Opinion
No. HHB CV 04 4000416 S
May 4, 2006
MEMORANDUM OF DECISION ON POST-VERDICT MOTIONS
This personal injury action was tried to a jury in February 2006. The matter is now before the court concerning the defendant Elizabeth Merriman's post-trial motions, including a motion to set aside the verdict (#131), a motion for remittitur (#129), a motion for collateral source reduction (#130); and the plaintiff, William J. Furlong, III's motion for interest re offer of judgment and attorneys fees (#133). On March 27, 2006, the court heard oral argument and received evidence in connection with the motions. Thereafter, the parties, pursuant to a schedule, submitted supplemental material, concerning recent case law. The final submission, by the plaintiff, was presented by facsimile on March 30, 2006.
I Background
This personal injury action was filed on July 23, 2004. On February 16, 2006, after five days of trial, the jury rendered a verdict (#128.25) in favor of the plaintiff. The jury awarded $28,315.28 in economic damages and $210,000.00 in non-economic damages, for a total of $238,315.28, to be reduced in accordance with its finding as to the plaintiff's comparative negligence. The plaintiff's claims stemmed from a motor vehicle accident which occurred in Middletown, Connecticut on July 13, 2003. The plaintiff claimed that the accident caused him to suffer personal injuries and other damages. Additional facts are discussed below.
II Motion To Set Aside The Verdict
"In considering a motion to set aside the verdict, the [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Card v. State, 57 Conn.App. 134, 138, 747 A.2d 32 (2000).
"A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion. The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict." (Internal quotation marks omitted.) Phelps v. Lankes, 74 Conn.App. 597, 600, 813 A.2d 100 (2003).
"[T]he constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 128, 851 A.2d 1142 (2004). "[T]he conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached . . . [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." (Citations omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).
The defendant contends that the verdict for the plaintiff should be set aside since the jury's finding of 10% comparative negligence on the plaintiff's part was contrary to the undisputed evidence and the court's instruction to the jury on the defendant's special defense concerning a violation of General Statute § 14-218a. According to the defendant, either the jury did not understand the court's instruction on comparative negligence or it was overly influenced by sympathy for the plaintiff's injuries. She argues that the jury's finding that the plaintiff was only 10% responsible for the accident is illogical, unreasonable, and the result of mistake.
In this matter, the jury reasonably could have found that the plaintiff was proceeding on his motorcycle down Route 66 in Middletown, Connecticut on a clear July 2003 day, when the defendant's vehicle pulled out from a private parking lot in front of him in order to make a right turn. The plaintiff was unable to bring his vehicle to a stop, and it went into a skid. The plaintiff was thrown off his vehicle, and sustained injuries, as discussed below.
The defendant argues that the plaintiff and a witness, Davis Lineberry, who also was on a motorcycle, admitted that they were traveling approximately 45 miles per hour, which was ten miles over the posted speed limit. The plaintiff admitted to consuming some beer prior to the accident. The defendant asserts that the plaintiff admitted that he could not bring his vehicle to a controlled stop, although Lineberry and other motorcyclists, who were traveling directly behind the plaintiff, were able to do so. Also, the defendant cites evidence showing that the plaintiff's motorcycle skidded and slid along the pavement until it struck the rear of the defendant's vehicle, causing substantial damage. Finally, the defendant notes that she presented testimony from a professional engineer who estimated that the plaintiff's speed ranged from 52 to 85 miles per hour.
There was evidence before the jury from which it could have concluded that the plaintiff's and the accompanying motorcycles were very loud and that they had bright headlamps which were on as they came down Route 66. The defendant testified that there were several people in her vehicle, including herself, her friend, and children; that her windows were closed; her air conditioner was on; and music was playing in her vehicle. She stated that her view in the direction from which the plaintiff was traveling was clear and the sun was not in her eyes. The defendant testified that when she pulled out, she did not see the plaintiff.
