Opinion
HHDCV146051838S HHDCV146051842S HHDCV146051843S
08-24-2018
Scott MENARD et al. v. STATE of Connecticut
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
In April and May 2018, the parties presented evidence at a bench trial in these cases concerning underinsured motorist claims, which were consolidated for trial. At trial, the court heard testimony from witnesses and received numerous exhibits pursuant to a briefing schedule, in lieu of oral argument, the parties filed memoranda of law, dated May 30, 2018.
After consideration, the court issues this memorandum of decision.
I
Background
In their complaints, the plaintiffs allege that on September 1, 2012, they were on duty as Connecticut State Troopers with the Connecticut State Police. At approximately 1:40 a.m., plaintiff Connolly was on patrol on Interstate 84 and pulled over a vehicle traveling westbound, due to suspected intoxicated driving, at Exit 46 in Hartford, the Sisson Avenue exit. After reaching the bottom of the exit ramp, Connolly parked his cruiser on the right side of the exit, under the directional sign, to the rear of the vehicle, which had stopped before the intersection with Sisson Avenue. The Sisson Avenue exit has four lanes at this point.
Connolly exited his cruiser to speak with the driver of the vehicle and then returned to his cruiser. Plaintiff Menard drove up to the scene also, parked his police cruiser and also exited to speak with the occupants of the vehicle which plaintiff Connolly had pulled over. Both cruisers had their lights activated.
Connolly and Menard then began to approach the vehicle. Unbeknownst to Connolly and Menard, plaintiff Zdrojeski also responded to the scene in his police cruiser. He parked his cruiser to the rear and left of Connolly’s cruiser, and to the left of Menard’s cruiser, in the right center travel lane, also with lights activated. Just after Zdrojeski arrived, another vehicle, driven by non-party William Bowers, struck Zdrojeski’s cruiser from behind, sending Zdrojeski’s parked cruiser forward toward Connolly and Menard, where physical contact occurred.
Menard attempted to jump clear of the cruiser, tumbled in the air, and came down on his head between Zdrojeski’s cruiser and the stopped vehicle. Connolly pushed himself away from the cruiser, using his right arm against the hood of the cruiser. At the time of the impact, Zdrojeski had not gotten out of his cruiser. All three plaintiffs were ambulatory after the accident and were transported by ambulance to Hartford Hospital.
In their complaints, paragraphs 11-12, the plaintiffs allege that underinsured motorist coverage afforded to them is provided pursuant to the collective bargaining agreement between the Connecticut State Police Union and the State, and that the coverage is provided by way of self-insured coverage. The State admits that it provides underinsured motorist coverage for state troopers who are parties to the collective bargaining agreement and that it is self-insured.
Each of the plaintiffs alleges that they suffered personal injuries, and lost earning capacity, and incurred medical expenses as a result of the accident. Each also alleges that they suffer from post-traumatic stress disorder (PTSD).
In its special defenses in each case, the State asserts that each plaintiff’s recovery, if any, is limited to the $1,000,000.00 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 amount of coverage was not disputed. At trial the parties agreed that, after receiving the court’s decision, they would account for items of economic damages which have been paid and for medical expense discounts.
The State also asserts a special defense as to the claims of plaintiff Zdrojeski, alleging that he was negligent, in that the positioning of his vehicle in the right center travel lane created a hazardous condition by obstructing traffic. Additional references to the factual background are set forth below.
II
Discussion
In a case tried to the court, "[t]he ... judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153 A.3d 1264 (2017). "[I]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony." (Internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 708, 138 A.3d 868 (2016).
A
Negligence
The Supreme Court discussed apportionment and uninsured motorist coverage in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 737-38, 778 A.2d 899 (2001), stating, "We recognize that the damages sustained by a claimant may be caused by the negligence of more than one tortfeasor under § 52-572h. Also, it is important to note that the purpose of § 52-572h was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages for which he was responsible ..." (Footnote omitted.) There, the complaint alleged that a multicar accident was caused both by the negligence of an unidentified hit-and-run driver, whose vehicle struck another vehicle, and by the driver of that vehicle, which rear-ended the plaintiff’s vehicle. See id., 738-39.
