Opinion
No. HHB CV 05 5000530 S
September 21, 2007
MEMORANDUM OF DECISION ON OBJECTION TO OFFER OF JUDGMENT AND MOTION FOR EXTENSION OF TIME TO RESPOND TO OFFER OF JUDGMENT
The defendant Ovelto W. Ciccarelli, M.D.'s objection to offer of judgment (#116) and his motion for extension of time to respond to the plaintiff's offer of judgment (#117), appeared as non-arguable matters on the short calendar for July 23, 2007. After considering the parties' written submissions, the court issues this memorandum of decision. For the reasons set forth below, the objection is overruled and the motion is denied.
For ease of reference, the court refers to Ciccarelli as the defendant.
I BACKGROUND
This matter involves allegations of medical malpractice by the plaintiff, Rae Ann Prims, against the defendant. In the first count of her complaint, the return date of which was December 20, 2005, the plaintiff alleges that the defendant, a physician and surgeon, operated on the plaintiff on October 24, 2003, for the purpose of excision of a sebaceous cyst on the right side of her neck. She alleges that, during the course of this surgery, the defendant cut, ligated or otherwise injured her spinal accessory nerve on the right. She further alleges that, in doing so, the defendant was negligent and committed medical malpractice in one or more ways.
The plaintiff claims that, as a result, she sustained severe, painful, and permanent injuries. She also claims to have incurred medical expenses and to have lost income, and that her earning capacity has been impaired.
In his answer (#108), the defendant denies the plaintiff's allegations of negligence and medical malpractice. Pursuant to a scheduling order to which the parties agreed on April 6, 2007, this matter is scheduled for the commencement of jury selection on March 6, 2008.
On May 24, 2007, the plaintiff filed an offer of judgment (#115), in which she offered to stipulate to a judgment against the defendant in the amount of $450,000.00. The defendant filed an objection to the offer of judgment (#116) (objection) on June 8, 2007, claiming that the offer of judgment did not comply with Practice Book § 17-14A, which pertains to an offer of compromise filed pursuant to Practice Book § 17-14. On the same date, the defendant filed a motion for extension of time (#117) (motion for extension), in which he requests, in the event that the court overrules his objection, an extension of time to respond to the plaintiff's offer of judgment.
Practice Book § 17-14A, concerning the alleged negligence of a health care provider, provides: "[i]n the case of any action to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based. At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care. The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages."
Practice Book § 17-14, concerning an offer of compromise by the plaintiff, provides: "[a]fter 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 earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before the commencement of jury selection in a jury trial or the commencement of evidence in a court trial, file with the clerk of the court a written offer of compromise 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 for a sum certain. The plaintiff shall give notice of such offer of compromise to the defendant's attorney, or if the defendant is not represented by an attorney, to the defendant."
On June 22, 2007, the plaintiff filed her reply to objection to offer of judgment (#118), asserting that, pursuant to Public Act 06-40, now General Statutes § 52-192b, the offer of judgment provisions of former General Statutes § 52-192a, revised to January 1, 2005, continue to apply actions, such as her cause of action against the defendant, which accrued before October 1, 2005, and that she was not required to comply with the Practice Book provisions concerning an offer of compromise. Also on June 22, 2007, the plaintiff filed her objection to motion for extension of time in which to respond to offer of judgment (#119), in which she contends that the court does not have the discretion to grant an extension of time to respond to an offer of judgment.
Section 52-192b provides, "Sections 52-192a to 52-195, inclusive, of the general statutes, revision of 1958, revised to January 1, 2005, shall be applicable to any cause of action accruing prior to October 1, 2005."
General Statutes § 52-192a(a), revised to January 1, 2005, provided, in pertinent part: "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. 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.' Upon such filing, the clerk shall enter judgment immediately on the stipulation. 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. Any such `offer of judgment' and any `acceptance of offer of judgment' shall be included by the clerk in the record of the case."
