Opinion
No. X01-02-0179481-S
November 10, 2005
MEMORANDUM OF DECISION
RE POST-VERDICT MOTIONS (#192.20; #197.30; #197.40; #209) Factual Background
The centerpiece of this action is the kidnapping of two (2) minor children ("H" and "V") from their Massachusetts home by their natural father, Anwar Wissa, Jr. via a flight from Bradley Airport in this state to Cairo, Egypt. At the time of the abduction, the plaintiff-mother had primary physical custody under valid and enforceable orders of the Probate and Family Court of the Commonwealth of Massachusetts; the plaintiff and defendant Wissa then shared legal custody. Under the same orders, defendant Wissa had regularly scheduled visitation to include overnights. The flight to Cairo was on a privately chartered airliner operated by defendant Executive Jet Management (EJM) whose employees or agents made the arrangements with Wissa on less than thirty (30) hours notice; they flew the plane. The children were taken to Egypt without the mother's knowledge or consent on August 23, 2001, and were not recovered until twenty-two (22) months later on June 25, 2003, in Cuba. During their absence, the plaintiff was able to speak with them by telephone only irregularly for the first two-four (2-4) months and thereafter had no contact with them until they were recovered. Recovery efforts required the expenditure of millions of dollars for the services of lawyers (both here and abroad), interpreters, investigative agencies, and for travel and accommodations for trips to Egypt, Turkey, Cuba, New York, London, Houston, and Washington, D.C. as the mother explored every lead and as she pursued — and eventually obtained-sole custody of her children in an Egyptian court. The abduction of the children, then six (6) and seven (7) years of age, facilitated as the jury found it was by EJM, deprived the plaintiff-mother of the custodial rights she enjoyed under the Commonwealth's decree, caused her severe emotional distress and depression/anxiety for which she was medically treated, and the loss of her children's consortium as recognized by Massachusetts law.
At trial, she testified — and the jury believed — that she continued to fear her children will again be kidnapped and to worry that they may not in the future be able to cope with life's stresses and challenges or be able to form lasting, loving bonds with life partners. There was evidence that, during the separation period, the children were told their mother did not want to visit them and, when recovered in Cuba, they exhibited hostile and aggressive behavior toward her. Her son screamed at her, shouted obscenities, bit and kicked her, and ran to the other side of the room when he first saw her; he presented then as "wild-haired," "wild-eyed," "filthy," and "scrawny." Both children had been living on a boat for six (6) months and "showering" every other day with a garden hose. There was evidence also that the son now expresses anger toward his father and that the daughter continues to be afraid to go upstairs at home alone and has had academic problems as a result of memory losses. Both children continue regularly to be seen by therapists and other medical providers.
The case against EJM was tried to a jury from April 15-April 26, 2005. The jury found for the plaintiff-mother on all three (3) counts and returned verdicts as follows:
The case against Wissa was tried to the court and that memorandum of decision is also published this date.
a) Count One: Interference With Custodial Relations $ 10 mil.
b) Count Two: Negligence "Same"
c) Count Three: Loss of Filial Consortium $ 17 mil
Though this cause of action was originally asserted as Count Six of the Second Revised Complaint, it went to the jury as Count Three.
Total Verdict $ 27 mil.
Post-Trial Motions
The parties filed three (3) separate post-trial motions (with supporting and supplemental briefs) as follows:
a) Motion to Set Aside Verdict and For New Trial (#197.30);
b) Motion to Set Aside the Verdict and For New Trial or Remittitur (# 197.20);
c) Motion to Set Aside Verdict and For Judgment Notwithstanding the Verdict (#197.40).
d) Motion for Assessment of Prejudgment Interest (#209); and
c) Setoff
Memoranda in opposition were filed as were Reply Memoranda with lengthy attachments to include documents, excerpts of trial testimony, affidavits, cases, etc. The court heard argument on August 3, 2005, and the parties subsequently filed supplemental memoranda.
Motion to Set Aside Verdict and For New Trial (#197.30)
The trial court has the inherent power to set aside a jury verdict which is against the law or evidence. O'Brien v. Seyer, 183 Conn. 199, 208 (1981). It should not set aside a verdict where it is apparent that there was some evidence upon which the jury could reasonably have reached their conclusion but should not refuse to set it aside where the manifest injustice of that verdict is so plain as to clearly denote that some mistake was made in the application of legal principles or that the jury (or some of them) were influenced by prejudice, corruption, or partiality. Howard v. MacDonald, 270 Conn. 111, 126 (2004) (Citation omitted). The right to a jury trial "is one obviously immovable limitation on the legal discretion of the court . . . since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Id., at 128 (Citation omitted). "[I]f there is a reasonable basis in the evidence for the jury's verdict . . ., the trial court should let the jury work their will." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 720, 731 (2005) (Citations omitted). Only if the jury could not reasonably and legally have reached their conclusion should its verdict be set aside. Cohen v. Yale-New Haven Hosp., 260 Conn. 747, 761 (2002). The conclusion merely that the jury exercised poor judgment is not a sufficient basis upon which to set the verdict aside. Wochek v. Foley, 193 Conn. 582, 587 (1984). In determining whether the jury's verdict is reasonably supported by the evidence, the evidence must be viewed in the light most favorable to the plaintiff. Johnson v. Chaves, 78 Conn.App. 342, 346 (2003).
The defendant has raised ten (10) grounds, many of which have been earlier raised either by way of a substantive motion which was fully briefed and adjudicated or by way of discovery or pretrial motions also briefed and decided. As to those stated grounds, the court has already articulated the basis of her opinions and, since no argument raised in this motion dictates a different result, there presents no reason to iterate what has already been articulated. With regard to the argument these causes of action are preempted by federal law, see Ruling and Order of Underhill, J. in Docket # 02-CV-1003 (D.Conn., Dec. 5, 2002) and this court's Memorandum of Decision on Motion to Dismiss dated 11/3/03. In its post-trial motion, EJM bases this claim on the Airline Deregulation Act — not argued earlier — and likens this case to fraud and breach of contract claims (neither of which is claimed here). While this court believes the argument under the ADA is abandoned, she is not persuaded the ADA intended to preempt common-law state tort claims — particularly where as here there is no showing the assertion of the claims conflict with federal oversight or regulation of air travel. Further, most federal cases considering preemption clauses conclude they do not implicate the court's subject matter jurisdiction but are at best waivable affirmative defenses. See, e.g., Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003), which relied heavily upon the case the defendant here cites ( Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). A state claim whose relationship to an air carrier's service is "too tenuous, remote, or peripheral" does not have preemptive effect. American Airlines, Inc v. Wolens, 513 U.S. 219, 224 (1995). This court is persuaded by the reasoning of Pittman v. Grayson, 869 F.Sup., 1065 (S.D.N.Y. 1944) (in which the plaintiffs sued Icelandair for its participation in the abduction of minors). Pittman rejected the argument here raised; it concluded that allowing the suit before it "would not frustrate the ADA's economic deregulation of the airlines nor significantly impact the airline's competitive posture." Id., at 1074. Because the better view is that the issue of preemption should be evaluated from the standpoint of the impact of the asserted claim on the economic competitiveness of airlines, because there can be no showing EJM competes in the industry on the basis of the case with which a parent may abduct his children in violation of court orders by use of its aircraft, and since, in enacting the ADA, Congress "did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct" ( Chavas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 [9th Cir. 1998]), the preemption argument (if not abandoned as this court believes) is not persuasive.
The defendant EJM removed this case to federal court, which court returned the matter to state court. It argued preemption — raised again here — before the federal court; the claim was there rejected. Thereafter, the defendant filed a Motion to Dismiss, a Motion to Strike, and a Motion for Summary Judgment; the court adjudicated each such motion and issued Memoranda of Decision.
In its related JNOV motion, the defendant has argued its preemption argument is reviewable under the plain error doctrine. However, "[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 326, fn.24. (Internal quotation marks and citation omitted.) This court believes the plain error doctrine is inapplicable because, assuming arguendo an error in the court's decision re preemption, it is not so obvious an error or so truly extraordinary a situation as to represent fundamental unfairness or diminish public confidence in these proceedings where, as here, the defendant had — and exercised — the opportunity to brief the preemption doctrine on numerous occasions and rested its argument on each such occasion, not on the ADA, but on the Warsaw Convention and where, as here, there are numerous and logical reasons to reject defendant's argument. See earlier referenced motions and rulings.