Our Supreme Court has explained the meaning and effect of General Statute § 14-218a. "This statute, which authorizes the state traffic commission and the traffic authority of any municipality to establish and post speed limits for state and local highways and roads, goes on to provide: `Any speed in excess of such limits . . . shall be prima facie evidence that such speed is not reasonable . . .' Rapuano v. Oder, 181 Conn. 515, 519, 436 A.2d 21 (1980). "Section 14-218a does not create an irrebuttable presumption that speed in excess of the speed limit is unreasonable; nor does it create a rebuttable presumption on that issue that would shift the burden of proof to the opposing party . . . The statute provides only that speed in excess of the speed limit is prima facie evidence that such speed is unreasonable . . . The phrase `prima facie evidence' means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. The effect of the statute is only to relieve the party who relies upon it from producing further evidence tending to prove that his opponent's speed was unreasonable." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 519-20. The Supreme Court then added, "[o]f course, the party relying upon the statute would be relieved of producing further evidence of his opponent's negligence only where the opponent's excessive speed was the proximate cause of the collision." Id., 520, n. 6.
Under Connecticut law, "[t]he credibility of [the parties] and the other witnesses . . . was a question solely for the jury." State v. Arceniega, 73 Conn.App. 288, 294, 807 A.2d 1028 (2002), on appeal after remand, 84 Conn.App. 326, 853 A.2d 586, cert. denied, 271 Conn. 926, 859 A.2d 581 (2004). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted and citation omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
Similarly, while the plaintiff acknowledged that he drank some beer prior to the accident, the jury, as the trier of fact, was not required to infer that he was intoxicated at the time of the accident. See Craig v. Dunleavy, 154 Conn. 100, 104-05, 221 A.2d 855 (1966) (trier of fact not required to infer that individuals were intoxicated). Nothing in the police report's narrative concerning the accident reflects his consumption of alcohol. See Plaintiff's Exhibit 1.
Likewise, the jury was not required to credit the testimony of the defendant's expert witness. "It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert." (Internal quotation marks omitted.) Sprague v. Lindon Tree Service, Inc., 80 Conn.App. 670, 677, 836 A.2d 1268 (2003). As set forth in the decisional authority cited above, under Connecticut law the trial court may not substitute its assessment of credibility for that of the jury.
Here, the jury reasonably could have found that the defendant's negligence far exceeded that of the plaintiff, in that she pulled out without exercising reasonable care to lookout for oncoming traffic in the direction from which the plaintiff was traveling toward the driveway from which she exited onto Route 66. The jury reasonably could have found that it was her emergence onto the road without reasonably looking out for oncoming traffic which was the major cause of the accident. The jury reasonably could have found that, under the circumstances, she should have been aware of the plaintiff's approach and should have let him go by before pulling out onto the road. Its assessment that she was 90% responsible was within the jury's province to determine.
Contrary to the defendant's assertions, "the verdict returned by the jury admits of no confusion, the quality of which would warrant reversal." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 796, 734 A.2d 112 (1999). Also, "the manner the jury form . . . [was] completed does not reflect any confusion on the jury's part." Bolmer v. McKulsky, 74 Conn.App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003). Likewise, in view of the evidence, there is no reason to conclude that the jury's verdict was mistaken or influenced by sympathy. The motion to set aside the verdict is denied.
III Motion For Remittitur
As noted, the jury awarded economic damages of $28,315.28 and non-economic damages of $210,000.00. The defendant contends that the non-economic damages award is excessive and not supported by the evidence.
The defendant argues that the plaintiff was able to return to work in November 2003, and there was no claim for impairment of earning capacity or future medical treatment. She also asserts that he was able to return to weightlifting and motorcycle riding. See Plaintiff's Exhibit 41 (discharge summary from physical therapy). She cites his last medical report in August 2004, and argues that he was having only slight pain with activities. She notes also that he offered no testimony from a medical doctor that his injuries would have a profound effect on his life or health. While there was medical evidence that the plaintiff has been assigned a 12% permanent impairment rating concerning his right arm, she argues that there was no indication as to how this would affect the plaintiff. See Plaintiff's Exhibit 39 (reports of Dr. Bruce H. Moeckel).
