Opinion
No. 377482
January 5, 2004
MEMORANDUM OF DECISION
This action arises out of a motor vehicle accident between the plaintiff, Nancy Hernandez, and the defendant, Carlos Marquez, on July 30, 2000. Two weeks after the accident, the plaintiff began medical treatment for injuries she sustained in the accident. The plaintiff's treatment included an MRI of her neck, which revealed two herniated discs. On September 14, 2000, the plaintiff filed this action against the defendant, seeking money damages for the injuries she sustained as a result of the defendant's negligence. In her original complaint, the plaintiff did not mention that she had herniated discs. On November 7, 2000, the plaintiff underwent surgery to repair the herniated discs. The cost of the surgery exceeded $60,000.
On November 16, 2000, the plaintiff filed an amended complaint. In her amended complaint, the plaintiff did not make any material changes to her statement of injuries. She did not allege that she had suffered herniated discs nor that she had undergone surgery to repair the discs. On November 16, 2000, the plaintiff filed an offer of judgment in the amount of $20,000, pursuant to General Statutes § 52-192a and Practice Book § 17-14. The offer was not accepted within the statutory deadline of thirty days to do so.
In the plaintiff's original and the amended complaints, paragraph four provides: "The Plaintiff, Nancy Hernandez, suffered injuries of a serious, painful and permanent nature in that she sustained a contusion of the cervical and lumbar spine; cervical radiculopathy at C5-C6 and C6-C7; lumbar radiculopathy at L5-S1; a contusion to her ribs; headaches; anxiety and a general shock to her nervous system."
General Statutes § 52-192a provides in pertinent part: "(a) 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 later than thirty days before trial, file with the clerk of the court a written `offer of judgment' signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself . . ."
Practice Book § 17-14 parallels the offer of judgment statute in § 52-192a.
On December 14, 2000, the defendant filed interrogatories and a request for production of documents. On December 15, 2000, the plaintiff mailed the defendant's attorney a request for leave to file a second amended complaint to allege that she had suffered herniated discs as a result of the accident. On January 11, 2001, the plaintiff filed a motion for extension of time to respond to the defendant's discovery requests. Throughout the first half of 2001, the plaintiff reclaimed the motion for extension of time on six different dates. On May 1, 2001, the defendant filed a motion for nonsuit; on May 23, he filed another motion for nonsuit. In response to the defendant's motion for nonsuit of May 23, 2001, the defendant learned that the court granted the plaintiff's motion for extension of time.
The plaintiff reclaimed the motion for extension of time on February 9, March 15, March 22, March 29, April 6 and April 12, 2001.
The court granted the plaintiff's motion for extension of time on December 18, 2000, Rush, J., January 26, 2001, Brennan, J. and May 10, 2001, Skolnick, J.
On June 20, 2001, the defendant finally received the plaintiff's answers from the interrogatories and request for document production. Only then did the defendant become aware of the extent of the plaintiff's injuries, including the herniated discs, the surgery to repair them and the cost of the surgery. On August 20, 2001, the defendant filed an acceptance of the plaintiff's offer of judgment. On August 23, 2001, the plaintiff filed an objection to the defendant's acceptance of the offer of judgment on the ground that the acceptance was untimely, pursuant to § 52-192a, and that the defendant failed to file a motion for an extension of time to accept the offer of judgment. On September 4, 2001, the court (Sheedy, J.) issued an order sustaining the plaintiff's objection. On November 8, 2001, the defendant filed an offer of judgment in the amount of $20,000. That offer was never accepted.
General Statutes § 52-192a(a) provides in pertinent part: "Within sixty days after being notified of the filing of the `offer of judgment' and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written `acceptance of offer of judgment' agreeing to a stipulation for judgment as contained in plaintiff's `offer of judgment.' . . . If the `offer of judgment' is not accepted within sixty days and prior to the rendering of a verdict by the jury or an award by the court, the `offer of judgment' shall be considered rejected and not subject to acceptance unless refiled . . ."
The case was tried to a jury. On July 30, 2003, the jury returned a verdict for the plaintiff, finding that she had sustained economic damages of $72,756.55 and noneconomic damages of $300,000.00, for a total award of $372,756.55. The jury also found the plaintiff to be 23 percent comparatively negligent, thereby reducing the verdict to $287,022.54. This court accepted the verdict.
The defendant, on August 8, 2003, filed a motion to stay and preclude the award of offer of judgment interest to the plaintiff based on Practice Book § 1-8. The plaintiff timely filed an objection and memorandum of law in opposition. The defendant also objected to certain items in the plaintiff's bill of costs. Finally, the defendant moved for a collateral source reduction of the award of economic damages pursuant to General Statutes § 52-225a.