Regarding the claim there is no cause of action for aiding and abetting Wissa's interference with the plaintiff's custodial relations, this court fully considered the argument raised by way of both a Motion to Strike and a Motion for Summary Judgment and rejected it. See memoranda of decisions dated June 29, 2004, and December 27, 2004. Regarding the claim the verdict should be set aside and a new trial granted because Connecticut substantive law should have been applied to all counts and because EJM owed no duty to the plaintiff-mother, the court fully articulated her analysis and the applicable case law. The parties are again referred to the twenty-seven (27) page Memorandum of Decision on Motion for Summary Judgment wherein the court rejected the defendant's argument Connecticut substantive law should apply under the doctrine of lex loci delicti (because the flight originated in this state). Applying §§ 145 and 6 of the Restatement (Second) of Conflict of Laws, she concluded Massachusetts substantive law, which by statute and common law recognizes a cause of action for filial consortium, should apply. Interestingly, as the plaintiff notes, EJM is a citizen of Ohio which, like Massachusetts, recognizes a cause of action for filial consortium. See e.g., Gallimore v. Children's Hosp. Med. Ctr., 67 Ohio St.3d 244, 251, 617 N.E.2d 1052, 1057 (1993). Its preference for the application of Connecticut law as opposed to the law of either Massachusetts (where the children and both parents had continuously resided, where all family members were born, and from which state Wissa's communications with EJM originated) or Ohio is premised entirely upon this state's more restrictive view of that cause of action. The same Memorandum of Decision analyzed the concepts of "duty" and "foreseeability" with regard to the negligence claim of Count Two.
In fact, this state has recognized aiding and abetting as an appropriate vehicle for imposing civil liability in Carney v. DeWees, 136 Conn. 256 (1949). See also Efthimiou v. Smith, 268 Conn. 499 (2004); Restatement (Second) of Torts, § 876.
This state's own Supreme Court abandoned categorical allegiance to that doctrine in tort cases in O'Connor v. O'Connor, 201 Conn. 632 (1986).
The defendant posits its action or inaction is not, as a matter of law, approximate cause of the abduction. "The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement, the question is one to be determined by the trier as a matter of fact." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 322 (2004). This court instructed the jury the test for determining proximate cause was whether EJM's conduct was a substantial factor in bringing about the claimed injury or damages, that it must be established the injury or damage would not have occurred but for the defendant's wrongful conduct and that there may be more than one proximate cause of the claimed injury. Tr., 4/27/05, p. 72. In fact, the jury was directed to "insist" the defendant's conduct be a substantial factor in causing the claimed injury or damage. Id., at 73. Though EJM took no exceptions to the charge, it argues (in each of these motions) that each such failure to take exception should be preserved under the plain error doctrine. See New Trial Motion, at p. 3. "Jury instructions must be read as a whole . . . and are not to be judged in artificial isolation from the overall charge." See, e.g., DeMarkey v. Fratturo, 80 Conn.App. 650, 659 (2003) (Internal quotations omitted).
Thus, the jury was instructed with regard both to cause in fact and legal causation (of which causation in fact is the first component). Our Appellate Court has said, "The proximate cause requirement tempers the expansive view of causation [in fact] . . . by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty." Dubreuil v. Witt, 80 Conn.App. 410, 428 (2003).
The jury was also charged it could not find EJM liable to the plaintiff solely for its failure to require executed dual consent forms. Tr., 4/27/05, p. 80.
Trial testimony clearly established arrangements for the flight in question were made on less than thirty (30) hours notice, that the father had requested a one-way trip to Egypt, that the passenger manifest indicated two very young children would be flying with them, unaccompanied by an adult female, and that the quoted charge of approximately $160,000 was so "unusual" that the Director of Charter Operations (who took the reservation and spoke to the father) had himself never booked a trip to Egypt nor could he identify any prior international flight booked on such short notice, and he couldn't remember any charge as high as this one. In fact, his testimony was that he could not recall any other instance where one parent had booked an international flight for children without the presence of the other parent. There was evidence the father's credit card company would authorize only $15,000; the remainder came from a wire transfer made by a female not known to the defendant and not related to the children. The same witness testified he did not want to know whether the minors' mother would be on the flight. The defendant's own expert testified to the charter industry's "Know Your Customer" rule; he testified the proper procedure in booking a flight such as this for a new (or "pop-up") customer was to determine whether the potential client was "established" by inquiring whether he owned a home, had a bank account, etc. — none of which inquiries were here made. He also testified that, if — as here — a wire transfer were involved, the normal practice would have been to gather information about the source of the funding. That was not done here. Further, there was evidence before the jury that a company called NetJets, this defendant's sister company, in a publication entitled "NetJets Update," advised that, in view of "parental custody issues," U.S. Customs and Border Patrol officers recommended "children carry documentation when traveling internationally alone or with only one parent . . . regardless of the minor child's nationality or age." Exh. 26. It continued, "It is also recommended that the child carry a notarized letter signed by the absent parent . . . authorizing the travel." Id. Though that communication was published in 2003, no EJM employee who testified (either in deposition or at trial) had any knowledge of the communication or the contents of the warning. EJM made no inquiry of Wissa regarding any documents relevant either to the children or to their mother; thus, no document or notarized letter was provided. The NetJets article concluded with a referral to the State Department's website at www.travel.state.gov for additional information. EJM's Director of Charter Services (Montag)-whose e-mail address is T. Montag at NetJets.com — testified that he expected the defendant's operations area would be checking for the State Department's various advisories regarding travel to foreign countries. Finally, by affidavit made a full exhibit (Exhibit 27), Leila Ben Debba, who served as International Case Coordinator for the National Center for Missing and Exploited Children from 1999-2002, testified to a State Department advisory dated August 2000, entitled "International Parental Child Abduction — Egypt" (referred to as the "Egypt Advisory"), which read in part:
Currently there are no international or bilateral treaties in force between Egypt and the United States dealing with international parental child abduction. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked if a child is taken from the United States to Egypt, or vice versa, by one parent against the wishes of the other parent or in violation of a U.S. custody order.
That same advisory (available when this flight was being arranged) notes that children under a certain age (generally, 18 years for boys and 21 years for girls) cannot leave Egypt without the father's permission, that Egyptian immigration officials allow a father to put a travel "hold" on his children, and that American citizens traveling to Egypt "place themselves under the jurisdiction of Egyptian courts." Id. Under all of these circumstances, this court concludes: 1) proximate cause was a question of fact for the jury; 2) there was not error in the charge regarding proximate cause which, read as a whole, was fair to both parties; 3) there was sufficient evidence upon which the jury could have found EJM's action — or inaction — was a proximate cause of the plaintiff's injury or damages; and 4) given the totality of the evidence as above described, there was sufficient evidence upon which the jury could have found EJM was wilfully blind to Wissa's abduction of his children, that Wissa could have successfully abducted the children only by reason of EJM's willingness to satisfy the unusual and urgent travel demands of Wissa ("urgent" in view of the testimony that, on the Monday following this Friday flight, there was a scheduled hearing in the Massachusetts probate court concerning the plaintiff's request Wissa's future travel with the children outside Massachusetts be prohibited) and as a result of EJM's ignorance of or knowing avoidance of information regarding parental abduction of children to such countries as Egypt, which information had been available to EJM and its sister company.
The defendant claims there was no evidence it was either reckless or wilfully blind regarding the abduction or that it intentionally assisted Wissa in the abduction or that it even knew of Wissa's intention to kidnap the children. Here again the defendant claims the court improperly charged the jury and, though the defendant took no exceptions to the charge, it can seek review under the plain error doctrine. The jury was instructed it must find the defendant "knowingly assisted in a substantial way Wissa's illegal conduct" to hold it liable for aiding and abetting Wissa's interference with the plaintiff's custodial relations. There is not the requirement — under either Massachusetts or Connecticut decisional law — to plead or prove actual knowledge. If a person confronted with a state of facts closes his eyes in order that he may not see that which would be visible and therefore known to him if he looked, he is chargeable with "knowledge" of what he would have seen had he looked. Demoulas v. Demoulas, 428 Mass. 555 (1998). "[K]nowledge of facts or circumstances which ought reasonably to excite suspicion and put one on inquiry is sufficient to charge one with notice of those facts that he might have ascertained by the exercise of ordinary diligence." State v. Barber, 24 Conn.Sup. 346, 352 (Conn. Cir.App.Div. 1962). The plaintiff alleged EJM remained wilfully blind and/or egregiously refused to see the father's obvious unlawful activity. Second Revised Complaint, Para. 43. The jury was free to consider whether, under all of the circumstances to include the irregularities in the flight arrangements (specifically, the short notice, the circumstances surrounding payment, and the absence on the manifest of a female of such an age as to suggest she was the mother of the children), the defendant's aggressive marketing of the "privacy" and "discretion" afforded travelers by the charter airline industry, EJM's failure to know of or to act upon State Department warnings re parental abductions and the travel by children to Egypt, the failure to require dual parental consent forms, etc., EJM was liable for aiding and abetting Wissa's wrongful act. Whether EJM had the requisite knowledge to impose liability is a question particularly suited to a trier of fact. See Batick v. Seymour, 186 Conn. 632 (1982). The court's charge was an application of evidentiary rules permitting juries to infer knowledge and intent from circumstantial evidence and to find awareness of a fact based on wilful blindness to it. In fact, the jury heard from an EJM witness that no inquiry was made of Wissa whether he was even the father of these children. The characteristic element of wilful misconduct is "the design to injure either actually entertained or to be implied from the conduct or circumstances . . ." (Emphasis added.) Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 197 (2005). On the basis of the evidence before the jury, it could reasonably have concluded EJM knowingly and wilfully aided and abetted Wissa. "[E]rror cannot be predicated on the court's failure to adopt the particular language of a request to charge where the matter is adequately and fairly covered in the charge." Drummond v. Hussey, 24 Conn.App. 247, 249 (1991). To charge the jury (as this court did) that the jury must find the defendant knowingly assisted the father's illegal conduct in a substantial way is to charge intentional assistance under the circumstances.