In considering a motion for remittitur, the court may not simply substitute its view of the evidence for that of the jury. The "right to have factual issues resolved by the jury . . . embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . The size of the verdict alone does not determine whether it is excessive." (Internal quotation marks and citations omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999). "A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 187.
"When ruling on [a] motion for a remittitur, the trial court [is] required to view the evidence in the light most favorable to sustaining the jury's verdict." Berry v. Loiseau, 223 Conn. 786, 810, 614 A.2d 414 (1992).
The court has reviewed the evidence which was presented to the jury. The plaintiff presented evidence of lost wages for the period in which he was unable to work following the accident. This amounted to 18 weeks. See Plaintiff's Exhibit 45.
The plaintiff's most significant injury was a displaced ulnar fracture of his right arm. See Plaintiff's Exhibit 37, which includes records of his treatment at Middlesex Hospital following the accident. The emergency department record states that a piece of bone was protruding through the plaintiff's skin. His right elbow showed "significant angulation and displacement." See Plaintiff's Exhibit 37, emergency department record, p. 2. The radiology report within the same exhibit describes a "comminuted fracture involving the proximal aspect of the ulna associated with dislocation of the radial head. There is a large joint effusion and soft tissue swelling." See Plaintiff's Exhibit 37 (radiology report). Dr. Bruce H. Moeckel performed surgery on the plaintiff's right arm. His operative report states, "there was medial comminution which prohibited complete anatomical reduction. Pieces were too small. They were left in place with soft tissue detachment for in situ bone graft." A metal plate, with six screws holding it in place, was inserted and secured to the ulna border. See Plaintiff's Exhibit 37 (operative report). His right arm was placed in a cast.
The plaintiff also suffered extensive abrasions or road burns on his left arm, which was wrapped to assist in healing, and he had abrasions on other parts of his body. The jury viewed photographs of various stages of his recovery. Initially, he was unable to bathe or feed himself due to the injuries to his arms.
Dr. Moekel's report of March 30, 2004 stated that the plaintiff "has slight pain with lifting and slight pain with activities." See Plaintiff's Exhibit 39. His report of August 30, 2004 states the plaintiff "continues to suffer from sensitivity and pain around the hardware of his right forearm." See Plaintiff's Exhibit 39.
In addition, the plaintiff described the incident, its aftermath, and its effect on him. According to his testimony, he had difficulty sleeping and occasionally still has nightmares concerning the accident. He testified that he has difficulty using tools at work in the way he was able to prior to the accident. Periodically, he suffers discomfort and pain in his arm. He also has scarring. He can no longer lift weights to the same extent as he could previous to the accident. He stated that his right arm is a lot weaker than it was before the accident.
The trial occurred about two and one-half years after the incident. The jury was presented with evidence that the plaintiff had, at the time of the trial, a life expectancy of 48 years.
It was the jury's province to assess the witnesses' testimony, including their demeanor on the witness stand. See Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983); Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). The plaintiff's testimony afforded to the jury an opportunity for the jury to measure the emotional effect on him of the incident and resulting injuries. In reviewing the evidence post-verdict it is not this court's function to "sit as the seventh juror . . ." (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 692, 768 A.2d 441 (2001).
"Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries as long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount . . . An award of damages for pain and suffering is peculiarly within the province of the trier of fact and the fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery for that element of damages . . . Not only are damages for pain and suffering peculiarly for the trier of fact, but proper compensation for pain and suffering cannot be computed by a mathematical formula, and there is no ironclad rule for the assessment of damages . . . The award of damages for pain and suffering will be sustained, even though generous, if it does not shock the sense of justice." (Internal quotation marks and citations omitted.) Vickers v. Jessup, 32 Conn.App. 360, 372-73, 629 A.2d 457, cert. granted on other grounds, 227 Conn. 992, 632 A.2d 701 (1993) (appeal withdrawn 1994).