I
The defendant's motion for stay seeks to prevent an award of interest to the plaintiff based on her offer of judgment. The motion is based on two arguments. First, the defendant argues that an award of interest to the plaintiff will work surprise and injustice to the defendant, pursuant to Practice Book § 1-8. The defendant argues that in the interest of advancing justice, the court should not strictly read Practice Book § 17-18 and General Statutes § 52-192a to require an award of interest pursuant to § 52-192a. Second, the defendant argues that there was "a conscious attempt by the [attorney for the] plaintiff to use Practice Book § 17-18 and General Statutes § 52-192a, to work surprise and . . . injustice." Specifically, the defendant contends that the plaintiff's attorney purposefully withheld information from the defendant before the expiration of time for the defendant to accept the plaintiff's offer of judgment to ensure that interest, pursuant to § 52-192a, would be factored into any judgment or settlement negotiations for the plaintiff. The plaintiff counters that the addition of offer of judgment interest, pursuant to § 52-192a, is not discretionary, but mandatory. Furthermore, the plaintiff argues that she was within her statutory right to file her offer of judgment at anytime after the commencement of the suit.
Defendant's Motion to Stay and Preclude the Addition of Offer of Judgment Interest, ¶ 23.
A.
The defendant first moves to preclude an award of interest based on Practice Book § 1-8. Section 1-8 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." The Practice Book prescribes the rules of procedure for the Superior Court. See Practice Book § 1-1. In essence, the defendant argues that § 1-8 confers discretion on the courts to interpret an act of the legislature "liberally" to avoid "surprise or injustice." Clearly, this is not so.
It is true that the provisions paralleling the offer of judgment statutes in § 52-192a are also contained in the Practice Book §§ 17-11 to 17-18. These rules of practice facilitate the implementation of the General Assembly's offer of judgment statutes, which require that the court perform certain functions — that offers and acceptances be included by the clerk in the record of the case; Practice Book § 17-17; that the judicial authority examine the record after trial to determine if the plaintiff made an offer of judgment which the defendant failed to accept; Practice Book § 17-18; that the court render judgments in accordance with offers that have been accepted; Practice Book §§ 17-12, 17-15; or add interest and award discretionary attorneys fees where a plaintiff's offer of judgment has not been accepted. Practice Book § 17-18. The rules of practice, however, do not impress § 1-8 onto statutes. Practice Book § 1-8 is a rule of procedure. "The rules for the superior court govern the practice and procedure in the superior court in all civil and family actions whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in all proceedings on juvenile matters . . ." Practice Book § 1-1(a). "It is well settled . . . that the courts do not have the authority to enact rules governing substantive rights and remedies." (Citations omitted.) Mitchell v. Mitchell, 194 Conn. 312, 324, 481 A.2d 31 (1984).
Section 52-192a has been deemed substantive for federal diversity jurisdiction purposes. Frenette v. Vickery, 522 F. Sup. 1098 (D.Conn. 1981). "To hold otherwise would indeed frustrate the [ Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)], goals of minimizing forum shopping in the state or federal courts and avoiding the inequitable administration of laws within a particular state. Otherwise those qualified defendants who have refused to accept reasonable settlement offers prior to the commencement of suit could avoid having to pay interest on those offers merely by a timely removal of the case to a federal court. Erie was aimed precisely at preventing such behavior." Id., 1100.
On the other hand, § 52-192a has been held to be procedural for conflicts of law purposes. Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn. App. 640, 651, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). As the Supreme Court has recently stated, approving the language in Winters, "§ 52-192a imposes a penalty for wasting this state's judicial resources . . . [and serves as] an indigenous procedural device for promoting judicial economy . . ." (Internal quotation marks omitted.) Nunno v. Wixner, 257 Conn. 671, 684, 778 A.2d 145 (2001); see also Accettullo v. Worcester Ins. Co., 256 Conn. 667, 671, 775 A.2d 943 (2001) ("§ 52-192a is a procedural rule, punitive in nature, and enacted to promote fair and reasonable pretrial compromises of litigation." [Internal quotation marks omitted]). For conflicts of law purposes, the statute is procedural in the sense that "§ 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts." Paine Webber Jackson Curtis, Inc v. Winters, supra, 653.
As between the powers of the legislature and those of the judiciary, however, the matter of prejudgment interest is manifestly "substantive." This is aptly demonstrated by applying the test for determining whether a statute unconstitutionally encroaches on the power of the judiciary. "[A] two part inquiry has emerged to evaluate the constitutionality of a statute that is alleged to violate separation of powers principles by impermissibly infringing on the judicial authority . . . A statute will be held unconstitutional on those grounds if: (1) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court's judicial role." (Internal quotation marks omitted.) State v. McCahill, 261 Conn. 492, 505-06, 811 A.2d 667 (2002). First, prejudgment interest is a matter that has traditionally been within the domain of the legislature; see, e.g., General Statutes (1849 Rev.), tit. 1, §§ 93-96; General Statutes (1902 Rev.), tit. 6, §§ 727-29; not the judiciary. Second, far from interfering with the orderly functioning of the court's judicial role, the Supreme Court has characterized § 52-192a as a statute that "imposes a penalty for wasting this state's judicial resources . . . [and serves as] an indigenous procedural device for promoting judicial economy . . ." (Internal quotation marks omitted.) Nunno v. Wixner, supra, 257 Conn. 684. Since the enactment of § 52-192a was within the constitutional domain of the legislature, its terms may not be modified or abridged by a rule of practice. See State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956) ("[i]n the field of legislation, the legislature is supreme"). "The Superior Court is empowered to adopt and promulgate rules regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits . . . Just as the general assembly lacks the power to enact rules governing procedure that is exclusively within the power of the courts . . . so do the courts lack the power to promulgate rules governing substantive rights and remedies." (Citations omitted; emphasis added; internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 86 n. 1, 709 A.2d 540 (1998).
