Opinion
CV106003939S
12-28-2018
Vivian Gagliano et al. v. Advanced Specialty Care PC dba Advanced Surgical Care et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ozalis, Sheila A., J.
MEMORANDUM OF DECISION TOLLING OF POSTJUDGMENT INTEREST
OZALIS, J.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2014, a jury returned a verdict as against the defendant, Dr. Venkata Bodavula, a resident at Danbury Hospital, and the defendant, Danbury Hospital, in the amount of $9, 602, 388.03 in the plaintiffs Vivian and Phillip’s medical malpractice action that was brought following the perforation of plaintiff Vivian Gagliano’s colon during a routine hernia surgery. Both of the defendants filed motions to set aside the verdict and motions for judgment notwithstanding verdict, all of which were denied by this court.
Both defendants also filed an appeal of the judgment in plaintiffs’ favor with the Appellate Court, and defendant Bodavula subsequently withdrew his appeal. On September 3, 2015, defendant Bodavula paid his portion of the judgment, along with offer of compromise interest, in full. On February 5, 2016, this court set the rate of postjudgment interest at eight percent commencing on September 4, 2015, a date agreed to by both parties, to the date of payment of judgment in this case by defendant Danbury Hospital. On March 28, 2016, this court granted Danbury Hospital’s request to partially reduce the $9, 602, 388.03 judgment to $8, 602, 388.03, based on the payment made by Bodavula.
Danbury Hospital will hereafter be referred to as the defendant as it is the only defendant that is a party to the present motion.
On August 30, 2016, the Appellate Court reversed the judgment in favor of the plaintiffs only as against the defendant Danbury Hospital and remanded the case for judgment to be rendered in favor of defendant. Gagliano v. Advanced Specialty Care, P.C., 167 Conn.App. 826, 851 (2016), rev’d, 329 Corm. 745, 189 A.3d 587 (2018). Shortly thereafter, the plaintiffs filed a petition for certification for appeal from the decision of the Appellate Court, which was granted by the Supreme Court on October 11, 2016. Gagliano v. Advanced Specialty Care, P.C., 323 Conn. 926, 150 A.3d 229 (2016). On August 14, 2018, the Supreme Court reversed the judgment of the Appellate Court only with respect to Danbury Hospital’s liability and the case was remanded with the direction to affirm the judgment of the trial court in favor of the plaintiffs. Gagliano v. Advanced Specialty Care, P.C., supra, 329 Conn. 770.
On August 27, 2018, the plaintiffs received a check from the defendant in the amount of the judgment of $8, 602, 388.03. On August 27, 2018, the defendant filed the present motion to determine whether postjudgment interest was tolled from the date of the Appellate Court’s decision, as the defendant had agreed that postjudgment interest had accrued up until that date. On September 24, 2018, the plaintiffs filed an objection to the defendant’s motion to determine tolling of postjudgment interest. On November 5, 2018, the defendant filed a reply brief in further support of its motion. The court heard oral argument on this motion on November 9, 2018.
Danbury Hospital also filed a motion for a collateral source hearing to reduce the judgment of $8, 602, 388.03, but subsequently withdrew that motion and waived any claim to a collateral source reduction at the November 5, 2018 hearing.
II.
DISCUSSION
General Statutes § 37-3b provides: "(a) For a cause of action arising on or after May 27, 1997, interest at the rate of ten per cent a year, and no more, shall be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by negligence, computed from the date that is twenty days after the date of judgment or the date that is ninety days after the date of verdict, whichever is earlier, upon the amount of the judgment; (h) If any plaintiff in such action files a postverdict or postjudgment motion or an appeal, the recovery of interest by such plaintiff shall be tolled and interest shall not be added to the judgment for the period that such postverdict or postjudgment motion or appeal is pending before the court. The provisions of this subsection shall not apply if the reason for the filing of a postverdict or postjudgment motion or appeal by the plaintiff is to reply to or answer a motion or appeal filed by a defendant"
In support of its motion regarding the tolling of postjudgment interest, the defendant argues that, pursuant to the plain language of General Statutes § 37-3b(b), once the Appellate Court issued its decision reversing this court’s judgment in favor of plaintiffs, the defendant’s appeal ceased, and thus, when the plaintiffs filed an appeal to the Supreme Court, the running of postjudgment interest was tolled under § 37-3b(b). The defendant further asserts that the exception to the tolling provision in § 37-3b(b) is inapplicable because the "reason" for the plaintiffs’ appeal to the Supreme Court was not "to reply to or answer" the defendant’s appeal because, once the Appellate Court issued its decision, there was no longer an appeal filed by the defendant to which the plaintiffs could "reply to or answer."