The jury was entitled to credit the plaintiff's testimony and the medical evidence. The jury reasonably could have found that the metal plate and screws will remain in the plaintiff's right arm for the rest of his life. The jury also reasonably could have found that he has suffered a permanent, partial impairment to his right arm, which he will have to live with for the balance of his life. In addition, the jury reasonably could have found that, although his recovery has been good, he will not be able to engage in the same active lifestyle which he previously enjoyed and that, periodically, he continues to experience pain in his arm. With the two and a half years which elapsed between the incident and the trial, and his 48-year life expectancy, the jury reasonably could have found that the period during which he will have to endure this injury's effects will amount to approximately fifty years. There was substantial evidence in the record of pain and suffering, and of a permanent, partial impairment.
Based on the evidence in the record, the jury's award of non-economic damages does not "shock . . . the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." Wichers v. Hatch, supra, 252 Conn. 187. The evidence provided a sufficient basis for estimating the non-economic damages. See Opotznzer v. Bass, 63 Conn.App. 555, 562, 777 A.2d 718 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002). The non-economic damages award is not excessive and it is not contrary to the evidence. Accordingly, the defendant's motion for remittitur is denied.
IV Motion For Collateral Source Reduction
General Statutes § 52-225a(b) states that "[u]pon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment." General Statutes § 52-225a(a) provides that the court shall reduce the amount of an economic damages award "by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section . . ." Subsection (c) states, "[t]he court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death."
Section 52-225b states that "`Collateral sources' means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. `Collateral sources' do not include amounts received by a claimant as a settlement."
At the hearing on March 27, 2006, the court received evidence concerning collateral source payments. While, as discussed below, the plaintiff contends that no collateral source reduction to the jury's verdict is warranted, he stated that, if the court determines that the defendant is entitled to such a reduction, it should be in the amount of an agreed sum of $3,104.43. The defendant argues that, in addition to that agreed sum, she is entitled to a further reduction in the amount of $6,063.15, for a total reduction of $9,167.58.
The defendant's argument for an additional reduction of $6,063.15 coincides with the amount reflected on Defendant's Exhibit A, presented at the March 27, 2006 hearing, a copy of a bill from Middlesex Hospital, dated March 19, 2004, which subtracted this sum from the amount due from the plaintiff, based on a July 22, 2003 entry for "Cigna Hlth HMO Allow," which clearly means "allowance."
The plaintiff presents two arguments. First, the plaintiff contends that, since the defendant presented no jury interrogatories, the defendant is unable to prove what elements of economic loss the jury found and included in its verdict; accordingly, no collateral source reduction is authorized. Second, the plaintiff asserts that, if the court concludes that the defendant has proved what elements of economic loss the jury included in its verdict, the amounts actually paid by collateral sources should not include the Cigna allowance reduction since it does not reflect a payment.
Our Supreme Court recently has addressed the meaning and practical application of § 52-225a, in Jones v. Kramer, 267 Conn. 336, 838 A.2d 170 (2004) ( Jones) and in Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 848 A.2d 373 (2004) ( Pikulski). In Jones, our Supreme Court noted that, as part of tort reform, § 52-225a was extended to "prevent plaintiffs from obtaining double recoveries, i.e. collecting economic damages from a defendant and also receiving collateral source payments." (Internal quotation marks omitted.) Jones, 267 Conn. 346. "Succinctly put, § 52-225a provides that the trial court shall reduce an award for economic damages by an amount equal to the total amount of collateral sources that have been paid for the benefit of the claimant, less any premium paid by or on behalf of the claimant to secure the benefit of such collateral source payments." Id., 345. The court stated that § 52-225a "must be construed to allow only payments specifically corresponding with items of damages included in the jury's verdict to be deducted as collateral sources from the economic damages award." Id., 348. The Supreme Court also addressed the procedure by which a trial court "may ascertain which items of damages are subject to a collateral source reduction, and which items are not . . . [T]o apply a collateral source reduction pursuant to § 52-225a, in a manner that is faithful to the purposes of tort reform, the trial court must know the specific types of damages that were awarded by the jury . . . [T]he defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit. Specifically, the defendant who is seeking a collateral source reduction must, at the conclusion of the evidence, submit interrogatories to the jury concerning the specific items of damages included within the verdict." (Footnote omitted.) Id., 349-50.