Since § 52-192a confers a substantive right to interest, Practice Book § 1-8 may not abridge that right.
B.
Next, the defendant argues that "the plaintiff, [through her attorney], engaged in a pattern [of] repeated delay in responding to the standard interrogatories and production requests which would make the defendant aware of the nature and extent of the damages to the plaintiff. In addition, it was only around June 20, 2001, approximately seven months after the filing of the [o]ffer of [j]udgment, [that] . . . the defendant receive[d] any records indicating that the plaintiff had two herniated discs and cervical fusion surgery at two levels." The court construes the defendant's argument to allege that the plaintiff's attorney deliberately withheld information before the expiration of the time for the defendant to accept plaintiff's offer of judgment. The defendants claim that the plaintiff's attorney made a "conscious attempt" to work injustice is, in effect, an accusation that the plaintiff's attorney engaged in bad faith in failing to answer defendant's discovery after having filed an offer of judgment. In essence, the defendant argues that the court should imply an exception into § 52-192a, precluding a plaintiff from receiving offer of judgment interest when the plaintiff's attorney acts in bad faith.
Defendant's Motion to Stay and Preclude the Addition of Offer of Judgment Interest, ¶ 22.
Connecticut appellate courts have taken a hard line on attempts to imply exceptions into § 52-192a. The Supreme Court has stated that "[t]he purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources . . . [T]he strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement . . . In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 55-56, 717 A.2d 77 (1998).
Concededly, these statements of purpose and policy undergirding the statute are simply invalid here, where the time to accept the offer of judgment expired long before the defendant was able to determine that the extent of the plaintiff's injuries went far beyond what was stated in the plaintiff's complaint. Only with the benefit of 20/20 hindsight could the plaintiff's offer of settlement be deemed "reasonable." Otherwise, there is nothing reasonable in the way the statute functioned here. What the statute encourages insurers to do in circumstances such as these is "throw in the policy" before knowing much about the case, a consequence that may please some but harms the rest of society that must pay the cost of increased insurance premiums. Insurance being what it is, a spreading of the risk, insurers generally do not pay losses so much as they pass on losses. While it is unlikely that insurers will make Pavlovian payment on receipt of an offer of judgment in the absence of pretrial discovery, the penalty that the statute unreasonably imposes in circumstances such as these will be passed on to the driving public.
Moreover, the Connecticut Law Revision Commission in its 25th Annual Report found, despite the purported purpose and policy of § 52-192a that "the rules for plaintiffs and for defendants concerning offers of judgment do not have any substantial beneficial effect in inducing early settlement or in reducing litigation . . . This experience, that offers of judgment are relatively ineffectual, has been sufficiently universal that some commentators have suggested abolition of Rule 68, the federal version of the rule." Id., 131. In particular, the Commission found "that the interest penalty is unsound. Lack of procedural parity — potentially chilling one party's right to litigate, but not the other's — is disturbing even if it does not violate constitutional due process criteria. The judicial process cannot prejudge a case and should remain procedurally neutral." Id., 132. "In short, while the interest penalty provides what little effectiveness (on behalf of plaintiffs) that the statute has, it lacks a sound rationale." Id., 133.
See Blakeslee Arpaia Chapman, Inc v. EI Constructors, Inc., 239 Conn. 708, 753-59, 687 A.2d 506 (1997); Black v. Goodwin, Loomis Britton, Inc., 239 Conn. 144, 165-66, 681 A.2d 293 (1996). The Supreme Court has not revisited the constitutional issue since the Law Revision Commission's 1999 report.
Nonetheless, "[o]ur courts have consistently held that prejudgment interest is to be awarded by the trial court when a valid offer of judgment is filed by the plaintiff, the offer is rejected by the defendant, and the plaintiff ultimately recovers an amount greater than the offer of judgment after trial . . . Moreover, an award of interest under § 52-192a is mandatory, and the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts . . . The statute is admittedly punitive in nature: . . . It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases." (Internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 321, 823 A.2d 321 (2003).
