Opinion
HHDCV146051838S HHDCV146051842SHHDCV146051843S
11-13-2018
Scott MENARD et al. v. STATE of Connecticut
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
After a bench trial in April and May 2018 in these three consolidated cases concerning underinsured motorist claims, and pursuant to an agreed briefing schedule, in lieu of oral argument, the parties filed memoranda of law, dated May 30, 2018. The court subsequently issued its memorandum of decision on August 24, 2018 (# 121) (decision) .
References to docket entries refer to the Menard matter. The briefing was submitted as applicable to all three cases.
The plaintiff’s filed motions for reconsideration and for additur (# 122) (collectively referred to below as the "motion"), to which the defendant objected (# 124). The plaintiffs argue that the court erroneously concluded that damages for post-traumatic stress disorder (PTSD) were excluded from coverage and seek additur. On October 23, 2018, the court held a hearing concerning the motion at which the parties presented oral argument.
The factual background was discussed in the court’s decision. After consideration, the court issues this memorandum of decision.
The Supreme Court, in Hudson Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012), reiterated the standards which govern reargument or reconsideration: "[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ... It also may be used to address ... claims of law that the [movant] claimed were not addressed by the court ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ..." (Internal quotation marks omitted.).
"[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ... Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). "A motion to reargue is not a device to ... present additional cases or briefs which could have been presented at the time of the original argument ..." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007). "[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court." (Emphasis omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005).
In the decision, pages 8-9, the court stated, "Since the Supreme Court has concluded that emotional distress, without accompanying physical harm, does not constitute a ‘bodily injury, ’ underinsured motorist coverage under Section 38a-336 does not provide coverage for such emotional distress claims. Here, as discussed above, the plaintiffs’ PTSD claims are not a result of their personal injuries. Rather, they are premised on having gone through a life-threatening accident and having to re-experience similar work-related scenarios on a regular basis. Thus, there is no underinsured motorist coverage for these aspects of their claims since they do not constitute ‘damages because of bodily injury.’ See General Statutes § 38a-336(a)(1)(A)."
The plaintiffs argue that with no insurance contract in evidence it is impossible to exclude PTSD from allowable damages. The plaintiffs assert that the defendant failed to offer a policy of insurance and never filed a special defense seeking to exclude damages for PTSD. They contend also that the defendant did not address the issue during the trial and that the court took up the issue sua sponte. They argue that the court’s "finding of fact as to the coverage provided by the UIM policy is clearly erroneous because there is no evidence in the record to support it." See motion, p. 7.
These arguments ignore part of the court’s decision, its assessment of the plaintiffs’ expert’s testimony concerning their claims for damages as a result of suffering from PTSD, and the plaintiffs’ own allegations in their complaints, which are judicial admissions which obviated the need for evidence as to their allegations of the applicability of General Statutes § 38a-336.
First, the plaintiffs’ arguments ignore the court’s finding as to the expert testimony they presented concerning the diagnoses of each of them as suffering from PTSD. In the decision, page 9, the court stated that it did not credit the diagnosis of their expert, Jennifer Honen, that each plaintiff met the criteria for having PTSD.
"Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 374, 119 A.3d 462 (2015). Whether a person is suffering from PTSD is not within the ordinary knowledge and experience of the court as the factfinder in this matter. In the absence of credible expert testimony on the subject, damages may not be awarded to the plaintiffs based on PTSD.
Second, as to the applicability of General Statutes § 38a-336, on the first day of trial, April 24, 2018, the parties acknowledged on the record before the court that the original complaints, dated May 29, 2014, were part of the operative pleadings.
At page 6 of the decision, the court stated, "In their complaints, paragraph 14, the plaintiffs allege that the defendant is required to provide underinsurance coverage in accordance with General Statutes § 38a-336." Each complaint alleges, "In accordance with C.G.S. § 38a-336, the defendants are required to, and its policies provide for, underinsured motorists benefits for the plaintiff."
In its answers, the defendant denied these allegations. At oral argument on the plaintiff’s motions the defendant explained that the paragraph was denied since the State is self-insured and there is no insurance policy; and since the plaintiffs included in the allegation that the defendant is "required" to provide certain benefits. The defendant contends that it is not obligated to provide coverage pursuant to an insurance policy and the benefits it provides are done so voluntarily, and pursuant to collective bargaining agreements with state troopers. Thus, the denial was not a denial that § 38a-336 governs.
The defendant also alleged a first special defense to each complaint, in which it stated, "The plaintiff’s recovery, if any, is limited to the $1,000,000 amount of underinsured motorist coverage as set forth in the defendant’s Self-Insured Motorist Coverage Form and any other terms and conditions of the defendant’s self-insured coverage for the Department of Public Safety." The plaintiffs replied by denying this special defense.