General Statutes § 52-192a(b), revised to January 1, 2005, provided, in pertinent part: "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve percent annual interest on said amount . . . In those actions commenced on or after October 1, 1981, the interest 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 . . ."
On July 23, 2007, the date that the objection and motion for extension appeared on the short calendar, the defendant filed a sur-reply to the plaintiff's reply to objection to offer of judgment. In his sur-reply, page 2, the defendant contends, for the first time, that the continued viability of former § 52-192a's offer of judgment is "vulnerable to constitutional attack" as a "violation of the separation of powers of the constitution." (Footnote omitted.) He claims that the Practice Book and the statute are in conflict and that, since the offer of judgment rule is procedural in nature, the provisions of the Practice Book must prevail. He repeats these contentions in his reply to plaintiff's objection to motion for extension of time in which to respond to offer of judgment, which was also filed on July 23, 2007.
II DISCUSSION A Offer Of Judgment
The defendant does not challenge the plaintiff's allegation that her cause of action accrued prior to October 1, 2005. To the extent that the defendant purports to raise a constitutional challenge to the continued viability of an offer of judgment filed pursuant to former General Statutes § 52-192a, pertaining to a medical malpractice claim which accrued prior to October 1, 2005, the court declines to consider it, based on the reasons stated below.In Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006), the Supreme Court reiterated that it would not consider inadequately briefed state constitutional claims. "We decline to reach the defendant's state constitutional claim . . . because it was inadequately briefed pursuant to the standard this court enunciated in State v. Geisler, 222 Conn. 672, [684-85,] 610 A.2d 1225 (1992). As we concluded in Geisler, [i]n order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach . . . (2) holdings and dicta of this court . . . (3) federal precedent . . . (4) sister state decisions or sibling approach . . . (5) the historical approach, including the historical constitutional setting and the debates of the framers and (6) economic/sociological considerations . . . We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [claimant] has provided an independent analysis under the particular provisions of the state constitution at issue." (Citation omitted.). Id., 277 Conn. 153. The defendant's constitutional challenge here, raised for the first time in his sur-reply to the plaintiff's reply to objection to offer of judgment, and in his reply to plaintiff's objection to motion for extension of time in which to respond to offer of judgment, does not present the required constitutional analysis by addressing the factors listed in State v. Geisler, supra.
Also, the court is unpersuaded that Practice Book § 17-14A, which pertains to offers of compromise filed in actions for negligence against health care providers, conflicts with General Statutes § 52-192b, which pertains to the continued viability of offers of judgment filed in such actions which accrued prior to October 1, 2005. Practice Book § 17-14A was adopted on June 26, 2006, in response to Public Act 05-275, which adopted new language concerning offers of compromise for § 52-192a, and which became effective on October 1, 2005. See Glover v. Turner, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 4003471 (January 26, 2007, Esposito, J.). Practice Book § CT Page 16534 17-14A, along with other Practice Book changes (changes were made to §§ 17-11 to 17-18), was made effective January 1, 2007. The official commentary to Practice Book § 17-11 states that the changes to §§ 17-11 to 17-18 "are intended to adopt certain provisions of Public Act 05-275." Public Act 06-40, which became § 52-192b, became effective on May 8, 2006. See Glover v. Turner, supra.
Rather than be read as inconsistent with former § 52-192a and intended to nullify the effect of Public Act 06-40, now § 52-192b, Practice Book § 17-14A should simply be construed, to be consistent with § 52-192b, as not being applicable to personal injury or wrongful death actions, which accrued prior to October 1, 2005, and which allege negligence of a health care provider. As the Supreme Court recently stated, "[w]e recognize that § 52-192a was amended by No. 05-275, § 4, of the 2005 Public Acts, that the amended provisions are applicable only to actions accruing on or after October 1, 2005, and that the action here accrued prior to that date." (Emphasis added.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 59 n. 5, 919 A.2d 1002 (2007). "Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent; . . . courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent." (Citation omitted.) Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993).