General Statutes § 52-572h(c) provides, in relevant part: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages ..."
The plaintiff in Collins argued that apportionment was not required because her claim against her uninsured motorist carrier was based on contract, not negligence. "The uninsured motorist statutes and regulations incorporate the negligence law of liability and damages involving claims where joint tortfeasors are present." Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 741. The Supreme Court concluded that "the legislature, in enacting § § 52-572h and 38a-336, did not intend to create a separate law of damages for uninsured motorist claims different from that which exists for traditional negligence awards. An insured, therefore, is ‘legally entitled to recover as damages’ under [Regulations of Connecticut State Agencies] § 38a-334-6(a), her damages after they are properly apportioned pursuant to the dictates of § 52-572h." (Footnote omitted.) Id., 742.
There, even though the carrier was acting as the surrogate for the unidentified driver and "was brought into the litigation solely to litigate the blameworthiness of the unidentified driver," (emphasis in original), id., 743, the surrogate analysis was "extended to apportionment principles ..." Id., 744. The court found that the jury should have been instructed on apportionment of responsibility between the driver of the middle car and the unidentified driver so that it could assess the "percentage of negligence and portion of liability for which the remaining defendant [was] responsible." Id.
Here, multiple individuals and vehicles were involved in the accident. As the factfinder, the court may consider the negligence, if any, of the various individuals involved in assessing the percentage of negligence and portion of liability for which the State is responsible as the self-insured underinsured motorist coverage provider. See Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 744.
After consideration, the court finds that the plaintiffs have proved that the accident was caused by the negligence of non-party William Bowers, who failed to stop or avoid colliding with a stopped police cruiser which had illuminated lights. In view of the sight lines which existed and the distance from the bottom of the exit ramp to where Zdrojeski’s cruiser was positioned, Bowers ought to have been able to avoid striking the cruiser. The State has not proved that Zdrojeski was negligent.
Likewise, both Connolly and Menard had left their cruisers with the lights on. Their conduct, in approaching the stopped vehicle from the driver’s side, has not been shown to amount to negligence. To the extent of that Bowers was underinsured, the State is contractually responsible to provide coverage for damages caused by the underinsured driver.
B
Damages for PTSD Claims
The State argues that damages may not be awarded for the plaintiffs’ emotional distress claims, which, as discussed above, are premised on their PTSD claims, since coverage is afforded for damages claims because of bodily injury only, not for claims based on emotional distress.
In their complaints, paragraph 14, the plaintiffs allege that the defendant is required to provide underinsured motorist coverage in accordance with General Statutes § 38a-336. Section 38a-336 provides, in relevant part, "(a)(1)(A) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, ... for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury, including death resulting therefrom, from owners or operators of uninsured motor vehicles and underinsured motor vehicles[.]" (Emphasis added.)
"In determining the meaning of a statute, we look first to the text of the statute and its relationship to other statutes. General Statues § 1-2z. If the text of the statute is not plain and unambiguous, we may consider extratextual sources of information such as the statute’s 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 ... Our fundamental objective is to ascertain the legislature’s intent." (Footnote omitted.) Doe v. Town of W. Hartford, 328 Conn. 172, 181-82, 177 A.3d 1128 (2018). "In the absence of a statutory definition, words and phrases in a particular statute are to be construed according to their common usage ... To ascertain that usage, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Picco v. Town of Voluntown, 295 Conn. 141, 148, 989 A.2d 593 (2010).
While the terms of Section 38a-336 are plain and unambiguous, the statute does not define the term "bodily injury." The Supreme Court has discussed the meaning of "bodily injury" in several decisions. As the Supreme Court explained in Taylor v. Mucci, 288 Conn. 379, 385-86, 952 A.2d 776 (2008), in discussing underinsured motorist coverage, "emotional distress, without accompanying physical harm, does not constitute a ‘bodily injury.’ " See Galgano v. Metro. Prop. & Cas. Ins. Co., 267 Conn. 512, 522, 838 A.2d 993 (2004), noting that the "majority of jurisdictions that have considered [the] issue have held that bodily injury encompasses only physical harm ..." In Galgano, the Supreme Court cited McNeill v. Metro. Prop. & Liab. Ins. Co., 420 Mass. 587, 590, 650 N.E.2d 793 (1995), where the Massachusetts Supreme Court explained, "The plaintiff’s physical ailments do not warrant a separate ‘per person’ limit. While they may constitute ‘bodily injury,’ they are the result of the plaintiff’s emotional distress, not its cause. The plaintiff’s argument that his emotional distress was a bodily injury received in the accident is flawed because emotional distress is not a bodily injury."