In response, the plaintiffs argue that the defendant’s interpretation of § 37-3b(b) ignores the plain language of the statute and is inconsistent with its purpose. The plaintiffs assert that, under the plain meaning of the statute, in order to determine if the exception to the tolling provision applies, the court must ask if the "reason" for the plaintiff’s post-verdict motion or appeal is to "answer" or "reply"-giving those terms their everyday meaning-to a motion or appeal filed by a defendant. Because the reason for the filing of the plaintiffs’ appeal to the Supreme Court was to respond to the defendant’s challenge to the verdict and judgment in the plaintiffs’ favor, the tolling provision in § 37-3b(b) is inapplicable. The plaintiffs further claim that § 37-3b was amended in 1997 in order to make postjudgment interest in negligence actions mandatory and to allow for tolling only when the plaintiff challenges a favorable judgment by trying to make it more favorable, and interpreting § 37-3b as advocated by the defendant would thwart that purpose.
There is no Connecticut appellate authority regarding the tolling provision set forth in § 37-3b(b) and its exception. Because other jurisdictions’ postjudgment interest statutes do not employ the same or similar language as § 37-3b(b), cases interpreting those jurisdictions’ postjudgment interest statutes are unhelpful in determining the meaning of § 37-3b(b). Accordingly, this court shall apply the principles of statutory construction in order to determine the applicability of the tolling provision to the present matter.
"The process of statutory interpretation involves a reasoned search for the intention of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ... When construing a statute, we first look to its text, as directed by General Statutes § 1-2z ..." (Citation omitted; internal quotation marks omitted.) Genesky v. East Lyme, 275 Conn. 246, 253, 881 A.2d 114 (2005). Section 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." "When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ..." (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 147, 989 A.2d 593 (2010).
Applying the plain and unambiguous language of the exception to the tolling provision set forth in § 37-3b(b) to the present matter, this court finds that the plaintiffs’ appeal to the Supreme Court did not toll postjudgment interest because the reason for the filing of that appeal was to "reply to or answer" an appeal filed by the defendant. It is plain that, in amending § 37-3b in 1997, the legislature was not using the terms "answer" or "reply" as they are described in the Practice Book. If they were given such meaning, they would not make sense within the context of § 37-3b. Therefore, the words "answer" and "reply," as used in § 37-3b(b) must be given their ordinary meanings.
Practice Book § 10-46, entitled "The Answer; General and Special Denial," describes an "answer," as follows: "The defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally. Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity, or as a corporation, or to controvert the execution or delivery of any written instrument or recognizance sued upon, shall deny the same in the answer specifically."
Everyday definitions of "answer" consist of the following: "something spoken or written in reply to a question"; "something done in response or reaction"; "to speak or write in reply"; "to act in response to an action performed elsewhere or by another"; and "to act in response to." Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012). Everyday definitions of "reply" are: "to respond in words or writing"; "to do something in response"; "to give as an answer"; and "something said, written, or done in answer or response." Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012).
The plaintiffs contend that under § 37-3b(b), tolling of postjudgment interest does not occur if the reason for the filing of an appeal by the plaintiff is to respond to an appeal filed by a defendant. The plaintiffs argue that since the reason for the plaintiffs’ filing of the appeal to the Supreme Court was to respond to the defendant’s appeal to the Appellate Court, postjudgment interest was not tolled while the appeal was pending before the Supreme Court.
Such an interpretation is consistent with the holding of Fraser v. Wyeth, Inc., 992 F.Supp.2d 68, 102 (D.Conn. 2014). In Fraser, after a three-and-a-half-week trial, the jury returned a verdict finding the defendant liable on all of the plaintiffs’ claims. Id., 77-78. Thereafter, the plaintiffs moved for an award of postverdict interest pursuant to § 37-3b. Id., 101. The court held that: "Here, final judgment did not enter immediately after the jury returned its verdict because Plaintiffs requested punitive damages and additional post-verdict proceedings and motion practice were required for the Court to award punitive damages in accordance with Plaintiffs’ request. Therefore ... such an award would not be warranted in this case, because postverdict interest is tolled during the time a court is ruling on post-verdict proceedings initiated by the plaintiff. Thus, Plaintiffs’ motion for the assessment of post-verdict interest in accordance with ... § 37-3b is denied." Id., 102. Applying this reasoning to the present case, because the plaintiffs here did not initiate postverdict or postjudgment proceedings, which were instead initiated by the defendant when it filed its appeal to the Appellate Court, postjudgment interest would not be tolled.