The requirement that the defendant submit interrogatories to the jury where such collateral source reductions are sought was reiterated in Pikulski, in which the court specifically declined the defendant's invitation to overrule Jones. See Pikulski, 269 Conn. 7 n. 4 (interrogatory requirement not deemed to be "particularly unwieldy," quoting Jones, 267 Conn. 350-51 n. 7). Instead, the court stated, "[w]e take this opportunity . . . to set forth the procedure by which trial courts should make this determination in the future. We reiterate that the burden is on the defendant, as the party seeking a collateral source reduction, to submit interrogatories to the jury concerning the specific items of damages included within the verdict. Once the defendant, though those interrogatories, proves that the verdict includes items of damages for which the plaintiff has received a collateral source benefit, in order to get the full offset pursuant to § 52-225a(c), the plaintiff has the obligation to itemize the insurance premiums to demonstrate the correlation between the medical costs awarded and the years in which the premiums were paid." Pikulski, 269 Conn. 9.
Here, no contention was made as to the amount which the plaintiff paid for insurance premiums, so the court has not applied that aspect of the statutory scheme.
At trial here, the defendant did not submit any interrogatories for the jury's consideration concerning the specific items of damages included within the verdict. The plaintiff's verdict form provided for economic and noneconomic damages, but did not include a breakdown of the particular components of the economic damages award.
The defendant asserts that, notwithstanding the fact that she did not submit such interrogatories to the jury, the jury's award of economic damages clearly consists of the plaintiff's full claimed medical expenses, as reflected on his medical expense summary exhibits, plus the exact sum for he claimed for lost wages, as reflected on Plaintiff's Exhibit 45. She argues that she did not dispute any portion of the economic damages claim made by the plaintiff and that the jury awarded the exact sum claimed, to the penny. See defendant's motion for collateral source reduction, p. 1.
The plaintiff submitted summaries of his medical expenses, with totals, for each of his six providers, as reflected on Plaintiffs' Exhibits 36, 38, 40, 42, 43, and 44.
In a similar situation, the court in Saraceno v. Hartford Insurance Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 01 0811755 S (November 24, 2004, Beach, J.) ( 38 Conn. L. Rptr. 325), stated, "[t]he issue presented is whether collateral source reductions are allowed if interrogatories have not been submitted to the jury, but it nonetheless is clear what items have been included in the jury's compilation of economic damages. In the narrow circumstances of this case, I find that the jury's figure of economic damages specifically includes all of the bills included in the plaintiff's summary of medical bills and nothing in addition. Given the exact nature of the numbers, any other interpretation, though perhaps theoretically possible, would be simply bizarre."
Here, the plaintiff does not dispute that the jury awarded him, to the penny, the exact amount he sought for economic damages. Thus, the facts here contrast with those at issue in Guay v. Darden, Superior Court, judicial district of Hartford, Docket No. CV 03 0824755 S (September 7, 2004, Shapiro, J.) ( 37 Conn. L. Rptr. 837), where the court declined to find that the jury's award of past economic damages coincided with the plaintiff's medical expenses claims. There, the jury did not include the exact amounts claimed and, in contrast to the record here, the amount claimed for lost wages was not presented in specific terms. See id. Also, there, the defendant claimed that the amount awarded for medical expenses had been rounded down by the jury, by eliminating 26 cents. See id. The court stated, "[i]n the absence of interrogatories concerning this award, the defendant engages in speculation about what the jury did." Id.
