Opinion
No. CV09 502 19 92
November 25, 2009
MEMORANDUM OF DECISION RE OFFERS OF COMPROMISE(#112 #113) OBJECTIONS TO OFFER OF COMPROMISE (#115 #116)
The issue before the court is whether there exists any prohibition against an offer of compromise made by the plaintiff and directed to a defendant when that defendant may only be held liable in a tort action by way of vicarious liability.
Practice Book § 17-14, entitled "Offer of Compromise by Plaintiff; How Made" provides in relevant part: "After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon defendant in such action but not later than thirty days before the commencement of jury selection in a jury trial or the commencement of evidence in a court trial, file with the clerk of the court a written offer of compromise . . ." The offer of compromise replaced the offer of judgment in amendments made in § 4 of No. 05-275 of the 2005 Public Acts. In general, where there are multiple defendants in an action, "[t]he policy of encouraging settlements counsels against piecemeal offers of judgment." Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 746, 687 A.2d 506 (1997). Nevertheless, "there are situations in which the settlement process will be enhanced by the plaintiffs making separate offers of judgment in a multiple defendant case." Id., 747.
This appears to be an issue of first impression as Connecticut case law reveals no decisions of any Connecticut court directly addressing the specific issue of offers to vicariously liable defendants, but there is evidence that such an offer of compromise is not prohibited. In Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 708, there is a strong indication that such an offer, even standing alone and directed toward a single vicariously liable defendant, is permissible, though not always advisable. In discussing the legality of making multiple offers of judgment simultaneously, the court noted that "[t]here are many instances in which it would be imprudent for a plaintiff to file individual offers of judgment to multiple defendants because partial settlement may inadvertently extinguish rights against nonsettling defendants by operation of law . . . A plaintiff, as a practical matter, would not file separate offers of judgment in cases involving vicarious liability based on respondeat superior, automobile owner/operator negligence, or statutory indemnification claims unless each of those offers of judgment were for the full value of the case." (Citation omitted.) Id., 746. In this matter, both offers of compromise are in the amount of $20,000.
Additionally, in Torres v. Alfano, Superior Court, judicial district of New London, Docket No. 550511 (November 29, 2000, Corradino, J.) ( 28 Conn. L. Rptr. 465), the court permitted a plaintiff to accept an offer of judgment made by a defendant who was only vicariously liable for the conduct of another defendant. While the validity of the making of the offer was not at issue in that case, it was apparently not in dispute that the making and acceptance of such an offer of compromise was not barred by the Practice Book, the General Statutes, or by any existing legal precedent. Although the offer in Torres was made by the vicariously liable defendant, rather than by the plaintiff, nothing suggests that the rule should differ as to a plaintiff making an offer of compromise to a vicariously liable defendant, who is at liberty to decline the offer, as compared to the vicariously liable defendant who makes an offer of his own volition.
Rather, the primary issue in Torres v. Alfano, supra, 28 Conn. L. Rptr. 465, was whether the acceptance of the offer of judgment by the plaintiff against the vicariously liable defendant discharged the other defendant.
The Courts, while not ruling directly on the issue, have taken note as to the consequences that could arise when a vicariously liable defendant alone is made an offer of compromise, further indicating that such offers are permissible: "Although a change in the offer of judgment statute requiring unified offers of judgment in cases involving vicarious liability, respondeat superior, or automobile owner/operator negligence where permissive use is admitted might be a welcome alteration, any change should come from the General Assembly, or a reexamination of Blakeslee [ Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 708]." Cocozza v. Wickes, Inc., Superior Court, judicial district of Danbury, Docket No. 334642 (June 14, 1999, Radcliffe, J.) ( 24 Conn. L. Rptr. 672, 673-74).
Based on the forgoing, there appears to be no reason to prevent a plaintiff from making an offer of compromise in a tort action, to a defendant who is only subject to vicarious liability.
Therefore, Objections to Offer of Compromise #115 and #116 are overruled.