occurred in 2000, eight years before Gianetti filed the instant complaint, and, thus, his

contract claim is barred by Connecticut’s six-year statute of limitations. See Conn. Gen.

Stat. § 52-576(a). We identify no error in the district court’s finding that Gianetti knew of


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NELICO’s purported breach in 2000 and, thus, could not demonstrate either fraudulent

concealment or continuing conduct sufficient to toll the statute of limitations.1

2.     Connecticut Unfair Trade Practices Act

       A plaintiff suing under CUTPA must demonstrate “(1) that the defendant made a

misrepresentation of fact (2) that the defendant knew or should have known was false, and

(3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary

harm as a result.” Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 626, 910 A.2d 209,

213 (2006). Because we identify no error in the district court’s finding that Gianetti failed

to demonstrate the requisite reliance and pecuniary harm, we affirm the judgment in favor

of NELICO on this claim.

3.     Exclusion of Testimony

       The district court acted well within its discretion in excluding testimony of

accountant Elmer Laydon because his disclosure as an expert witness was untimely. See

Fed. R. Civ. P. 26(a)(2). No different conclusion is warranted by Gianetti’s belated

attempt to recharacterize Laydon as a fact witness because Laydon lacked the “first-hand

knowledge or observation” critical to lay opinion testimony under Fed. R. Evid. 701.

United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992); accord United States v. Garcia,

413 F.3d 201, 212–13 (2d Cir. 2005). In any event, the district court did not abuse its
1
  To the extent Gianetti argues for the first time on appeal that NELICO restarted the
statute of limitations in 2006 by sending an erroneous policy statement, that argument is
forfeited. See Katel Liab. Co. v. AT&T Corp., 607 F.3d 60, 68 (2d Cir. 2010) (“An
argument raised for the first time on appeal is typically forfeited”).

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discretion in finding that Laydon’s proposed opinion testimony as to the value of a

$297,750 investment made in 1987 was irrelevant given that the 1987 policy was

terminated as part of the settlement in 1999, and Gianetti entered into the new policy in

1999.

4.      Conclusion

        We have considered all of Gianetti’s remaining arguments and conclude that they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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