Even if the exception to the tolling provision in § 37-3b(b) could also reasonably be read as narrowly and hyper-technically as advocated by the defendant, such that the provision is ambiguous, the defendant’s interpretation would not be plausible in light of the legislative history of the statute’s 1997 amendments and the policy that the statute is designed to implement.
Indeed, that is the result reached by the court in Sargis v. Donahue, Superior Court, judicial district of New Britain, Docket No. CV-05-4002998-S (May 13, 2014, Tanzer, J.T.R.) . In that case, following a jury verdict in favor of the plaintiff, the defendants filed a motion for judgment notwithstanding the verdict, which was granted. Id. The plaintiff subsequently filed a motion to reargue, which was denied. Id. Thereafter, the plaintiff filed an appeal to the Appellate Court, which reversed the decision of the Superior Court and remanded the case with direction to reinstate the jury’s verdict and to render judgment in favor of the plaintiff. Id. After the defendants’ petition for certiorari to the Supreme Court was denied, the defendants paid the plaintiff the amount of the verdict less a reduction for collateral sources and the court reinstated the verdict and entered judgment for the plaintiff. Id. The plaintiffs then sought postjudgment interest under § 37-3b, but the defendants objected, arguing that postjudgment interest was tolled while the plaintiff’s appeal was pending. Id. The plaintiff countered that the exception to the tolling provision applied because his appeal was in response to the defendants’ motion. Id.
The court held that" ‘subsection (b) of § 37-3b is not plain and unambiguous because the language ‘reply to or answer’ may be limited to direct responses to a motion or appeal initiated by a defendant, such as an objection or cross appeal. On the other hand, it may include indirect responses, such as a motion to reargue or an appeal initiated by a plaintiff after a ruling in favor of the defendant. During the debate regarding the amendment of § 37-3b (P.A. 97-58), Representative Lawlor explained that in situations where a verdict or a judgment is rendered by a court and payment is delayed, there would be 10 percent interest assessed on the late payment. Representative Lawlor noted that ‘there would be an exception of course if the plaintiff, the person to whom money is owed, actually initiates some type of postjudgment motion and thereby delays the date of judgment.’ ... 40 H.R. Proc., Pt. 5, 1997 Sess., p. 1998, remarks of Representative Lawlor. Based on this expression of legislative intent, tolling applies where the plaintiff delays judgment. This is a reasonable and appropriate interpretation, because the 1997 version of the statute mandates an award of postjudgment interest, but does not require it during periods of delay initiated by the plaintiff." (Emphasis omitted.) Sargis v. Donahue, supra, Superior Court, Docket No. CV-05-4002998-S.
The court in Sargis further held that "regardless of whether a statute provides for mandatory or discretionary postjudgment interest, the policy behind any such provision is to compensate the successful party for the loss of the use of the money that he or she is awarded from the time of the award until the award is paid in full." (Internal quotation marks omitted.) Id., citing DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 54-55, 74 A.3d 1212 (2013), "An expansive interpretation of the term ‘reply or answer’ in the exception to the tolling provision is consistent with that policy and with established law which holds that [a]s a matter of fairness, when a party seeking postjudgment interest cannot be said to have wrongfully delayed the matter and where there is a rescript that modifies [a] judgment, postjudgment interest is to run from the date of the original judgment. It should be as if the correct judgment had been issued by the original trial court, with the interest running from that date." (Emphasis omitted; internal quotation marks omitted.) Sargis v. Donahue, supra, Superior Court, Docket No. CV-05-4002998-S. The court concluded that "the plaintiff was appealing from an erroneous judgment. He did not wrongfully delay the rendering of judgment in his favor. The plaintiff’s postjudgment motion to reargue and his appeal were filed to reply to or answer the postverdict motion filed by the defendants. The tolling provision of § 37-3b(b) does not apply to this plaintiff." Id.
The defendant also argues that Sargis v. Donahue, supra, Superior Court, Docket No. CV-05-4002998-S, was incorrectly decided in light of DiLieto v. County Obstetrics & Gynecology Group, P.C., 316 Conn. 790, 807-08, 114 A.3d 1181 (2015), which the defendant characterizes as establishing that public policy does not support accrual of postjudgment interest until there is a judicial decision mandating payment of postjudgment interest. The court’s holding in DiLieto v. County Obstetrics & Gynecology Group, P.C, supra, 316 Conn. 807-08, that is relied on by the defendant, however, was addressing the trial court’s award of interest on its postjudgment interest award. In this action, however, interest on an award of postjudgment interest is not at issue as the defendant has conceded that postjudgment interest did accrue on the judgment rendered in plaintiffs’ favor until the Appellate Court’s decision. Accordingly, the defendant’s argument is unpersuasive.