Nor does this court accept that she should have instructed that Count Three (loss of filial consortium) was "the damages for the First Count." Motion, at p. 2. The court, having explained the elements of the two causes of action, carefully noted the distinction between the damages for Count One and Count Three. She noted the damages to be awarded for Count One, if awarded, were for the plaintiff's own emotional injury (for which she was medically treated) whereas the damages to be awarded for Count Three were for the deprivation of the society of her two young children for twenty-two months and for the joy and fulfillment experienced in sharing in their daily lives. Tr., 4/27/05, Charge, at 30-31. That charge is consistent with both the comments to Restatement (Second) of Torts, § 700 and Murphy v. I.S.K. Con. Of New England, Inc., 409 Mass. 842 (1991), which provides that, in intentional interference actions, a parent may recover compensation for loss of filial consortium in addition to damages for emotional distress and monies spent for recovery of the child. Id., at 862.
Regarding the claim it was error to permit a question concerning "the lack of subsequent remedial measures by the defendant" (Motion, at p. 2), the court's recollection is that she ruled during trial that Rule 4-7 of the Connecticut Code of Evidence did not preclude the introduction of deposition testimony reflecting the "lack" of subsequent remedial measures. By its terms, Rule 4-7 provides evidence of "measures taken" after an event, which, if taken before the event, would have made injury less likely to result is not admissible to prove negligence or culpable conduct. By its terms, it prohibits evidence of affirmative remedial measures taken after the event to prevent future harm to others (as, for example, if the defendant were asked whether, after this flight, EJM required a father traveling alone with children to produce executed dual parental consent forms or, in the case of a divorced father, a copy of a court order permitting him to take his children out of the country). The purpose for excluding evidence of subsequent remedial repairs is to encourage repairs without fearing the fact of repair would be offered as proof of negligence. Hall v. Burns, 213 Conn. 446, 457-58 (1990). The rule does not preclude evidence no repairs or measures were taken. Thus, when EJM's employee (Raber) testified EJM, as a result of this abduction, had not done anything to safeguard against further child abductions on its flights, it was not in contravention of either the express language or underlying policy rationale of § 4-7. The federal counterpart to that section, Federal Rule of Evidence 407, is a narrow limitation designed to exclude only evidence that would discourage safety improvements. See, e.g., Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir. 1981). Further, this court's belief is that no objection to the question was made until the day after the testimony; thus, had the court instructed the jury not to consider that evidence (the requested remedy), the jury would have heard the allegedly offensive testimony twice.
Finally, the defendant claims the court improperly determined EJM could not claim superseding cause because it denied its own negligence and alternate pleadings are permissible. It needs first be stated the court did not prevent evidence of intentional wrongdoing by others. There was frequent reference to the wrongful conduct of Wissa, his mother, and Hope Amanda Smith (who paid for the flight). The Order of April 20, 2005 (in response to a Motion in Limine for Preclusion of Evidence Relating to Comparative Negligence Special Defenses) precluded "evidence or argument regarding the apportionment of liability or fault as to reckless or intentional tortfesors" and the court noted no apportionment claim had been advanced . . . No clarification of that Ruling was requested; thus, the court had no reason to believe any party thought the Order meant other than what it said — EJM could not argue or offer evidence going to the percentage of liability vis-a-vis intentional tortfeasors. The same Ruling also provided the "existence of intervening superseding cause presupposes [defendant's negligence] which is denied; no jury issue presents." EJM now argues the court concluded — wrongly — EJM's denial of negligence and its effort to assert superseding cause as a defense were inconsistent and that superseding causation applies only when there is admitted negligence. Again, no clarification of the Ruling was requested.
EJM relies primarily on Wagner v. Clark Equipment Co., 243 Conn. 168 (1997). "Traditionally, Connecticut law defined superseding cause as `an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.'" Motion, at pp. 5-6, citing to 243 Conn., at 179. The defendant then cites to Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003). The claim in Barry was that the trial court improperly instructed the jury on the doctrine of superseding cause (The defendants there claimed the combined negligence of both plaintiffs constituted superceding cause which exonerated the defendants from liability on the product liability claim; the plaintiffs argued their injuries were not outside the scope of the risks created by the alleged defective design and manufacture of the subject roof bracket). The Court engaged in an extensive examination of the continuing vitality of the doctrine and concluded the doctrine "no longer serves a useful purpose in our tort jurisprudence" ( Id., at 446) and that it was "no longer appropriate to give an instruction of the doctrine of superseding cause in cases involving multiple acts of negligence." Id. In the case before this jury, there was no claim of negligence against any party other than EJM (As earlier noted, the case against Wissa was premised on his intentional conduct and was tried to the court). Because C.G.S. § 52-572h(o) provides there shall be no apportionment of liability or damages as between negligent parties on the one hand and other than negligent tortfeasors (to include intentional tortfeasors such as Wissa), this court, in the above-referenced Ruling, precluded argument of a never pled apportionment claim. The defendant, while conceding § 52-572h(o) precludes any argument of apportionment as against Wissa and that both Massachusetts and Connecticut law relates superseding cause to proximate cause, states, "In the instant case, however, EJM claims that the reckless and intentional acts of third parties, not the third parties' negligence, worked as a superseding cause" and that EJM "should have been allowed to argue the conduct of third parties broke the causal chain." Motion, at p. 6. The effect of the court's Ruling, EJM argues, was to make it responsible for the conduct of third parties "even if its conduct was not the proximate cause of the plaintiff's alleged injuries." Id. The court is not persuaded. While the Barry Court articulated that its conclusion the doctrine no longer served a useful purpose was confined to cases wherein there were multiple acts of negligence ( 263 Conn., at 439, fn. 16), there is no reason to believe the result would be any different if that Court were presented with these circumstances. "Our conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct." (Emphasis added.) This is not the case in which a criminal attack on a plaintiff was deemed to be a superseding cause of plaintiff's inquiry claimed to have been caused by an overgrowth of vegetation on the defendant's property ( Doe v. Manheimer, 212 Conn. 748). Nor is it a case wherein the murder of a decedent in a parking garage (owned and operated by a defendant who allegedly failed to provide adequate security) was deemed to be a superseding cause which exonerated the defendant's claimed negligence ( Stewart v. Federated Dep't Stores, 234 Conn. 597) — both of which cases were cited by the Court in Barry at fn. 16. The defendant here cannot dress Wissa as an "unforeseeable" intentional tortfeasor. The Court in Stewart described the concept of proximate cause as a limitation on "how far down the causal continuum individuals will be held liable for the consequences of their actions." 234 Conn. at 605-06. Clearly, that Court viewed intervening or superseding cause as having a temporal component. EJM confuses, as did the plaintiff in Wagner, supra, the concepts of concurring cause and superseding cause. "A concurrent cause is contemporaneous and coexistent with the defendant's wrongful conduct and actively cooperates with the defendant's conduct to bring about the injury. (Citations omitted.) A concurrent cause does not relieve the defendant of liability. (Citation omitted.) A superseding cause, by contrast, `so entirely supersedes the operation of the defendant's negligence that it alone, without his negligence contributing thereto in any degree, produces the injury . . .'" (Emphasis added.) 243 Conn., at 183. Consistent with this analysis, the Court in Barry directed that, upon retrial, the fact finder must determine whether the defendants' conduct "was a cause in fact and a proximate cause of the plaintiffs' injuries." 263 Conn., at 446. Their view of proximate cause "implicitly includes one of the stated purposes of the doctrine of superseding cause, namely, to limit the defendant's liability to foreseeable bounds." Id., at 441, fn. 17. And, as EJM concedes, Massachusetts law also relates the superseding cause doctrine to proximate cause. Motion, at 7, citing to Kent v. Commonwealth, 437 Mass. 312, 320 (2002) (holding the decision of INS to take custody of the prisoner and deport him to Canada superseded any negligence of the parole board which released a prisoner who later shot a police officer). Massachusetts also views "intervening cause" as having a temporal component. It is one "which comes into active operation after the negligence of the defendant." Christopher v. Father's Huddle Cafe, Inc., 57 Mass.App.Ct. 217, 228 (2003). An intervening cause "is neither operating in the defendant's presence, nor at the place where the defendant's act takes effect at the time of the defendant's act." Id. Intervening acts occurring subsequent to a defendant's negligence may constitute superseding cause. (See e.g., Howard Alperin et al., 14C Mass. Prac., Summ. Of Basic Law § 20.233, n. 1 [3d ed. 2004]) and see also Peckham v. Continental Casualty Co., 895 F.2d 830, 838 (1st Cir. 1990) in accord. It was — and is — this court's view no jury issue as to superseding cause presented because EJM's actions in conducting the flight under the circumstances here presented and Wissa's conduct in carrying out the abduction were concurrent. The inquiry for this jury was whether EJM's conduct was both a cause in fact and a proximate cause of the harm to the plaintiff. They were instructed as to both as they were instructed there can be more than one substantial factor. That Wissa's conduct in abducting the children occurred contemporaneously with EJM's conduct of the flight under the circumstances with which it was presented obviates the concern of the Barry Court that too much prominence ought not be given to the temporal order of the contributions of each tortfeasor since "most events . . . result from a convergence of many conditions." 263 Conn., at 424. (Citation omitted.)