On the first day of trial it was agreed that the parties were seeking the court’s determination of the "full value" of each plaintiffs’ case. The parties were then anticipating presenting a stipulation after review of the court’s decision, and, depending on the amounts of damages awarded by the court, if the parties were unable to agree, a separate hearing would be scheduled about coverage and offsets, such as related to workers’ compensation benefits.
The defendant attached to its objection to the plaintiffs’ post-trial motion a copy of a Memo concerning the State of Connecticut Automobile Liability Insurance Program (Memo). In the objection, page 3, the defendant stated that "The Plaintiffs filed no discovery requests in this case seeking the Defendant’s self-insured motorist coverage form, the reason being that counsel for the Defendant has provided the coverage form to Counsel for the Plaintiffs on many previous occasions and Plaintiffs’ counsel knows full well that the Defendant’s coverage terms, in the absence of a traditional policy of insurance, specifically refers to the Defendant’s intent that its coverage be in accordance with § 38a-336 and the case law interpreting that statute."
At the hearing on the motion, while plaintiffs’ counsel objected to the presentation of the Memo, he did not dispute the statement by the defendant’s counsel that the Memo had been provided to plaintiffs’ counsel on many previous occasions. Thus, the plaintiffs do not claim surprise. Instead, plaintiffs’ counsel characterized defense counsel’s presentation of the Memo with the objection as "underhanded." The court views this characterization of defense counsel’s conduct as unwarranted.
The court’s decision was not premised on the Memo, which was not part of the trial record.
The defendant was not required to allege in a separate special defense that PTSD is not a bodily injury or that underinsured motorist coverage was limited to bodily injuries. Rather, it is undisputed that there are no terms of an insurance policy which govern this matter. This case does not involve interpreting the terms of an insurance contract since there is none. Thus, since they were well aware of this, the plaintiffs’ arguments in their motions about an applicable policy of insurance or a UIM policy are unfounded.
Rather, what was pleaded by the plaintiffs in the above-quoted paragraph of their complaints remains operative. "The principle that a plaintiff may rely only upon what he has alleged is basic ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ... What is in issue is determined by the pleadings and these must be in writing." (Citation omitted; internal quotation marks omitted.) Wright v. Hutt, 50 Conn.App. 439, 449-50, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). "Construction of the effect of pleadings is a question of law ... [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial." (Internal quotation marks omitted.) Brye v. State, 147 Conn.App. 173, 177, 81 A.3d 1198 (2013). "It is axiomatic that the parties are bound by their pleadings." (Internal quotation marks omitted.) Id.
In their complaints, the plaintiffs invoked § 38a-336 by alleging that, in accordance therewith, the defendant was required to provide underinsured motorists benefits. "Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) W. Haven Sound Dev. Corp. v. W Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986). "[T]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i. e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it." (Internal quotation marks omitted.) State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980). See Flanagan v. Blumenthal, 265 Conn. 350, 373-74, 828 A.2d 572 (2003) (same).
The plaintiffs’ judicial admission in their pleadings "dispenses with proof, and is equivalent to proof." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001) (citing plaintiff’s admissions in complaints). As in Ferreira v. Pringle, supra, "at no time during the trial ... did [the plaintiffs] seek to have [their] admission[s] withdrawn, explained or modified." (Internal quotation marks omitted.) Id. Thus, in view of their judicial admission that coverage was provided in accordance with § 38a-336, the plaintiffs may not now dispute its applicability.
In support of their argument, the plaintiffs rely on Socci v. Pasiak, 116 Conn.App. 685, 978 A.2d 96 (2009), where only a declaration page showing a policy limit, and not the applicable insurance policy, was placed into evidence. See id., 688. The circumstances there are distinguishable. That matter did not involve judicial admissions in the operative pleadings. Also, it did not concern General Statutes § 38a-336. The plaintiffs here neither alleged nor provided evidence that there was coverage beyond the scope of § 38a-336.
Similarly, the circumstances differed in DePlante v. Amica Mut. Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 08 5020192 (August 4, 2009, Wagner, J.T.R.) (48 Conn.L.Rptr. 359), cited by the plaintiffs. In DePlante, in contrast to here, there was an underinsured motorist insurance policy the terms of which were interpreted by the court. That matter did not concern § 38a-336 or judicial admissions.
In addition, the plaintiffs incorrectly argue that the court sua sponte raised the issue of whether damages for PTSD were recoverable. As the Appellate Court has explained, "The term ‘sua sponte’ is defined as [o]f his or its own will or motion; voluntarily; without prompting or suggestion.’ Black’s Law Dictionary (6th Ed. 1990)." Heim v. California Fed. Bank, 78 Conn.App. 351, 364 n.24, 828 A.2d 129 (2003).