In addition, the court is unpersuaded by the defendant's reliance, in this context, on Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn.App. 640, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). There, the Appellate Court held that § 52-192a, as it existed then, was procedural for choice of law purposes, and found that the trial court should have applied it in connection with the plaintiff's motion for interest, rather than denying the motion pursuant to New York law. See id., 649-50, 655-56. At the time, § 52-192a did not even apply to negligence and medical malpractice cases. As the Appellate Court stated in 1990, "[s]ection 52-192a applies only to civil actions on contracts or for the recovery of money." Paine Webber Jackson Curtis, Inc. v. Winters, supra, 22 Conn.App. 653. Public Act 92-110 amended § 52-192a(a) to authorize a plaintiff to file an offer of judgment in any civil action "seeking the recovery of money damages, whether or not other relief is sought" rather than in any civil action "for the recovery of money only." No conflicts or choice of which state's law to apply question is present here.
"As between the powers of the legislature and those of the judiciary, . . . the matter of prejudgment interest is manifestly `substantive.' . . . First, prejudgment interest is a matter that has traditionally been within the domain of the legislature; . . . 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, [ 257 Conn. 671, 684, 778 A.2d 145 (2001)]. 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). [Section] 52-192a confers a substantive right to interest . . ." (Citations omitted.) Hernandez v. Marquez, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 377482 (January 5, 2004, Levin, J.) (36 Conn. L. Rptr. 351).
Section 17-14A does not govern the present action. Since § 52-192a confers a substantive right to interest, the presumption that procedural rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the rule became effective, in the absence of any expressed intent to the contrary, is not applicable. See Mulrooney v. Wambolt, 215 Conn. 211, 216-17, 575 A.2d 996 (1990).
A Practice Book section, such as § 17-14A, which was adopted to conform to the new offer of compromise provided for in the new § 52-192a, which itself is only applicable to actions which accrued on or after October 1, 2005, may not abridge the substantive right to interest provided in former § 52-192a. See Hernandez v. Marquez, supra. The right to interest conferred by former § 52-192a is applicable to actions which accrued prior to that date. Accordingly, the defendant's objection to the plaintiff's offer of judgment is overruled.
CT Page 16536
B Motion For Extension Of Time
In his motion for extension, the defendant seeks an order providing him with a ninety (90) day period, after the plaintiff discloses all of her expert witnesses who will testify as to the prevailing standard of care, and provides the defendant with an authorization to obtain medical records, to respond to the plaintiff's offer of judgment. To the extent that the motion for extension raises the same arguments as raised in his objection, that an offer of judgment is procedural in nature, and not substantive, and that Practice Book § 17-14A governs the present action, the court is unpersuaded, for the reasons outlined above in the court's discussion of the defendant's objection to the plaintiff's offer of judgment.The defendant also argues that the time requested is no different than that allowed under Practice book § 17-14A. He contends that it is within the court's discretion to extend the time period afforded by § 52-192a, which, as stated above, provides for a sixty-day period within which to accept the offer. The defendant also argues that, even if the court concludes that former § 52-192a's time limit is mandatory, the fact that the statute has been amended to require expert disclosures and additional discovery materials presents an equitable exception which warrants the exercise of the court's discretion in granting the extension of time which he seeks, so that he has more time to evaluate the claim, in order to make an informed decision as to whether to accept the offer of judgment. In response, the plaintiff argues that § 52-192a mandates a sixty-day window in which to accept the offer and does not afford to the court the discretion to extend it.
The Superior Court decisions cited by the parties reflect a split in authority as to whether the court has the discretion to extend the time to respond to an offer of judgment. Having reviewed these decisions, the court is persuaded that former § 52-192a's language is mandatory. See Meyers v. Troncale, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00 0439881 (January 2, 2002, Robinson, J.) (31 Conn. L. Rptr. 179).