EJM never puts a face on "third parties" but it should be noted the only other party in the case before the court was Wissa, whose claimed conduct was intentional and whose case was tried to the court. The claims of negligence against other parties were resolved prior to trial; had they not been resolved, Barry makes clear the doctrine of superseding cause would not have been applicable.
As the Court in Wagner, supra, noted, "the terms `intervening cause' and `superseding cause' have been used interchangeably." 245 Conn., at 178. It then deferred to 2 Restatement (Second), Torts §§ 440-453, which takes the position "superseding cause" is correct and that that term embodies within it the concept of an "intervening force."
The defendant's Motion to Set Aside Verdict and For New Trial is denied.
Motion to Set Aside Verdict and For Judgment Notwithstanding the Verdict (#197.40)
The issues (six in number) raised in this motion were raised in the motion already considered herein — thus, the court address them only briefly.
EJM argues its failure to move for a directed verdict should have no effect on this court's ruling on its motion for judgment notwithstanding the verdict because its motion for summary judgment raised the issue of preemption only with regard to the Warsaw Convention and not to the Airline Deregulation Act (ADA) and, thus, the issue of preemption was preserved for review. Since the ADA was not raised in either the motion to dismiss or the motion for summary judgment, the court rejects the argument the ADA issue was preserved since — though it could have been raised — it was not. Nor does the court believe the plain error doctrine preserves the issue for the reason here earlier stated. The federal statute is not applicable (Specifically, in enacting the ADA, Congress did not intend to immunize airlines for personal injuries caused by their tortious conduct and because allowing this suit does not significantly impact EJM's competitive posture in the industry). Further, if, as defendant argues, preemption raises an issue of subject matter jurisdiction (Motion, at 2), it is an issue for the court. EJM neither raised any defense based upon the ADA nor argued the ADA in its motion for summary judgment (as the defendant concedes). In a remarkably similar Massachusetts case, the Massachusetts Supreme Judicial Court held that a defendant who failed to raise a preemption defense based upon the Labor Management Relations Act in a motion for directed verdict could not raise it for the first time in a JNOV motion. See Abramiam v. President Fellows of Harvard Coll., 432 Mass. 107, 115 (2000). Our Supreme Court has emphasized that the phrase "relate to" in the preemption clause of the ADA "cannot be taken to extend to the furthest stretch of its indeterminancy or else for all practical purposes preemption would never run its course." Egelhoff v. Egelhoff, 532 U.S. 141, 146 (2001). Preemption, in that Court's words, ought not turn on "infinite connections." Id., at 147. To the extent it may be said this case raises issues of boarding or ticketing procedures, it is only peripherally so and to so construe the federal preemption clause as to be applicable here would create a "safe harbor for airlines from civil prosecution for the civil analogues of criminal offenses." Pittman v. Grayson, 869 F.Sup. 1065, 1074 (S.D.N.Y. 1994). Holding EJM liable for its tortious conduct here will not undermine the ADA's goal of promoting competition within the airline industry.
The claims here raised do not present issues of state imposed obligations on an air carrier's pricing structure, its routing, ticketing or boarding procedures or service. See, e.g., 149 U.S.C. § 41713(b)(1). Contrary to the claim EJM advances in its Reply brief, this case does not center on the bargaining process between Wissa and EJM (Indeed, there was no negotiation at all between them). Nor is there any claim or evidence here of state imposed obligations that would result in additional operating costs to EJM.
Finally, as the plaintiff has argued, the same counsel who here argues the failure to move for a directed verdict does not preclude the granting of a JNOV motion has previously written, "The motion for directed verdict is a prerequisite to a § 16-37 motion." Horton, Shields Knox, Connecticut Practice Book Annotated, § 16-37, Authors' Comments, at 573 (citations omitted). Citing to Salaman v. Waterbury, 44 Conn.App. 211, 215-16 (1997), the authors continue, "A motion for judgment n.o.v. should raise only issues that were raised in a motion for directed verdict." Id. This court finds no reason to abandon this requirement of procedural practice long recognized by our jurisprudence.
P.B. § 16-37 provides inter alia, "After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set the verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict."
As to the claim there was not evidence of recklessness, see the references to this court's earlier rulings and see also Dubay v. Irish, 207 Conn. 518 (1988) — also cited by this defendant — wherein our Supreme Court stated, "While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." Id. See also Dubay, at 533, fn. 8. There was more than sufficient evidence for the jury to find that EJM was wilfully blind to the charter industry's "Know Your Customer" rule; its own expert testified to EJM not following the proper practice of determining a profile of a pop-up customer and, where a wire transfer was involved, of gathering information regarding the source of the funds. Tr., 4/26/05, a.m., at 28 and p.m., at 14.
With regard to the no duty claim, see Ruling on Motion for Summary Judgment, at 12-14, EJM's attempt to engraft a "special relationship" requirement upon the longstanding two-pronged test of foreseeability and public policy goals is not supported by the law of either Massachusetts or Connecticut where, as here, the defendant actively aided in Wissa's plan and, by so doing, was liable to the plaintiff under Count One. See, e.g., McKinney v. Vareschi, 42 Mass.App.Ct. 953, 955 (1997) ("The foremost consideration in determining whether a special relationship exists between a plaintiff and a defendant is whether the defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so."); Lodge v. Arett Sales Corp., 246 Conn. 563, 571 (1998) ("The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct . . ."). Nor is EJM's concern that requiring background information from a passenger or inquiring into the consent of a non-traveling parent would expose it to federal or state claims of discrimination under these circumstances persuasive since child abductors are not a constitutionally protected class and the sex of the non-traveling parent (or of the traveling parent) is neither determinative nor at issue.
The motion is denied.
Motion to Set Aside the Verdict and For New Trial or Remittitur (#197.20)
The defendant has moved under P.B. §§ 16-35, 16-36 and C.G.S. § 52-216a, the verdict (in the total amount of $27 million) be set aside and a new trial be ordered either unconditionally or unless the court order a remittitur accepted by the plaintiff. It argues the verdict is excessive as a matter of both state common law and federal constitutional law, is inconsistent and duplicative, and should be offset as a result of "any settlement with a former codefendant."
While the defendant consistently describes a verdict of $27 million, the jury returned two (2) verdicts based on two (2) separate causes of action and for which the plaintiff claimed differing injuries and/or losses. It was instructed that, with regard to Count One (the aiding and abetting of interference with custodial relations), they were to consider the plaintiff's recovery costs (There was evidence the plaintiff herself paid $699,916.38 in such costs) and her emotional distress. The defendant has raised plaintiff's reference (in closing argument) to the plaintiff's mother having spent more than $3 million in recovering her grandchildren. Defense counsel objected to that comment; the court sustained the objection and told the jury, "She's not entitled to that. She's not entitled to that as economic damages." Tr., 4/27/05, a.m., at 32. Counsel then asked for a curative instruction which the court indicated the jury would get — at which point, plaintiff's counsel remarked to the jury, "Judge Sheedy will be instructing you that the economic damages cannot include that. They should be $700,000 or so when you do the math." Id. The court later charged the jury that, with regard to recovery expenses, "[Y]ou will compensate Ms. Streeter only for the monies she paid and she lost . . . So you are not to be concerned with what anybody else may have lost or what anybody else may have paid." Tr., 4/27/05, a.m., p. 78. Thus, it was made clear that the plaintiff could be awarded no more than $699,916.38 in recovery costs. The jury was also instructed that, if they found for the plaintiff on Count One and compensated her for emotional distress on that count, they could not again compensate her for emotional distress on Count Two even if they found EJM was liable to her on Count Two. Tr., 4/27/05, a.m., pp. 82-83.