In Lutynski v. B.B.J. Trucking, Inc., 31 Conn. App. 806, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994), the plaintiff filed a complaint alleging that as a result of the defendant's negligence, "he had been thrown about the interior of the car striking his face and head against the windshield which shattered and he was trapped in his car as it was crushed around him . . . He further alleged that he suffered serious injuries as a result of this collision, including a cerebral concussion, a permanent facial scar and spasmodic muscular contractions along the left side of his face." (Internal quotation marks omitted.) Id., 809. The plaintiff filed an offer of judgment in the amount of $95,000, which the defendant did not accept. Id. After the time for acceptance of the offer expired, the plaintiff was permitted, over the defendant's objection, to amend his complaint to allege "permanent brain damage and an emotional upset . . ." (Internal quotation marks omitted.) Id., 809-10. The court allowed a subsequent amendment to the complaint alleging "an increased risk of future harm that [the plaintiff] has a greater susceptibility to further head injury from trauma which may occur in the future along with accompanying anxiety and fear concerning the future . . ." (Internal quotation marks omitted.) Id., 810. The plaintiff recovered a verdict in excess of his offer of judgment. Id. The trial court declined, however, to award interest pursuant to § 52-192a because the "claim presented to the jury was a different and enhanced claim from that which was the subject matter of the judgment." Id.
The Appellate Court disagreed and reversed the trial court's ruling. "An offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain . . . Obviously, if injuries worsen as time passes, damages will increase, and, if injuries mend, damages will decrease. These are the vagaries of offers of settlement. The fact that the plaintiff amended his complaint to allege `permanent brain damage with an emotional upset' does not make his claim for damages less of a claim underlying his action. There is only one claim underlying the plaintiff's action, although its value may change. [The Appellate Court concluded] that the plaintiff made an offer to settle that claim, including present and future damages arising from injuries known and unknown as of that date." (Citation omitted.) Id., 813-14.
The Appellate Court in Lutynski further noted that "[t]he purpose of § 52-192a is to encourage early, fair, and reasonable settlements, and to encourage plaintiffs to make offers of judgment promptly." Id., 814. This purpose is evidenced by the provision of § 52-192a that any interest due on an offer of judgment "shall be 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. If such offer was filed later than eighteen months from the date of filing of the complaint the interest shall be computed from the date the `offer of judgment' was filed . . ." General Statutes § 52-192a(b) "The purpose of the statute is not to penalize a plaintiff whose monetary claims increase because of worsening of a physical condition by forcing him or her to file another offer of judgment when the change occurs . . . after the filing of the complaint." Lutynski v. B.B.J. Trucking, Inc., supra, 31 Conn. App. 814.
The Supreme Court affirmed the decision of the Appellate Court in Lutynski, per curiam, 229 Conn. 525, 642 A.2d 7 (1994), and subsequently followed Lutynski in Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997), a case involving commercial loss. In Blakeslee, after the offer of judgment was filed, the plaintiff amended its complaint to include a new allegation that altered the conduct underlying the original complaint. Id., 749. In the original complaint, the plaintiff sought to recover ongoing costs under a subcontract for the rental of steel. Id., 711-12. The amended complaint alleged a new breach of the subcontract, and thus, sought to recover the steel's liquidation value. Id., 749-50. The Supreme Court emphasized that the amendment was "not based on the method of compensation sought for the steel, but, rather, on the breach of the subcontract." Id., 751. In determining that the plaintiff's amendment seeking liquidation costs for the new breach of subcontract did not invalidate the offer of judgment, the Supreme Court explained that, "[a]n offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain." (Internal quotation marks omitted.) Id., 750.
Additionally, in Blakeslee, the Supreme Court refused "to carve out an exception to the mandatory nature of § 52-192a"; id., 753; stating: "If this court were to indulge [the defendant's] invitation, however, we would contravene the statute's purpose of encouraging prompt settlements . . . [h]ad the defendant elected to accept the plaintiff's offer of judgment, it would have been insulated from liability for any future damages . . ." Id.
For the court to follow the letter of the statute where a plaintiff's injuries or losses truly worsen during the course of litigation, as in Blakeslee and Lutynski, however, is a far cry from condoning the bad faith suppression of information and documents that a plaintiff has a duty to disclose in order to extract prejudgment interest pursuant to § 52-192a. The Supreme Court, in other contexts, has held that such bad faith manipulation may preclude reliance on the protections of a statute. For example, in Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990); A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990); Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990); and Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990), the Supreme Court recognized that proof of bad faith on the part of the homeowner was an exception to the bar that the Home Improvement Act sets up to the home improvement contractor, precluding him from recovering under a contract due to a violation of the act. "The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act." Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).