"As we have often stated, [d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature." (Internal quotation marks omitted.) Lostritto v. Community Action Agency Of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). Former § 52-192a(a) provides that "[i]f 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." (Emphasis added.) The statute uses the word "shall" in the next subsection, wherein § 52-192a(b) provides, "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve per cent annual interest on said amount." (Emphasis added.)
"[T]he word `shall' is not dispositive on the issue of whether a statute is mandatory . . . [and] the use of the word shall, though significant, does not invariably [create] a mandatory duty." Lostritto v. Community Action Agency Of New Haven, Inc., supra, 269 Conn. 22. "The test to be applied in determining whether a [rule] is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 622-23, 755 A.2d 180 (2000).
"The purpose of § 52-192a is to encourage pretrial settlements by penalizing a party that fails to accept a reasonable offer of settlement in any civil action based upon contract or seeking the recovery of money damages." (Internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Association, Inc., 239 Conn. 769, 783-84 n. 22, 687 A.2d 1270 (1997). "The language of § 52-192 (a) . . . expressly states what happens to an offer of judgment if it is not accepted by a defendant within a [sixty] day period, i.e. it is rejected and not subject to acceptance unless . . . refiled." Meyers v. Troncale, supra.
The court concludes that the statutory language, which relates to a matter of substance, and repeatedly utilizes the word "shall," is mandatory. It is accompanied by negative words, which mandate that an unaccepted offer of judgment shall be considered to be rejected, and which expressly impose a penalty where a defendant has failed to accept the offer of judgment and the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's offer.
The defendant also argues that compliance with mandatory time limitations can be excused for equitable reasons, citing Pedro v. Miller, 281 Conn. 112, 119, 914 A.2d 524 (2007). There, the Supreme Court reiterated that "[m]andatory time limitations . . . must be complied with absent an equitable reason for excusing compliance . . ." (Emphasis in original; internal quotation marks omitted.) Id., 118. Concerning the 120-day time limit in General Statutes § 52-102b (which relates to service of an apportionment complaint), the court found that "[i]t was only when the plaintiff filed the amended complaint . . . more than sixteen months after the original return date, that she added allegations that she had suffered a cerebrospinal fluid leak during her treatment for her other injuries arising from the accident. Until she made this allegation in the amended complaint, the defendants had no factual or legal basis for seeking apportionment against [the apportionment defendant]. Therefore, the legal basis for the defendants to seek apportionment from him did not arise until after — indeed, long after — the 120-day limit already had passed. Consequently, it was impossible for the defendants to serve the apportionment claim upon [the apportionment defendant] within the 120-day limit established by § 52-102b(a). Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute." Id., 119.
Here, the defendant does not allege a similar compelling equitable reason for excusing compliance with former § 52-192a's mandatory provisions. Instead, he argues that the recent amendments establish that such an extension is warranted here. In effect, he asks the court not to apply § 52-192b, quoted above, in which the legislature expressly provided that the changes to § 52-192a, which supplanted the offer of judgment with the new offer of compromise, were not applicable to causes of action, such as that which is at issue here, which accrued prior to October 1, 2005. This does not amount to a compelling equitable reason. Rather, the defendant seeks to have the court turn back the clock and make an offer of compromise applicable to an action which the legislature expressly has stated is not covered by the new provisions of § 52-192a. The court may not do so.
"Although we are directed to interpret liberally the rules of practice, that liberal construction applies only to situations in which `a strict adherence to them would work surprise or injustice.' Practice Book § 1-8, formerly § 6." Pitchell v. City of Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). Following § 52-192b's statutory mandate, which makes former § 52-192a applicable here, results in neither surprise nor injustice. See Meyers v. Troncale, supra; see also Hernandez v. Marquez, supra (Practice Book § 1-8 may not abridge the substantive right to interest conferred by § 52-192a). Accordingly, the defendant's motion for extension of time to respond to the plaintiff's offer of judgment is denied.
CONCLUSION
For the reasons stated above, the defendant's objection to the plaintiff's offer of judgment is overruled and his motion for extension of time is denied.
It is so ordered.