The plaintiff argued $628,000 was the amount incurred for legal and investigative services — here and abroad — and that there were travel expenses of $67,149.92 and $4,766.46 in cell phone expenses. Exhs. 18-22; Tr., 4/2i7/05, a.m., p. 31.
Conversely, they were instructed that, if they found the plaintiff had not sustained her burden of proof on Count One but had done so for Count Two, they were to consider the plaintiff's damages for the emotional distress claimed in Count Two. Id.
As our Supreme Court has said, "The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Ham v. Greene, 248 Conn. 508, 536 (1999) (Quotation omitted; emphasis added.); see also Birgel v. Heintz, 163 Conn. 23, 28 (1972). Thus, "[a] generous award of noneconomic damages should be sustained if it does not shock the sense of justice." Johnson v. Chaves, 78 Conn.App. 342, 346-47, cert. denied, 266 Conn. 911 (2003). There is no mathematical computation available to assess noneconomic damages which, by their nature, defy exactitude. The plaintiff must, however, provide sufficient evidence for the trier to make a fair and reasonable estimate of damages. Thus, examination of a damage award is always fact intensive. Examination on a case-by-case basis is in order.
The plaintiff's treater, Dr. William Newman, testified Ms. Streeter suffered from depression, anxiety disorder, and adjustment disorder arising from the abduction to include her observations of behavioral changes in the children when first re-united with them. Such changes, Newman testified, created increased stress, anxiety, and worry and were manifested by extreme fatigue and loss of energy. Tr., 4/21/05, p.m., at pp. 8, 10-11. He described her ongoing emotional pain as she feared the potential the children might again be taken by their father who was believed to be at large in Egypt. The frustration and hopelessness of her twenty-two month search for the children was made evident by her testimony of the more than two hundred (200) days spent overseas in a frantic effort to find her children in Egypt at a time when terrorist attacks on this country (just nineteen days prior) provided a backdrop of fear and horror. "[Y]ou feel hopeless. You feel desperate. You feel you're never going to get your kids back." Tr., 4/19/05, p.m., p. 44. She testified to worry she would not `have access to funds anymore to continue to pay for investigators and lawyers to help get the kids back." Tr., 4/20/05, p.m. following recess, p. 16. She took anti-depressants and began going to therapy. Tr., 4/19/05, p.m., at 42-43. At trial, she testified to continuing worry with regard to the children's socialization and, in the case of her daughter, to academic problems as well as to their ability to form lasting relationships with life partners. The defendant concedes the children have had psychological problems — to include post-traumatic stress disorder — since their return (Motion, at 3) and that they "have suffered severe emotional injuries, which partially stem from the fact that their father told the children to say that their mother was dead." Motion, at 4. The legitimacy of the plaintiff's depression, worry, and anxiety is clear and it was underscored by her presentation during two (2) full days of trial testimony. Cross-examination neither impeached her credibility nor diminished her personal ordeal.
Given the persistence of these fears, the court rejects the defendant's repeated assertions the plaintiff has not sustained a permanent injury. See e.g., Motion, at 4.
The same is equally applicable to her damages on Count Three for loss of filial consortium. The photograph of this family's life pre-abduction was of a loving and physically active household. The plaintiff described the three of them "reading together a lot" and just doing "a lot of cool stuff . . . we had science experiments running in the kitchen . . . as much outdoor stuff as we could." Tr., 4/19/05, a.m., pp. 65, 74-77. She described going to the beach with them, kayaking, and playing in the garden ( Id., at 75). At night, "we would all line up on either one kid's bed or the other and read bedtime stories together." Id. She referred to them together as "the trolls," to her daughter as "Pumpkin," and to her son as "H-man." Id., at 77. The testimony was that she was an active participant in their schooling, sitting on the Board of Trustees at the childrens' school for five (5) years and sometimes helping out in their classrooms. Id., at 76-77. The defendant has agreed "a mother's losing 22 months of companionship and society with two young children, together with the depression and other emotional damage that accompanied that loss is a very substantial loss." (Motion, at 4) (Emphasis added.) Defense counsel, in opening argument, had this to say regarding the unlawful taking of the children, "Anyone who hears that set of circumstances, those facts and circumstances, any reasonable person would be absolutely horrified and angered at hearing that sort of prospect of innocent children being taken from their mother. There's no question about that. EJM shares those views." Tr., 4/19/05, a.m., at 10. It follows that, if liability were found in favor of the plaintiff, the damages flowing from the abduction and continuing to the present as a result of this "very substantial loss" would in fact be "very substantial." Contrary to the defendant's claim EJM was only passively involved in the kidnapping, there was a body of evidence from which the jury could have concluded EJM was an active participant — specifically, its failure to follow industry practice (according to its own expert) of "getting to know" pop-up customers before doing business with them, its agreement (by telephone) to arrange for this flight to Egypt given the many unusual circumstances (i.e., the demand the flight occur within thirty [30] hours of the call, the fact the trip was to be for just three [3] days with professional catering to be provided only on the flight to Egypt, the fact the children were to be accompanied only by an adult male [without even an inquiry whether that male was related to the children], the fact that the cost of the flight was far more than the cost of any other private charter within the experience of either of the EJM employees who testified to the arrangements [Raber and Montag], the fact that, despite knowing the destination, no effort was made to determine the existence of State Department warnings though available on the internet and known to EJM's sister company, and the fact that payment was made by a female entirely unknown to EJM, of a different last name than the children, and for whom no investigation or credit check was done. EJM did not simply stand at the gate and watch an adult male and two very young children board the airplane; it performed acts without which the abduction could not have occurred and it performed them with no investigation, on very short notice, and very profitably. In view of all that was known to EJM as a result of discovery (all of which was confirmed at trial) and given the court's pre-trial rulings, the defendant ought not have been surprised by the jury's finding of liability on all three (3) counts.
The court rejects the argument the damages were duplicative. The jury was specifically instructed for what injury damages were to be awarded, if at all, for emotional distress with regard to Counts One and Two and it was specifically instructed with regard to the claimed loss for filial loss of consortium and the injury for which they would compensate the plaintiff, if at all, for that cause of action. The court's prior rulings established that Massachusetts law, in cases involving intentional interference with the parent-child relationship, permitted recovery of damages for recovery costs, loss of filial consortium, and mental suffering. "In addition to compensation for loss of filial consortium and services, a parent may obtain damages for the cost of recovering the child as well as for `mental suffering' or emotional distress which results from the interference." Murphy v. I.S.K. of New England, Inc., 409 Mass. 842, 862 571 N.E.2d 340, 352 (1991). Further, it is — at best — incongruous for defendant now to argue the damages awarded for Counts One and Two are the very damages awarded under Count Three when, as the plaintiff points out, it was as a result of EJM's Request to Revise that the plaintiff separated her allegations of loss of consortium and emotional distress into separate counts. See e.g., Opp. Memo, at 10.
This court, thus, cannot conclude the verdict was duplicative. Nor does she conclude the verdict is inconsistent as a matter of state law. The defendant cites to a number of Connecticut cases in which a remittitur was ordered; these cases are factually distinguishable. Buckman v. People Express, Inc., 205 Conn. 166 (1987) involved a plaintiff claiming emotional distress stemming from his employer's failure to continue his health coverage upon discharge. He claimed depression, an inability to eat or sleep, that he felt upset and teary, and that he felt inadequate as a husband and father. He sustained out-of-pocket damages of $1,594.95. To that amount, the jury added $50,000 — for a total award of $51,594.95. The Court ordered a remittitur of $35,000. While the Court took issue with the defendant's characterization of the claim as "several weeks of worry" and "relatively trivial" and noted the defendant knew the plaintiff had serious health problems and needed insurance, the Court also specifically noted that, contemporaneous with the plaintiff's injury, his wife was enduring a difficult pregnancy and went to deliver the child two (2) months early ( Id., at 176), that the plaintiff made no claim or offered any proof of a permanent injury ( Id.), and that the plaintiff subsequently discovered his wife's insurance carrier would cover a portion of their medical expenses. In the instant case, there was evidence of a permanent injury and there was no event other than the abduction which contributed to the plaintiff's injuries or medical treatment. In Label Systems Corp. v. Aghamohammadi, 270 Conn. 291 (2004), the claim arose as a result of a dispute between two former employees and their former employer and company president. The employees had been terminated for the taking of company property. They applied for and were awarded unemployment compensation benefits, which award the employer appealed. The employer then brought suit against the employees for conversion; the employees brought a counterclaim and asserted claims sounding in libel, vexatious litigation, abuse of process, slander, intentional and negligent infliction of emotional distress, wrongful discharge, and intentional interference with prospective contractual relations. The jury found the employees liable for conversion under circumstances warranting punitive damages and also found the employer liable for vexatious litigation; it awarded one employee $160,000 and the other employee $60,000, which awards were automatically doubled under § 52-568(1). The employers filed a motion for remittitur which the trial court denied. Our Supreme Court, giving every reasonable presumption to the correctness of the jury awards, concluded the evidence was sufficient to support the awards and determined the trial court did not abuse his discretion in denying the remittitur. While the facts have nothing in common with the case before this court, the Court distinguished Buckman in that the employers in Label Systems did not merely fail to act but undertook affirmative acts in pressing charges and in appealing the award of unemployment benefits (as EJM took affirmative steps), in that the employees claimed lasting emotional injuries (as there was evidence of here), and in that the jury in Label Systems appeared to the Court to evidence none of the "outrage" the Buckman Court found with regard to the defendant's overall conduct there (The Court noted the jury in Label Systems rejected some of the employees' claims and reasoned that, if it were acting in outrage over the employer's conduct, it would reasonably have been expected they would have found for the employees on some others of the remaining counts). In the case before the court, the fact this jury considered EJM's special defense of comparative negligence to Count Two (as indicated by their request for readback of testimony on that issue) is evidence their verdicts were not based on "outrage" over EJM's conduct and that they considered all of the evidence.