Here, the court did not act sua sponte. Rather, it addressed an argument explicitly presented by the defendant in its post-trial brief, at pages 13-14. The fact that the plaintiffs did not present argument as to this issue in their post-trial memorandum of law does not make the court’s discussion of it in its decision an issue that the court raised sua sponte.
Rather, the fact that the plaintiffs did not address the issue in their post-trial memorandum of law appears to be a result of their own tactical decision to agree to a post-trial briefing schedule, in lieu of oral argument, in which the parties agreed to file simultaneous briefs with no replies. The court is not responsible for the tactical decisions made by litigants at trial.
The plaintiffs, having received the defendant’s post-trial brief and, subsequently, the court’s decision, now complain that the issue was addressed by the court. As discussed above, the plaintiffs’ own complaints alleged the applicability of General Statute § 38a-336. The Supreme Court has "made it clear that [it] will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. City of Bridgeport, supra, 282 Conn. 87.
Instead of demonstrating to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, the plaintiffs argue that they are presenting a new issue for the court’s consideration, "as to whether PTSD which is accompanied by NEW physical harm should be covered under the UIM ‘bodily injury’ provision." See plaintiffs’ motion, p. 5. The motion provides no citation as to the UIM ‘bodily injury’ provision to which they refer.
The plaintiffs criticize the court for its citation, at page 7 of the decision, to McNeill v. Metro. Prop. & Liab. Ins. Co., 420 Mass. 587, 590, 650 N.E.2d 793 (1995). As the court discussed in the decision, the Supreme Court, in Galgano v. Metro. Prop. & Cas. Ins. Co., 267 Conn. 512, 522, 838 A.2d 993 (2004), cited McNeill, after noting that the "majority of jurisdictions that have considered [the] issue have held that bodily injury encompasses only physical harm ..." (Internal quotation marks omitted.)
As discussed in the decision, pages 7-9, this court relied on persuasive Connecticut Supreme Court decisional authority. For example, the court is not persuaded by the plaintiff’s argument that the Supreme Court’s discussion in Taylor v. Mucci, 288 Conn. 379, 952 A.2d 776 (2008), has no bearing here. The plaintiff there alleged she suffered emotional distress as a result of witnessing bodily injuries suffered by her son. See id., 288 Conn. 382. The applicable insurance policy defined the per person liability limit as the most the insurer will pay "for all damages, including ... emotional distress ... arising out of bodily injury sustained by any one person[.]" Id. As stated in this court’s decision, the court in Taylor v. Mucci explained that, "emotional distress, without accompanying physical harm, does not constitute a ‘bodily injury.’" Id., 288 Conn. 385-86. The Supreme Court determined that the plaintiff did not suffer a "bodily injury" within the meaning of the policy. See id., 392.
Although they criticize the court for its citation of the Connecticut Supreme Court’s reference to Massachusetts authority, the plaintiffs then go on to assert that the court should have relied on non-binding, out-of-state authority. See plaintiffs’ motion, pp. 5-7. The plaintiffs’ citation of these out-of-state decisions represents a prohibited attempt at a "second bite of the apple." As stated above, a motion to reargue may not be utilized to present additional cases which could have been presented at the time of the original argument. See C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 101 n.39. These newly cited out-of-state cases could have been presented earlier. The court is not required to consider them. See Weinstein v. Weinstein, supra, 275 Conn. 705.
At oral argument concerning their motion, the plaintiffs asserted that they were entitled to recover the same damages they would be entitled to against the underinsured driver, nonparty Bowers. See decision, p. 2 (Bowers’ vehicle struck plaintiff Zdrojeski’s state police cruise from behind). The Supreme Court has stated that it is "not persuaded that the insured’s recovery from the insurer must always be identical to that which could be obtained from an adequately insured tortfeasor. We previously have concluded that the insurer is not the alter ego of the tortfeasor and ... they do not share the same legal [status]." (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., 245 Conn. 169, 187, 713 A.2d 1269 (1998). "Moreover, we never have said that an uninsured motorist claimant must have the same level of benefits available as a plaintiff suing a tortfeasor directly. Rather, we have stated that [t]he purpose of [§ 38a-336] is to compensate an insured to the same extent as he would have been if he had been injured by a motorist carrying liability insurance equal to the [uninsured motorist] coverage carried by the insured ... That is not the same thing as saying that the insured must be in exactly the same position as an injured plaintiff suing a tortfeasor. It merely requires that the amount of overall benefits available to a plaintiff be equal to the amount of coverage available from a tortfeasor with an equivalent policy." (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 189.
For the reasons stated above, and those stated in the court’s decision, the plaintiffs’ motions for reconsideration and for additur are denied.