"To support the position [the Supreme Court] took in the Barrett Builders line of cases, [the court need look] no further than the maxim that no person may take advantage of his own wrong." Id. "A bad faith exception is designed to prevent a party's disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience." Id., 238. The purpose of § 52-192a would be subverted if a plaintiff was able to attain an award under the statute, while suppressing information to which a defendant is entitled in order to determine whether to make or accept a settlement offer. As repeatedly observed, "[t]he purpose of § 52-192a is to encourage early, fair, and reasonable settlements, and to encourage plaintiffs to make offers of judgment promptly." Lutynski v. B.B.J. Trucking, Inc., supra, 31 Conn. App. 814. Permitting a plaintiff to violate a duty, imposed by our rules of practice, to produce information and documents for which a request has been made in order to claim interest in pretrial negotiations or post-verdict would frustrate the purpose of the statute.
"In the absence of specific legislative indication . . . [the court does] not read [§ 52-192a] to override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct. [The] court never intended to advance the cause of the unscrupulous. [The court] can only presume that the legislature had a similar intent. The question is not whether the legislature specifically carved out this bad faith exception . . . but whether, in the absence of specific legislative indication otherwise, a doctrine founded on public policy and containing a strong strain of estoppel can prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face." Habetz v. Condon, supra, 224 Conn. 239-40.
This court need not determine, however, whether there is a bad faith exception to § 52-192a as there was to the Home Improvement Act. The time for the defendant to accept the plaintiff's offer of judgment expired on December 16, 2000. By that time, the defendant had neither filed discovery requests, objected to the plaintiff's offer of judgment, nor moved for an extension of time to accept that offer. Essentially, then, the defendant's claim for relief boils down to an argument that for the first three months that this action was pending, the plaintiff deliberately under pleaded her action in order to lull the defendant into a false sense that the plaintiff's injuries did not warrant accepting her $20,000 offer of judgment. While the plaintiff's attorney did have the information concerning the plaintiff's herniated discs for some period of time prior to December 16, 2000, as evidenced by his filing a request for leave to amend to include such allegations on December 15, 2000, there is insufficient evidence that the plaintiff's attorney had this information substantially earlier in order for the court to infer that the plaintiff's attorney harbored the Machiavellian motive that the defendant ascribes to him.
In 1993, the General Assembly amended § 20-429 of the Home Improvement Act to provide: "Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery."
The defendant's motion does not require the court to determine whether a court could have sustained such an objection or extended the time for the defendant to accept the plaintiff's offer of judgment.
Thus, the subsequent six-month delay in the plaintiff's answering the defendant's discovery requests is of little moment. Section 52-192a prescribes the procedural steps that a plaintiff and defendant must follow in making and accepting an offer of judgment. When the plaintiff made the offer of judgment to the defendant, this was an offer of settlement, as Lutynski and Blakeslee observe, to settle all damages, present or future, and whether or not the true extent of the damages are known. After December 16, 2000, the defendant was deemed, by operation of § 52-192a, to have rejected the plaintiff's offer; Shawhan v. Langley, 249 Conn. 339, 342, 732 A.2d 170 (1999); and the offer was not subject to acceptance unless refiled, which it was not.
The defendant's motion to stay and preclude interest is denied.
II
The plaintiff has filed an itemized bill of costs totaling $8,887.65. The defendant objects to several items.
"The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute . . . Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them." (Citation omitted; internal quotation marks omitted.) Davis v. Westport, 61 Conn. App. 834, 853-54, 767 A.2d 1237 (2001). The statute that governs here is General Statutes § 52-257.
The plaintiff seeks costs of $200 for the trial of an issue of law or fact. The statute allows such an award "in difficult or extraordinary cases . . . where a defense has been interposed . . ." General Statutes § 52-257(a)(3). The defendant objects, stating: "This was a simple, straight forward motor vehicle accident case with two days of evidence and one half day of closing arguments. This did not constitute a difficult or extraordinary case which would warrant such a fee." The plaintiff rejoins that "from the voluminous pleadings the subject case should be classified as `difficult and extraordinary.'" While the plaintiff's position has some support in Hartzell v. Acme Wire Co., 5 Conn. Sup. 330, 331 (1937), the court agrees with the defendant.
Defendant's Objection to Bill of Costs, ¶ 1.
Plaintiff's Reply to Defendant's Objection to Bill of Costs, ¶ 1.
The defendant objects to four marshal's bills, which were not attached to the bill of costs. The bills have now been produced. They are for original service of process or for subpoenas served on witnesses who did testify. The objection is overruled.
The plaintiff seeks $300 for a medical report written by Dr. William Lewis and admitted into evidence. The defendant objects on the basis that such an item of costs is not authorized by statute. The plaintiff relies on the provision in § 52-257(b)(6) authorizing costs "for copies of records used in evidence, bonds, recognizances and subpoenas, court or clerks fees . . ."
A distinction must be made between records and reports. See General Statutes § 52-174. Not every observation or opinion placed on paper becomes elevated to the status of a report. Cf. State v. White, 169 Conn. 223, 236, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). A medical report that is generated upon request of counsel and for litigation is not a record within the meaning of § 52-257(b)(6). Such a report is a substitute for live testimony. Notably, the other items in § 52-257(b)(6) are not items of this nature. "If two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phases under the doctrine of noscitur a sociis . . ." (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 33, 699 A.2d 101 (1997). The objection is sustained.