The court agrees it is more helpful to compare this verdict with verdicts in similar cases. See e.g., Wood v. Bridgeport, 216 Conn. 604, 611 (1990); Labonte v. Hutchins Wheeler, 424 Mass. 813, 824-25 (1997). Admittedly, there is a lack of reported verdicts in child abduction cases. Thirteen (13) years ago, however, a Connecticut trial court awarded recovery costs of $86,499 and $800,000 "for the combined `package' of loss of companionship, loss of parental rights, and emotional distress" to a mother whose four (4) children had been taken from her by her husband six and one-half (6-1/2) years earlier (The mother and children remained separated at the time of trial). Marshak v. Marshak, 1992 WL 11168, aff'd, 226 Conn. 652 (1993). Noteworthy is that, as earlier stated, Massachusetts law specifically provides that loss of filial consortium and emotional distress claims are separate causes of action and thus damages flowing from loss of consortium as a result of interference with custodial relations is "additional" to (not "part of") the damages for emotional distress proximately caused by the interference. Murphy, supra, 571 N.E.2d 540, 352, 409 Mass. 842, 863 (1991). Connecticut had not formally recognized the tort of child abduction when Marshak was decided whereas Massachusetts has done so for some time now. Additionally, the defendants in Marshak were the mother, siblings, and friend of the childrens' father (the abductor); in this case, the defendant was a private charter aircraft company who profited handsomely from its conduct and whose motivation sharply contrasts with that of the co-conspirators in Marshak. EJM's conduct can thus be seen as more egregious because incited purely by corporate greed (a conclusion underscored by the testimony of Raber and Montag). EJM's citation to Arthur v. Huschke, 1999 Conn.Super. (LEXIS 2467, 1999 WL 740868 (1999) ( 25 Conn. L. Rptr. 401) is unpersuasive because a PJR award and not a jury award after a trial on the merits (Again, the defendant was the child's grandmother who permitted her son and the child the use of her second home during the fifteen [15] year absence; contrary to the present case, the defendant grandmother obtained no financial benefit from her efforts). Nor are cases granting a remittitur or punitive damage awards particularly constructive.
Though the defendant similarly concludes, it almost exclusively cites to verdicts in automobile, employment and several discrimination cases which are not as likely to stir the emotions of jurors as cases involving the disruption of family life caused by the illegal taking of children from a parent.
Murphy involved a mother's claim against the Hare Krishna religious organization regarding her teenage daughter's voluntary participation in cult activities. The jury awarded the mother $350,000 for the intentional infliction of emotional distress and $20,000 for intentional interference with her parental rights. The judgment on the emotional distress count was vacated and judgment was entered for the defendant because the trial court had erred in "allowing the jury impermissably to consider the propriety of constitutionally protected religious beliefs." 571 N.E.2d at 354.
More than eight (8) years ago, in Pittman v. Grayson et al., 1997 WL 370331 (S.D.N.Y.), a New York jury awarded a total of $15 million against a commercial airliner for its aiding and abetting a mother who flew with her two daughters from New York to Iceland in violation of a Florida court's order, thus depriving the girls' fathers of their lawful custodial rights. The claim against Icelandair was premised entirely upon the airline's claimed role in actively conspiring with the mother to transport the girls out of the country. There was no claim for loss of filial consortium; thus, on a single claim of conspiring, the New York jury awarded a verdict almost twice the amount claimed excessive here under Count One (which, in Pittman also centered on the interference with custodial rights). There is no indication in the opinion there was any claim the verdict should be set aside as excessive.
Without any reference to the amount of the verdict, the Court granted the defendant's motions to set aside the verdict and for a new trial — for reasons not here applicable. It was persuaded by the fact that, as a common carrier, Icelandair did not have an unfettered right to choose who should or should not travel and it noted common carriers were "in a much different position than other third-parties who have been held liable for assisting one parent in depriving another of his or her parental rights." Id., at 2. The Court also articulated the interplay between the public's right to travel and a common carrier's duty to transport anyone who sought to use its services for payment of an approved fee (subject now to greater restrictions in view of 9/11/01). EJM is not a common carrier; it is a contract or private carrier. See Black's Law Dictionary, Fifth Edition, p. 249. The Pittman Court also noted the tort of intereference with parental rights of custody under Section 700 of the Restatement (Second) of Torts had been recognized in various courts throughout the country (to include New York) and that, had the mother's conduct occurred more recently, it would have been in violation of 18 U.S.C. § 1204, the 1994 federal legislation prohibiting parental kidnapping. Id., at 3.
The claim the verdict is excessive as a matter of federal constitutional law is rested upon the premise the verdict was a punitive verdict so excessive as to be violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Consideration of the three factors appropriately analyzed in determining the constitutionality of a punitive damages award (as enunciated in BMW of North America, Inc. v. Gore, 517 U.S. 559), is here misplaced. BMW was a fraud case brought by the purchaser of a new BMW against a car manufacturer and dealer based upon the dealer's failure to disclose that the car had been repainted after being damaged prior to delivery. The jury had awarded $4 million in compensatory damages and $4 million in punitive damages. The Alabama Supreme Court conditionally affirmed an award of punitive damages but reduced the award of the same to $2 million. The U.S. Supreme Court reversed and remanded, finding the award grossly excessive in light of the low level of the dealer's reprehensibility of conduct and the 500 to 1 ratio between the award and the actual harm to the buyer. Gore's expert claimed the car was worth $4,000 less (or 10% of what Gore paid) than it would have been had it not been refinished. Significant was that Gore had driven the car for nine (9) months without noticing any flaw in its appearance and that he only learned of the same when he brought the car to an independent dealer to make it look "snazzier." Id., at 563. The Court found the pre-sale work had not affected the car's performance, safety features, or appearance and further found BMW's conduct in not disclosing "evinced no indifference or reckless disregard for the health and safety of others." Id., at 560. Relevant — as the Court noted — was that the maximum civil penalty under Alabama law for violation of its Deceptive Trade Practices Act was $2,000.
As earlier stated, this jury made two (2) awards based upon two (2) different causes of action. In this court's view, it is therefore more appropriate to consider a verdict for $10 million and a verdict for $17 million as opposed to aggregating them as if the jury returned a single verdict and did not consider the differing losses to the plaintiff as permitted under Massachusetts law.
Those three factors are degree of responsibility, the ratio between the amount of punitive damages awarded and the actual harm inflicted, and the comparison between the questioned award and penalties imposed in similar cases.
The U.S. Supreme Court noted the Alabama Supreme Court interpreted the jury award of punitive damages as largely reflective of conduct outside the state of Alabama and noted the absence of any evidence of the same in that state. Thus, its inappropriateness. Id., at 573-74.
EJM's assumption the verdict was punitive is based solely upon the amounts of the two (2) awards. No evidence was offered this court at argument or in the briefs to support a finding the jury awards were intended to punish. In fact, this court inquired of counsel at argument whether there had been any communications with jurors following the verdict and the response was in the negative. Thus, EJM can point to no juror comment or conduct in support of its contention the jury was intent on punishment or acted so as to send EJM a message. Nothing in the jurors' conduct throughout trial permits the conclusion they were other than thoughtful, fair-minded people who carefully considered the evidence (to include evidence offered in support of the defendant's special defense) and the charge on the law. They deliberated for approximately eight (8) hours over two (2) days. Moreover, nothing in the jurors' comments to the undersigned following the verdicts indicated a collectively vindictive spirit.