Here, in the narrow circumstances of this case, it is clear what the jury awarded concerning the plaintiff's claimed medical expenses. These circumstances contrast to those in Jones and Pikulski, where the courts were presented with "ambiguous" verdicts which created mathematical problems. The record in CT Page 8515 Jones, unlike the facts here, did not make it clear what had been awarded for medical expenses and what had been awarded for lost wages. See Jones, 267 Conn. 349. The facts here contrast with those in Pikulski, where was no evidence presented as to lost wages or lost earning capacity; there, the economic damages award related solely to the plaintiff's medical bills. See Pikulski, 269 Conn. 8 n. 6. However, unlike Pikulski, although the verdict here also does not "delineate the amount awarded for each specific item of damages," (footnote omitted) id., 269 Conn. 8, it is quite clear that the jury awarded each medical expense claimed by the plaintiff.
This finding is consistent with our Supreme Court's direction that "[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001).
Having determined that the plaintiff's award is to be reduced by collateral source payments, the court next considers the amount thereof. As noted above, the agreed sum of $3,104.43 is to be deducted. The defendant argues that, in addition to that agreed sum, she is entitled to a further reduction, in the amount of $6,063.15, in recognition of the automatic reduction for the allowance reflected on its bill by Middlesex Hospital, the plaintiff's treatment provider, based on the contract between the hospital and Cigna, the plaintiff's health insurer. She argues that this sum represents an amount which the plaintiff was not required to pay and contrasts its contractual nature with a gratuitous write-off. In response, the plaintiff contends that the operative term in General Statute § 52-225b is "payments," and the amount reduced on the hospital's bill is an accounting entry, not a payment. In Plaintiff's Exhibit 38, the full amount of the Hospital's charges, $9,763.15, without subtracting the Cigna allowance (as reflected on Defendant's Exhibit A, presented at the March 27, 2006 hearing), was submitted to the jury.
The court finds persuasive the recent analysis of this issue in Bonsanti v. Newman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0401098 (February 3, 2006, Gilardi, J.) ( 40 Conn. L. Rptr. 700), where the court found that adjustments by medical care providers pursuant to contractual relationships with a health care insurer were collateral source payments within the meaning of § 52-225b. "`In economic terms, at least, the forgiveness of a debt is as much a payment as a transfer of money.' Hassett v. New Haven, 49 Conn.Sup. 7, 10 (2004) ( 37 Conn. L. Rptr. 735), aff'd, 91 Conn.App. 245, 247, 880 A.2d 975 (2005) . . . In Hassett v. New Haven, supra, 49 Conn.Sup. 7, the court held that voluntary forgiveness of a debt is not a collateral source within the meaning of § 52-225b because the debt is not forgiven pursuant to an insurance arrangement or any contract or agreement. Id., 10. The Appellate Court adopted Hassett v. New Haven, supra, 49 Conn.Sup. 7, `as a proper statement of the issues and the applicable law concerning those issues.' Hassett v. New Haven, [ supra, 91 Conn.App. 247]. Consequently, involuntary forgiveness of a debt, like the adjustments made by medical providers in this case as a condition of their contract [with a health care insurer], is a collateral source payment within the meaning of § 52-225b for the purposes of calculating a reduction in economic damages pursuant to § 52-225a." (Citation omitted.) Bonsanti v. Newman, supra.
The other, earlier decisions cited by the plaintiff pre-date our Appellate Court's decision in Hassett v. New Haven, supra, 91 Conn.App. 245. See Linhard v. Miranda, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 02 0172920 S (August 23, 2005, Eveleigh, J.) ( 39 Conn. L. Rptr. 836); Hernandez v. Marquez, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 377482 (January 5, 2004, Levin, J.) ( 36 Conn. L. Rptr. 351) (no evidence that plaintiff's health care providers chose not to pursue plaintiff for balance owed because of or in consideration of payments made by the plaintiff's insurer; health care providers "opted to "write-off"); Sackman v. Sullivan, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0159227 5 (September 30, 2002, Downey, J.) ( 33 Conn. L. Rptr. 172); Hecht v. Staskiewicz, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99 0423243 S (February 26, 2002, Arnold, J.).