The plaintiff seeks costs for the videotaping and courtroom playback of the medical witness's deposition. The defendant conditionally objected since the bills were not produced for the defendant's review. The bills have now been produced. Costs are authorized pursuant to § 52-257(b)(12).
General Statutes § 52-257(b)(12) provide in pertinent part: "for the recording, videotaping, transcribing and presentation of the deposition of a practitioner of the healing arts . . . dentist, registered nurse, advanced practice registered or licensed practical nurse . . . that is used in lieu of live testimony in the civil action . . ."
The plaintiff seeks costs of $148.42 for photographic enlargements. The defendant contends that such an expense is not taxable. Such an item is fairly within the ambit of § 52-257(b)(5) ("maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action . . ." [Emphasis added.]). See also Grenier v. Rossi, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 0509702 (October 27, 1994); Ahern v. Moskovitz, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 86 0313898, 2 Conn. L. Rptr. 471 (September 26, 1990, Maloney, J.).
Finally, the plaintiff seeks $374.18 for the cost of transcribing the video deposition of Dr. Mastroianni. The video was played at trial. The defendant objects because the amount of the bill is not documented, but the defendant states in his objection that if he "receives the bill from the plaintiff, the defendant will withdraw this objection." The bill has been produced and is annexed to the plaintiff's reply to defendant's objection. The court, therefore, deems the objection withdrawn.
Defendant's Objection to Bill of Costs, ¶ 10.
III
Pursuant to General Statutes § 52-225a, the defendant has moved for a reduction in the award of economic damages.
General Statutes § 52-225a provides:
(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, 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, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant's economic damages attributable to his percentage of negligence pursuant to section 52-572h.
(b) Upon 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.
(c) The 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.
At trial, the plaintiff submitted medical bills totaling $64,665.65. In light of the jury's award of economic damages in the amount of $72,756.55, the defendant concedes that "[i]t appears that the jury awarded all of the plaintiff's claimed medical bills." However, the plaintiff's health insurer paid only $13,164.22 to satisfy these bills. The plaintiff does not claim that the insurer has a right of subrogation, which would extinguish the defendant's right to reduce the verdict by these payments, pursuant to § 52-225a(a). However, the amount of $13,164.22 is reduced by 23 percent, the percentage of contributory negligence that the jury ascribed to the plaintiff. See General Statutes § 52-225a(a). This reduces the figure by $3,027.77 to $10,136.45.
Defendant's Memorandum of Law in Support of Defendant's Motion to Reduce the Plaintiff's Economic Damages By Applicable Collateral Sources, p. 1.
Moreover, this reduced figure is completely offset by the cost expended to secure the insurance for the plaintiff. See General Statutes § 52-225a(c); Alvarado v. Black, 248 Conn. 409, 728 A.2d 500 (1999). The accident occurred on July 30, 2000. The plaintiff was treated in calendar years 2000, 2001 and 2002 for her injuries. Between July 30, 2000, through calendar year of 2002, the plaintiff's employer, Cambridge Manor, paid $16,506.03 for the plaintiff's insurance premiums. In addition, the plaintiff herself paid insurance premiums between July 30, 2000, and December 30, 2002, totaling $1,260.00. The total premium payments, therefore, from the plaintiff and her employer was $17,766.03. This completely offsets the collateral source payments of the plaintiff's health insurer after reduction for the plaintiff's contributory negligence.
The defendant argues that in order to prevent the plaintiff from enjoying a windfall double recovery from health "insurance write-offs," as the defendant characterizes them, the plaintiff should be precluded from recovering damages that include the amount of the write-offs. The defendant argues that the common-law collateral source rule does not permit the plaintiff to recover write-offs, and, such amounts represent charges that were not truly incurred. The defendant also argues that the plaintiff's health insurer should be deemed to have paid the entire amount of her bills, since the insurer's payment discharged the total amount. Furthermore, the defendant argues that these write-offs should be considered collateral sources, which should be deducted from the amount of economic damages.
Before addressing the defendant's arguments, the court sets forth the statutory framework governing the award of economic damages and collateral source deductions. "Section 52-225a(a), which sets forth the statutory scheme relating to the calculation of collateral source reductions, provides in relevant part that `[i]n any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages . . . 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 . . .' Thus, under § 52-225a(a), calculation of the collateral source reduction is a two part process: (1) the total amount of collateral source benefits a claimant has received is determined in accordance with § 52-225a(b); and (2) that amount is then decreased, pursuant to § 52-225a(c), by the total amount that has been `paid, contributed, or forfeited . . . by, or on behalf of, the claimant or members of his immediate family' to secure those benefits." (Emphasis in original.) Alvarado v. Black, supra, 248 Conn. 413.