To ascertain the meaning of "bodily injury" in the context of insurance policy language, the Supreme Court has referred to dictionary definitions: "[T]he word bodily as ordinarily used in the English language strongly suggests something physical and corporeal, as opposed to something purely emotional. Webster’s Third New International Dictionary confirms this notion, and associates the term bodily with the physical aspects of the human body, and contrasts it with the nonphysical aspects of the human experience such as the mental and spiritual. In the insurance policy, the word bodily is used as an adjective to modify the terms injury, harm, sickness and disease. Including purely emotional harm arising out of economic loss as a form of bodily injury would be tantamount to defining the term bodily injury with an antonym. At the very least, such a construction would render the term bodily superfluous as an adjective modifying the term injury. It is fair to infer that the use of the term bodily was employed in the policy both accurately and purposefully." (Footnote omitted.) Moore v. Cont’l Cas. Co., 252 Conn. 405, 410-11, 746 A.2d 1252 (2000).
Similarly, in accordance with the principles of statutory interpretation, the court must give meaning to this term as used by the Legislature in § 38a-336. "[B]ecause [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted). Dattco, Inc. v. Comm’r of Transportation, 324 Conn. 39, 49, 151 A.3d 823, 829 (2016).
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).
In addition, the three plaintiffs rely on the diagnosis of their therapist, Jennifer Honen, M.A., L.P.C., that each met the criteria for having PTSD. In her testimony, Honen acknowledged that she did no screening to assess the validity of their statements concerning their claims of emotional distress. Rather, she accepted their statements without making an independent assessment. The court does not credit her testimony or her diagnosis.
C
Bodily Injury Claims
1. Plaintiff Menard
Menard claims injuries to his head, neck, shoulder, lower back, left knee, and left elbow. He asserts that he continues to suffer from low back pain, shoulder pain and occasional neck pain. He was assigned a 10% permanent partial impairment rating to his low back, a 5% permanent partial impairment rating to his neck, and a 5% permanent partial impairment rating to his head. After returning to work, he continued as a state trooper, then retired and became employed as a police officer for the Town of East Granby, Connecticut. At the time of trial, he was continuing to work in that capacity. He claims that he retired as a state trooper due to PTSD. He has worked as either a state trooper or town police officer since he returned to work in 2013.
The parties stipulated that Menard had lost wages in the amount of $43,218.63, and lost overtime in the amount of $11,839.68.
Of his claimed medical expenses of $66,266.09, for the reasons explained above, the amounts claimed for treatment of PTSD by Jennifer Honen, $9,359.00, may not be awarded. Of the remainder, $33,731.00 was billed by Dr. Kevin Sadowski for chiropractic treatment over more than four years. In his testimony, Dr. Sadowski acknowledged that he may have treated Menard hundreds of times, including after workers’ compensation payments for such treatment ended. Dr. Clinton A. Jambor, an orthopedist, evaluated Menard at an independent medical evaluation in February 2013. See Plaintiff’s Exhibit 10. In his report, he noted that Menard had responded well to physical therapy and stated that he thought Menard would benefit from 12 visits of either chiropractic care or physical therapy, not hundreds.
In an April 2014 report, Dr. Charles B. Kime, an orthopedist, stated that Menard was technically a candidate for possible surgical treatment, such as a laminectomy. At trial, Menard testified that he would like to avoid having surgery. At the time of trial, more than five and a half years had passed since the date of the accident and no plan for surgery was in place. In addition, he has not had chiropractic treatment since he was last seen by Dr. Sadowski in February 2017.
The court declines to award future economic damages for future surgery or future medical treatment related to his shoulder as these claims are too speculative in nature. No amount is awarded for future economic damages as the court is not persuaded that future economic damages are warranted.