The general presumption in favor of upholding jury verdicts recognizes both that the amount of jury verdicts is a matter peculiarly within the province of the trier of fact and that the assessment of non-economic damages is particularly difficult because inherently subjective in nature and not susceptible to mathematical precision. See e.g. Shegog v. Zabrecky, 36 Conn.App. 737, 752-53 (1995). The task before this jury was made more difficult because it required the valuation of non-economic injuries resulting from the loss of what is arguably the most honored and deeply felt relationship in our society — the relationship between parent and child — and the emotional distress proximately caused by the tortious interference with a parent's custodial rights. That the amounts awarded were considerably higher than EJM anticipated offers no reason to set them aside under our law. Nor is the fact they were generous sufficient reason to set them aside. Having viewed the jury and listened to the evidence over more than two (2) weeks of trial and having observed the witnesses and assessed their credibility, this court was not surprised at the jury's return of very significant verdicts. The plaintiff presented a straightforward history of events as they occurred and of family life as it existed pre- and post-abduction and recovery; there were no histrionics and no blatant attempt to appeal to the jury's sympathy. In fact, the court cannot recall the plaintiff ever crying though she quietly dabbed at her eyes on one occasion. Permitting the facts to speak for themselves, in this court's view, earned the plaintiff the jury's admiration. She showed no anger and demonstrated no hostility toward either defense counsel or EJM — not when she was examined with an eye toward the special defense of comparative negligence, not when an EJM employee testified it mattered not whether the children's mother knew of or consented to the flight, and not when, following the abduction, EJM would share no information with her (Her testimony was that the details of the flight were learned only through the discovery process). For two (2) full days of testimony, she demonstrated a personal strength that made clear how it was she was able to overcome the poverty of her emotional spirit during the twenty-two (22) months without her children. Any observer of human behavior could discern the jury's admiration for her; that the jury found her to be honest, credible, and persuasive was not at all surprising to the court — and should not have been surprising to the defendant.
The claim was based upon her failure to obtain from her ex-husband the children's passports when she learned — one week prior to the abduction — that he had taken the children to Cuba (and not to the Bahamas as she had been told) in August of 2001. There was then no restriction on his travel with the children; the children were safely returned to her following that trip to Cuba, and, under the Parenting Plan, he had one (1) week to return the passports. Her immediate response to learning of the trip to Cuba was to contact her lawyer to schedule an emergency court hearing so as to prevent the father from again taking the children out of the country. It was the plaintiff's belief the abduction occurred so as to avoid a court order restricting the father's travel with the children.
This court has carefully considered the defendant's request for remittur. Having done so, however, she cannot conclude, given all of the evidence before this jury, the verdicts shock her sense of justice. Nor is there any reason to conclude the jury was influenced by partiality, prejudice, mistake, or corruption. Nothing in their conduct suggested any impropriety nor has defendant offered any evidence of the same. Considering the evidence in the light most favorable to the plaintiff, as this court must, she concludes these verdicts — given the evidence, the defendant's conduct, the unique relationship between parent and child, and the losses and injuries sustained — fall "somewhere within the necessarily uncertain limits of fair and reasonable compensation." Bruneau v. Seabrook, 84 Conn.App. 667, 672-74 (2004). No reason presents for this court to substitute her judgment for that of the jury to whom the parties entrusted this unique case and thus to become the seventh juror. Where, as here, there was sufficient evidence for the jury to find as it did, the litigants' right to have factual issues determined by a jury is sufficient reason for this court not to tamper with its assessment of damages.
Our Supreme Court has said that right "embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded." Ham v. Greene, 248 Conn. 508, 536 (1999).
Motion for Assessment of Prejudgment Interest (#209)
The plaintiff has moved, under Mass. Gen. L. ch. 231, § 6B, that interest on the verdict be assessed at the rate of twelve percent (12%) from the date this action was commenced (May 15, 2002) through entry of judgment. That statute, entitled "Interest added to damages in tort actions," reads:
Plaintiff's motion incorrectly identifies the date suit was instituted as May 15, 2005. Ex. 1 to the instant motion clarifies the date.
In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.
Plaintiff asserts the assessment of this interest is a substantive right and should be awarded based on the law which governed the underlying claims. See e.g., Hobart v. O'Brien, 243 F.2d 735, 744-45 (1st Cir. 1957). EJM has objected and claims: 1) the motion is untimely under P.B § 16-35; 2) prejudgment interest is a procedural matter controlled by Connecticut law; and 3) even if prejudgment interest is a substantive matter, a separate conflict of laws analysis applies to prejudgment interest under the doctrine of depecage and that analysis favors the application of Connecticut law.
Conceding P.B. § 16-35 is not a model of clarity, defendant has argued this motion is untimely because a post-verdict motion that was not filed within ten (10) days of acceptance of the verdict (April 28, 2005) or by May 31 (the date to which the court extended the time by which EJM was to file its post-verdict motions) or by July 5 (the date to which the court extended the May 31 filing deadline). The court rejects this argument. By its terms, that section applies to motions in arrest of judgment — whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur, motions for additur, motions for new trials, and motions for collateral source reduction brought under C.G.S. § 52-225a. Thus, § 16-35 does not, as defendant argues, announce a rule of general applicability but is limited to seven (7) very specific motions — none of which is the motion in question. See defense counsel's own statement in "Authors' Comments" in the Practice Book Annotated, Comment 3, p. 565. Neither of the two (2) cases cited by EJM is relevant; Small v. South Norwalk Savings Bank, 205 Conn. 751 (1988), affirmed a denial of a motion to set aside as untimely under a predecessor statute and Morgan Guaranty Trust Co. of New York v. Third National Bank of Hampden Co., 545 F.2d 758 (1st Cir. 1977), affirmed the trial court's denial of a motion to amend a computation of interest assessed as per M.G.L.A. c. 231 § 6B because that motion to amend was, under the Federal Rules of Practice, a 59(e) motion required to be served not later than ten (10) days after entry of the judgment and the motion before the court was filed forty-nine (49) days alter the order entering judgment. § 6B contains no such time restraints nor does it require prior notice by the moving party. Additionally, a P.B. § 16-35 motion is directed to the verdict; it seeks to overturn or alter the verdict whereas prejudgment interest is directed to the judgment. Finally, our own Appellate Court has weighed in on the question when a motion requesting interest should be filed. At issue was C.G.S. § 37-3b which concerned postjudgment interest. Of that statute, the Court, in Bower v. D'Onfro, 45 Conn.App. 543 (1997), noted it did not provide for any time limit by which the motion must be filed nor did any other statute or rule of practice. Id., at 549. It noted, "Common sense also dictates that a party seeking an award of postjudgment interest must file a post-trial motion because the award can be determined only after judgment has been rendered." (Citations omitted.) Id. Because, in the instant case, this court still has jurisdiction and because this court knows of no rule or statute requiring the plaintiff to file her motion by any of the dates suggested by defendant, the court is unpersuaded by the defendant's argument and rejects as entirely inappropriate its suggestion the plaintiff ought be sanctioned for filing the motion when she did. Nor does this court find defendant's argument of prejudice relevant in view both of the absence of any time restriction under either Massachusetts or Connecticut law and in view also of the fact there can be no prejudice so long as the defendant has been afforded a right to be heard before adjudication of the motion, a right EJM has here exercised. The question whether the assessment of interest raises a substantial or procedural issue for the purpose of determining whether the law of Massachusetts or Connecticut should govern is more complex. The plaintiff cites to Hobart, supra, in arguing prejudgment interest is substantive in nature and, since this court has consistently held Massachusetts law governs all substantive issues, § 6B should apply. EJM cites to Paine Webber Jackson and Curtis, Inc. v. Winters, 22 Conn.App. 640 (1990), in support of its claim § 6B is procedural. There, the Court concluded this state's offer of judgment statute, § 52-192a, was "a procedural rule, punitive in nature, and enacted to promote fair and reasonable pretrial compromises of litigation." Id., at 651. (Citations omitted). It concluded, however, that § 37-3a, which allows the court, in its discretion, to award prejudgment interest for the wrongful retention of money, was "a substantive law that required an analysis of the merits of the underlying claim" and pursuant to which any interest ordered was an element of the damages awarded on debts owing. Id., at 651-52. In the Court's view, the pertinent question was whether, in determining the applicability of an interest statute, the court need undergo an analysis of the underlying circumstances or a determination of the facts. Id., at 653. Thus, § 52-192a was procedural in its view because, under that statute, the interest awarded was not discretionary, was independent of the judgment unrelated to any substantive issue, and "related only to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." Id., at 653-54. Similarly, EJM argues, § 6B involves no discretion by the court, can be calculated only after judgment has been rendered, is awarded upon a post-trial motion, and requires no analysis of the underlying circumstances or determination of facts. Under Paine Webber, EJM argues, § 6B can only be a procedural rule and, thus, the rule of the forum should govern.