Section 52-225a(b) sets forth the manner in which the total amount of collateral source benefits a claimant has received is to be determined. Section 52-225a(b) provides in relevant part that "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." Section 52-225b defines collateral sources as "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." Section 52-225a(b) also provides that "`[c]ollateral sources' do not include amounts received by a claimant as a settlement." Citing a number of cases from other jurisdictions, the defendant argues that "states which have the common law collateral source rule which allow the plaintiff a double recovery for medical bills in a tort case preclude plaintiffs from recovering `write-offs' since such charges are illusory and are never really incurred." This court is not persuaded.
Defendant's Memorandum of Law in Support of Defendant's Motion to Reduce the Plaintiff's Economic Damages By Applicable Collateral Sources, p. 8.
"Prior to the enactment of § 52-225a in 1985, Connecticut adhered to the common-law collateral source rule, which provides that a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him . . . The basis for [such a] rule is that a wrongdoer shall not benefit from a windfall from an outside source . . . In 1985, however, the legislature by enacting Public Acts 1985, No. 85-574 (P.A. 85-574), abolished the common-law collateral source rule in medical malpractice actions. Public Act 85-574 . . . was codified as § 52-225a . . . In 1986 . . . § 52-225a was extended by No. 86-338, § 4, of the 1986 Public Acts to abolish the common-law collateral source rule in all personal injury actions . . . [The purpose behind the enactment of the statute was] to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments. See 28 H.R.Proc., Pt. 27, 1985 Sess., p. 9820, remarks of Representative Morag L. Vance; id., p. 9834, remarks of Representative Joseph D. Nardini; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1985 Sess., p. 1909, remarks of Senator Richard B. Johnston; 29 S.Proc., Pt. 10, 1986 Sess., p. 3442, remarks of Senator Johnston; 29 H.R.Proc., Pt. 22, 1986 Sess., pp. 8074-76, remarks of Representative Robert G. Jaekle." (Internal quotation marks omitted.) Jones v. Riley, 263 Conn. 93, 102-03, 818 A.2d 749 (2003), quoting Alvarado v. Black, supra, 248 Conn. 416-18.
In Roth v. Chatlos, 97 Conn. 282, 116 A. 332 (1922), decided prior to the enactment of § 52-225a, the defendant complained on appeal that the trial court excluded evidence that the plaintiff, who was injured through his negligence, was insured. The Supreme Court found no error, stating "[t]he authorities, both numerically and in weight agree that a defendant owes to the injured compensation for injuries the proximate cause of which was his own negligence, and that their payment by third parties cannot relieve him of this obligation; and that whether the motive impelling their payment be affection, philanthropy, or contract, the injured is the beneficiary of their bounty and not him who caused the injury. In short, the defendant has no equitable or legal claim to share in the amount paid for the plaintiff. The rule in a majority of the cases is that an injured person is entitled to recover, as damages, for reasonable medical, hospital, or nursing services rendered him, whether these were rendered him gratuitously, or paid for by his employer. Such service or such payment is for the benefit of the injured person. It is a gift to him. But since it is one of the elements of injury, he is entitled to recover the reasonable value of the service." Id., 287-88. There is little difference between medical services gratuitously rendered to a plaintiff and medical services for which a bill has been sent but later forgiven in part after partial payment.
Moreover, the defendant's claim that write-offs were not protected by the collateral source rule is untimely made. Under General Statutes § 52-572h, economic damages are determined at trial by the trier, here, the jury. The jury found that the plaintiff's economic damages were $72,756.55. At trial, the defendant neither objected to the medical bills, offered evidence that the amount was otherwise, nor claimed that those amounts were not recoverable by the plaintiff as a matter of law. The court cannot retry the amount of economic damages now. Rather, in the absence of any claim that it erred in its evidentiary rulings during the trial or in its charge to the jury, the court can now only make the collateral source reductions authorized by § 52-225a. The statutes do not authorize a reduction in damages for a health care provider's write-offs. Despite sweeping language in appellate decisions that the legislature in 1985 and 1986 abolished the common-law collateral source rule; Alvarado v. Black, supra, 248 Conn. 416-18; Jones v. Riley, supra, 263 Conn. 102; General Statutes § 52-225a authorizes a reduction in damages only for those "collateral sources" defined in § 52-225b, and the definition of collateral sources in § 52-225b does not include write-offs by health care providers. To the extent that the cases of Gosney v. Chavest, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 98 0064585 (June 27, 2002) ( 32 Conn. L. Rptr. 409) and Sharron v. USAA Casualty Insurance Co., Superior Court, judicial district of New Britain, Docket No. CV 97 0478881 (August 18, 1998) ( 22 Conn. L. Rptr. 586), hold otherwise, this court does not find them persuasive.