The plaintiff already received the benefit of the Cigna allowance, since it was subtracted from the amount he was billed by Middlesex Hospital. He should not receive that amount again by having it included in the jury's economic damages award. Accordingly, the court finds that the Cigna allowance of $6,063.15 should be added to the agreed amount of $3,104.43, for a total of $9,167.58 in collateral source payments.
Thus, $9,167.58 in collateral source payments must be subtracted from the economic damages award, for a resulting total of $19,147.70. See General Statute § 52-225a(a). This reduces the total verdict to $229,147.70, which must be further reduced by the plaintiff's comparative negligence of 10% ($22,914.77), as found by the jury, to $206,232.93. See General Statute 52-572h(d).
V Motion For Interest Re Offer Of Judgment And Attorneys Fees
In his motion for interest and for attorneys fees, the plaintiff seeks an award of interest based on the fact that his previously filed offer of judgment in the amount of $20,000.00 (#109.00) was not accepted by the defendant, and the amount of the jury's verdict exceeded the offer. In addition, he seeks $350.00 in attorneys fees.
General Statute § 52-192a(b) provides for an award of interest in connection with an offer of judgment. "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve per cent annual interest on said amount, . . . computed from the date the complaint in the civil action was filed with the court if the `offer of judgment' was filed not later than eighteen months from the filing of such complaint." General Statute § 52-192a(b). Practice Book § 17-18 contains a similar provision.
Public Act 05-275 amended § 52-192a, effective October 1, 2005, and applicable to actions accruing on or after that date. The amendment does not apply to this matter.
Practice Book § 17-18 provides, "After trial the judicial authority shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in that plaintiff's `offer of judgment,' the judicial authority shall add to the amount so recovered 12 percent annual interest on said amount, computed as provided in General Statutes § 52-192a . . ."
"The punitive nature of § 52-192a has been recognized repeatedly. An award of interest pursuant to § 52-192a(b) is punitive in nature . . . This interest is mandated when the amount recovered is greater than or equal to the offer of judgment . . . The offer of judgment statute was enacted to promote fair and reasonable pretrial compromises of litigation by penalizing defendants who do not settle cases prior to trial." (Citations omitted; internal quotation marks omitted.) Nunno v. Wixner, 257 Conn. 671, 684, 778 A.2d 145 (2001).
Here, the court's file record reflects that this matter was filed on July 23, 2004. The offer of judgment was filed less than eighteen months later, on January 3, 2005. As noted, the jury's verdict exceeds the amount stated in the offer of judgment. Accordingly, interest, at the statutory and Practice Book-mandated rate of 12 per cent, must be added to the verdict.
At the rate of 12 per cent per annum, the per diem interest on $206,232.93 is $67.80. Computed from July 23, 2004, the date of filing, to the date of this memorandum of decision, interest in the amount of $44,070.00 is awarded (650 days x $67.80 per day equals $44,070.00).
Twelve per cent of $206,232.93 equals $24,747.95 per year; $24,747.95 divided by 365 days equals $67.80 per day.
Also, pursuant to General Statute § 52-192a(b) and Practice Book § 17-18, since the plaintiff's verdict entitles him to offer of judgment interest, the court may award an attorneys fee of $350.00. In the exercise of the court's discretion, the court awards to the plaintiff an attorneys fee of $350.00.
Section 52-192a(b) provides that "[t]he court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly." Practice Book § 17-18 contains a similar provision.
CONCLUSION
For the foregoing reasons, the defendant's motions to set aside the verdict and for remittitur are denied and the defendant's motion for collateral source reduction is granted. For the foregoing reasons, the plaintiff's motion for interest and attorneys fees based on his offer of judgment is wanted.
Judgment may enter for the plaintiff in the amount of the jury's verdict, as reduced by collateral source payments and comparative negligence, $206,232.93, plus offer of judgment interest of $44,070.00, plus attorneys fees of $350.00, for a total of $250,652.93, plus costs. It is so ordered.