The analysis provided by the court in Sargis regarding the legislative history of, and the policy behind, § 37-3b(b) is persuasive to this court. Therefore, in the present case, even if the exception to the tolling provision set forth in § 37-3b(b) were to be interpreted as an ambiguous provision allowing for both the narrow and hyper-technical interpretation advocated by the defendant and the expansive interpretation advocated by the plaintiffs, the plaintiffs’ interpretation is the most plausible and is consistent with the legislative history of § 37-3b(b).
The defendant argues, however, that the tolling provision in § 37-3b(b) would be rendered meaningless if the court were to characterize the plaintiffs’ appeal to the Supreme Court as a reply or an answer to the defendant’s appeal to the Appellate Court, because under such an interpretation, the tolling provision is always inapplicable where a defendant successfully appeals to the Appellate Court, but is reversed by the Supreme Court. Such an interpretation, however, does not render the tolling provision meaningless because it would allow for tolling of postjudgment interest where a plaintiff initiates the postverdict or postjudgment motion or appeal. Moreover, it appears that, under the defendant’s interpretation, the opposite result would occur, such that the tolling provision would always apply whenever a defendant successfully appealed to the Appellate Court, even if plaintiff then successfully appealed to the Supreme Court. Thus, the defendant’s interpretation of § 37-3b(b) leads to a result that is inconsistent with the policy of postjudgment interest statutes, which "is to compensate the successful party for the loss of the use of the money that he or she is awarded from the time of the award until the award is paid in full." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 310 Conn. 55. Therefore, this court finds the defendant’s argument to be unpersuasive.
Finally, the defendant claims that the allowance of postjudgment interest depends on whether the withholding of a judgment is wrongful. According to the defendant, its withholding of the judgment was not wrongful because it relied on the Appellate Court’s decision that vacated the trial court’s judgment. The defendant grounds this argument in the reasoning set forth in Carrano v. Yale-New Haven Hospital, 112 Conn.App. 767, 773-74, 963 A.2d 1117 (2009).
This court, however, finds that the holding in Carrano is not applicable to this case. The issue in Carrano was whether the trial court abused its discretion in denying the plaintiff’s motion for postjudgment interest brought pursuant to a former version of § 37-3b, General Statutes (Rev. To 1991) § 37-3b, in which it was discretionary with the trial court whether to award postjudgment interest. Id., 771-72. The Appellate Court held that the trial court did not abuse its discretion in denying the plaintiff’s motion because "[t]he [trial] court reasonably could have concluded that the defendants’ detention of the money awarded by the jury was not wrongful when they initially prevailed on their appeal and a new trial had been ordered. Further, this court, and subsequently our Supreme Court, agreed with the defendants that the award of economic damages was not supported by the evidence. Although a divided Supreme Court ultimately upheld the plaintiff’s judgment, it reduced the award of economic damages by a significant amount. Under those circumstances, a determination that the money was not wrongfully withheld clearly is supported by the record." Id., 773-74.
In this action, however, the current amended version of § 37-3b applies, under which the trial court does not have discretion in determining whether the plaintiffs are entitled to postjudgment interest. See DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 310 Conn. 42 n.5 ("[f]or all claims arising on May 27, 1997, or thereafter, awards of interest under § 37-3b are mandatory"). Thus, the court does not have any discretion to consider whether the defendant’s withholding of the judgment was wrongful and it is irrelevant whether the defendant’s withholding of the judgment was done in reliance on the Appellate Court’s decision that vacated the trial court’s judgment.
For the reasons set forth above, this court finds that postjudgment interest was not tolled after the Appellate Court’s decision in defendant’s favor and during the pendency of the plaintiffs’ appeal to the Supreme Court. The court finds that postjudgment interest was not tolled, but continued to accrue on the $8, 602, 388.03 judgment against the defendant at the rate of eight percent from September 4, 2015 through August 27, 2018, the date of payment of the judgment.
III.
CONCLUSION
Based on the foregoing, this court finds that pursuant to § 37-3b, postjudgment interest was not tolled, and postjudgment interest is due and owing at the rate of eight percent from September 4, 2015 through August 27, 2018, the date of payment of the judgment.
Practice Book § 10-57, entitled "Matter in Avoidance of Answer," describes a "reply" as follows: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. Such a reply may contain two or more distinct avoidances of the same defense or counterclaim, but they must be separately stated."