As to economic damages, the court awards the stipulated amounts for lost wages and lost overtime and $56,907.09 for medical expenses. In addition, noneconomic damages are awarded in the amount of $60,000.00.
2. Plaintiff Connolly
Plaintiff Connolly claims injuries to his right hand, wrist and arm, right thigh, neck and back. His medical treatment included neurolysis and translocation of the ulnar nerve of his right elbow in 2013. He asserts that he continues to suffer from nerve damage and from neck stiffness and back pain.
He was assigned a 12% permanent partial impairment rating to his right upper extremity, a 5% permanent partial impairment rating to his neck, and a 10% permanent partial impairment rating to his back.
The parties stipulated that Connolly had lost wages in the amount of $53,144.43, and lost overtime in the amount of $27,409.00. As to future medical treatment, while Dr. Kime discussed a disc replacement with him in February 2015 (see Plaintiff’s Exhibit 24), surgery has not occurred. The court declines to award future economic damages for this possibility as this claim is too speculative in nature. No amount is awarded for future economic damages as the court is not persuaded that future economic damages are warranted.
For the reasons explained above, the amounts claimed for treatment of PTSD by Jennifer Honen, M.A., L.P.C., $2,428.00, may not be awarded. Connolly has had no medical treatment for the claimed injuries since 2013. He returned to work as a state trooper in July 2013 and has continued to be employed there in the same assignment since that time.
As to economic damages, the court awards the stipulated amounts for lost wages and lost overtime and $36,185.24 for medical expenses. Noneconomic damages are awarded in the amount of $70,000.00.
3. Plaintiff Zdrojeski
As a result of falling on ice in 2011, plaintiff Zdrojeski testified that he had a prior cervical injury and then had a diskectomy with fusion surgery in 2011, resulting in a 43% permanent partial disability rating and being out of work for about six months. He was evaluated in July 2012, about two months before the subject accident, and complained of numbness in the first two fingers of his right hand and posterior cervical headaches. See Defendant’s Exhibit H.
He also had a subsequent motor vehicle accident in 2014 which aggravated injuries which he suffered in the 2012 accident which is the subject of this matter.
After the subject accident, at Hartford Hospital, Zdrojeski complained of right knee pain, left shoulder pain, arm numbness, disorientation, and general soreness. See Plaintiff’s Exhibit 38 (hospital records). Loss of consciousness was not reported. Subsequent evaluation diagnosed a concussion. He also suffered from back spasms. An MRI showed a possible partial rotator cuff tear. He testified to continuing neck pain and low back pain. In an independent medical examination report (Plaintiff’s Exhibit 48), dated December 18, 2012, Dr. Jambor noted a current diagnosis of cervical and thoracic sprain, and right shoulder sprain/partial rotator cuff tear.
The parties stipulated that Zdrojeski had lost wages in the amount of $23,859.01, and lost overtime in the amount of $9,128.80. For the reasons explained above, the amounts claimed for treatment of PTSD by Jennifer Honen, M.A., L.P.C., $1,716.00, may not be awarded. He has had no medical treatment since 2014 for injuries claimed as a result of the subject accident. He returned to work as a state trooper in April 2013 and has continued to be employed there in the same assignment since that time.
As to future medical treatment, while Dr. Daniel M. Veltri stated in January 2013 that, if Zdrojeski had ongoing pain in his shoulder, he should consider arthroscopic decompression and rotator cuff repair (see Plaintiff’s Exhibit 45), surgery has not occurred. Zdrojeski testified that he has not returned to see Dr. Veltri. The court declines to award future economic damages for this possibility as this claim is too speculative in nature. No amount is awarded for future economic damages as the court is not persuaded that future economic damages are warranted. As to economic damages, the court awards the stipulated amounts for lost wages and lost overtime and $23,548.79 for medical expenses. Noneconomic damages are awarded in the amount of $30,000.00.
CONCLUSION
In accordance with the parties’ agreement, discussed above, that after receiving the court’s decision, they would account for items of economic damages which have been paid and for medical expense discounts, the parties are directed to file a stipulation relating thereto. The stipulation is to be filed by September 24, 2018, with a Chambers copy mailed to the undersigned, after which the court will issue an order entering judgment.