Even if it were argued that Roth v. Chatlos, supra, 97 Conn. 282, barred the introduction of such evidence, Rule 3.1 of the Rules of Professional Conduct does not forbid a lawyer from seeking the introduction of such evidence where "there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." As the defendant observes: "In 1986 . . . § 52-225a was extended by No. 86-338; § 4, of the 1986 Public Acts to abolish the common-law collateral source rule in all personal injury actions . . . [The purpose behind the enactment of the statute] was . . . 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 v. Riley, supra, 263 Conn. 103. "The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that tie judicial machinery should not be engaged in shifting a loss in order to create such an economic waste." Mack v. LaValley, 55 Conn. App. 150, 169, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999), quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 23-24, 699 A.2d 964 (1997).
The defendant also argues that while the plaintiff's health insurer paid only $13,164.22 to the plaintiff's health care providers, that payment discharged $64,665.65 in medical bills. The defendant argues, therefore, that the collateral source "payment" should be deemed to be the amount discharged, $64,665.65. In support of his argument, the defendant cites the definition of payment in Black's Law Dictionary as "[t]he fulfillment of a promise, or the performance of an agreement. A discharge of an obligation or debt and part payment, if accepted, is a discharge pro tanto.
"In a more restricted legal sense payment is the performance of a duty, promise, or obligation, or discharge of a debt or liability, by the delivery of money or other value by a debtor to creditor, where the money or other valuable thing is tendered and accepted as extinguishing debt or obligation in whole or in part." Black's Law Dictionary (5th Ed. 1983).
For several reasons, the defendant's argument is without merit. First, the defendant's claim is not supported by the evidence in the record. There is no evidence that the plaintiff's health care providers chose not to pursue the plaintiff for the balance owed to them because of or in consideration of payments made by the plaintiff's insurer.
Second, the defendant's argument is not supported by a fair reading of § 52-225a. The matter of economic damages and collateral source deductions from such damages is governed by statute. The defendant's argument, therefore, requires the court to assess the proper meaning of the applicable statutes. This is a matter of statutory construction. State v. Vickers, 260 Conn. 219, 224, 796 A.2d 502 (2002); Lundgren v. Stratford, 12 Conn. App. 138, 142, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987); Kellems v. Brown, 163 Conn. 478, 505-06, 313 A.2d 53; appeal dismissed, 409 U.S. 1099, 93 S.Ct., 34 L.Ed.2d 678 (1972). "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." Public Act No. 03-154.
The text of § 52-225a(a) provides that the first step in the collateral source algorithm is that "the court shall reduce the amount of such award [of total damages] which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section . . ." (Emphasis added.). General Statutes § 52-225a(b) provides: "Upon 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." (Emphasis added.)
The defendant's argument focuses on the word "paid." The word "paid," as employed by § 52-225a, is not defined in the General Statutes. "We therefore look to the common understanding of the term as expressed in the dictionary." Bock Clark Corp. v. Dept. of Consumer Protection, 265 Conn. 400, 411, 828 A.2d 601 (2003); see General Statutes § 1-1(a). The dictionaries to which courts look for common understanding, moreover, are lay dictionaries, rather than Black's Law Dictionary, which contains definitions of words that have attained a technical definition in the law. See State v. Salmon, 250 Conn. 147, 154, 735 A.2d 333 (1999); Strom v. Curtiss, Superior Court, judicial district of Middlesex at Middletown, No CV 00 0092123 (November 8, 2002); see also Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 169, 1 Cal.Rptr.3d 536, cert. denied, 2003 Cal. LEXIS 7451 (2003). "Paid" is the past tense of the verb "pay." To "pay" is defined by the Merriam-Webster Dictionary as "to make due return to for services rendered," "to give in return for goods or services," "to discharge indebtedness," "to give or forfeit," or "to give, offer, or make freely or as fitting." Similarly, the American Heritage Dictionary defines "pay" as "[t]o give money to in return for goods or services rendered," "[t]o give (money) in exchange for goods or services," or "[t]o yield as a return."
"`To pay' means primarily to transfer or deliver money or other agreed medium from the debtor to the creditor; and while the word `payment' is often used merely to signify satisfaction or discharge of an obligation by any means . . . that is a secondary and somewhat loose use of the term. Payment, of course, works satisfaction of an obligation; but the two are not equivalents, for satisfaction and discharge may be accomplished without payment." Oneida County v. Tibbetts, 125 Wis. 9, 15, 102 N.W. 897 (1905).
The amount paid by the plaintiff's health insurer was the amount given by the plaintiff's health insurer to her health care providers, and did not include the amount the health care providers opted to "write-off."
The defendant's motion for stay and to preclude offer of judgment interest, his motion for reduction of the verdict due to collateral source payment and his motion in arrest of judgment are denied. Judgment may enter for the plaintiff in the amount of $287,022 plus interest pursuant to her offer of judgment in the amount of $110,216.65 together with $8,587.65 in taxable costs.
By the Court.
BRUCE L. LEVIN, JUDGE OF THE SUPERIOR COURT.