Horton and Knox, in their commentary in the annotated version of the Practice Book, posit motions in arrest of judgment for extrinsic causes are directed to juror misconduct and motions in arrest of judgment for causes apparent on the record are directed to insufficient complaints. Comments 3 (1) and (2), p. 566.
EJM is here silent as to the practical effect of applying Connecticut prejudgment interest law except to offer that interest, as an element of damages, requires a jury trial under Foley v. Huntington Co., 42 Conn.App. 712, 738 (1996). Opp. Memo, at 5. Nor would § 52-192a apply since no offer of judgment was ever filed.
To argue that "the law of the forum applies to procedural issues" (Opp. Memo, at 3) ignores what Paine Webber has described as "the vexing question of which rules are `procedural' and which `substantive'" ( 22 Conn.App., at 640) — particularly because "`substance' and `procedure' are the same keywords to very different problems." Id. (Citations omitted.) Streeter's response to the defendant is that § 6B is substantive because, unlike § 52-192a, prejudgment interest awards under § 6B are not designed to penalize a party for not having accepted an offer of judgment and thereby wasting judicial resources but are instead awarded as a matter of right. See Bennett v. City of Holyoke, CT Page 12182 362 F.3d 1, 15 (1st Cir. 2004). The purpose of awarding § 6B interest is "to compensate a damaged party for the loss of use or the unlawful detention of money." McEvoy Travel Bureau, Inc. v. Norton Co., 480 Mass. 704, 717 (1990). Thus, viewed in this light, § 6B has little in common interim of its scope or purpose with this state's offer of judgment statute; in fact, the Paine Webber Court distinguishes between an offer of judgment statute and one for prejudgment interest. "Nor will we refuse to apply § 52-192a because our courts have sometimes labeled this a rule of `prejudgment' interest . . ." 22 Conn.App., at 651. This court is thus left with a Massachusetts court's description of its own statute as compensatory (and therefore "substantive") and the Paine Webber view that, because an award of § 6B interest requires no analysis of underlying issues, the rule is procedural.
The Court also noted that, in the idiom of section 185(d) — remedies available to whistleblower plaintiffs such as the Bennett plaintiff was — prejudgment interest under § 6B was a "remed[y]" available in common-law tort actions in Massachusetts. Id., at 15.
EJM urges a separate conflict of laws analysis under the doctrine of depecage. "Depecage" is an invention of the courts that provides a "framework under which different issues in a single case . . . may be decided according to the substantive law of different states." (Internal quotation marks and citations omitted.) Reichhold Chemicals, Inc. v. Hartford Accident Indemnity Co., 252 Conn. 774, 783 n. 5 (2000). Contrary to EJM's assertion, Connecticut did not expressly adopt the doctrine of depecage in Reichhold nor is it a universally accepted doctrine. This court questions whether prejudgment interest is a standalone issue capable of a choice of law analysis independent of the damages choice of law determination she earlier made and iterated when she charged the jury. That question may, however, be moot because, for reasons next here to be discussed, this court concludes Massachusetts law applies whether depecage is employed or not.
The Restatement (Second) of Conflict of Laws § 171 comment (c) (2005) states, "The law selected by application of the rule of Restatement § 145 determines whether the plaintiff can recover interest and, if so, at what rate for a period prior to the rendition of judgment as part of the damages for a tort." EJM returns to its analysis of §§ 145 and 6 of the Restatement and concludes as it did in its JNOV brief that Connecticut law should be applied. Here, EJM has specifically identified our offer of judgment statute — § 52-192a — as the applicable statute and it correctly noted Streeter had the opportunity to file an offer of judgment when she brought suit — but did not. It further noted factor (f) of § 6 of the Restatement — certainty, predictability and uniformity of result — weighs in in favor of Connecticut because applying prejudgment interest statutes assessing different interest rates and mandating requests be made at differing procedural intervals can create unpredictability; in that sense, EJM argues, applying Connecticut law protects the parties' justified expectations (§ 6[d]). This court disagrees, however, that application of this state's prejudgment interest statute promotes the needs of the interstate and international systems (factor [a] of § 6) or that it promotes the basic policies underlying the field of tort law (factor [e]). In fact, since damages awarded an injured person are intended to make whole that person (to compensate as opposed to punish), the argument is clearly stronger that that factor prompts the application of § 6B. For all of the reasons this court has earlier stated in her ruling of 12/27/04, consideration of § 145 factors weighs heavily in favor of Massachusetts. It strikes this court as entirely inappropriate to apply this state's offer of judgment statute in a case in which no offer of judgment was filed, when neither party is a citizen of this state, when the injured party is a Massachusetts resident who has continuously resided there with her family, when the act which initiated the abduction was performed there, and where the relationship between the plaintiff and her children (indeed the relationship between the children and their father) was centered. To conclude either § 52-192a or § 37-3a should govern does not promote this state's interests while it totally ignores Massachusett's interest in affording its citizens the full measure of damages its law provides. Further, it rejects the view of Massachusetts courts that the purpose of M.G.L. § 6B is to compensate an injured person. Relevant perhaps is that, while our Paine Webber Court has enunciated a test which prompts the conclusion both § 52-192a and M.G.L. § 6B are procedural, the same Court concludes eleven years later that prejudgment interest is an element of damages designed to compensate plaintiffs. See Flynn v. Kaumeyer, 67 Conn.App. 100, 105 (2001).
This court finds persuasive Valley Juice Ltd. v. Evian Waters of France, Inc., 87 F.3d. 604, 614 (2d Cir. 1996). Upholding a Connecticut federal court's award of prejudgment interest pursuant to New York law in a case in which New York substantive law was applied, the Second Circuit had this to say:
Connecticut follows the Restatement's approach with respect to prejudgment interest, and applies "[t]he local law of the state selected by [applicable choice of law principles to] determine whether plaintiff can recover interest, and, if so, the rate, upon damages awarded him for the period between breach of contract and the rendition of judgment." Restatement (Second) Conflict § 207 cmt. e; see Paine Webber Jackson Curtis, Inc. v. Winters, 579 A.2d 545, 551-53, 22 Conn.App. 640, 651-52 (1990) (sic).
The conclusion § 6B applies flows from this court's earlier decisions and is consistent with the application of the Restatement (Second) Conflict of Laws, Sections 6, 145, 171, and 207. The motion for assessment of interest under that statute is granted.
Setoff
The parties have stipulated to the following:
1) This action was instituted by the plaintiff on her own behalf and on behalf of her two minor children. She sought damages for herself and her children claiming emotional distress, loss of filial consortium, and costs of recovery. In addition to EJM and Anwar Wissa, Jr. (her ex-husband and the children's father), she sued Rifton Management, LLC, Bruderhof Communities in New York, Inc., and Enid Wissa (the children's grandmother). The case was dismissed as to the children. Before the trial of this matter, the plaintiff settled with Rifton and Bruderhof "on her own behalf and on behalf of H and V" for seventy thousand dollars ($70,000). Ex. 1 of Stipulation. The case against Enid Wissa was withdrawn.
2) The plaintiff also brought suit against Hope Amanda Smith and Enid Wissa in Superior Court in Massachusetts on July 21, 2003. Ms. Smith paid all or virtually all of the cost of the flight from Connecticut to Egypt. That complaint was brought on behalf of Ms. Streeter and on behalf of her children. Damages were sought for emotional distress, loss of filial consortium, false imprisonment of the children, and recovery costs. That case was settled as against Smith for payment of $450,000 to an irrevocable trust solely for the children. No payment was made by Enid Wissa in this action in return for her release.
3) Streeter brought suit on her own and the children's behalf in district court in Miami, Florida, as against Anwar Wissa, Sr. (the children's grandfather) and Ardaman Associates, Inc. (the employer of Wissa, Sr. and Wissa, Jr.) and Enid Wissa, seeking damages for emotional distress, loss of filial consortium, false imprisonment of the children, and recovery costs. In settlement of this action, Wissa, Sr. paid personally to Streeter the sum of $475,000 on behalf of himself and Enid (There was no payment by Ardaman.). Additionally, Wissa, Sr., in settlement of the children's claims, transferred full ownership of a life insurance policy on him to an irrevocable trust for the children to be established by the plaintiff-mother. The parties have stipulated the present value of that policy is $90,000.00.
The defendant claims entitlement to setoffs for all amounts except the $90,000 present value of the life insurance policy — or $995,000 ($70,000 + $450,000 + $475,000) under M.G.L.c. 231B, § 4. Streeter claims the only setoff properly applied is the $70,000 Rifton and Bruderhof paid to settle the claims against them in this suit. No direct apportionment claims have been asserted in this action.
EJM's original claim for setoff was made as part of its JNOV brief dated 5/31/05; there, it made claim under the Massachusetts statute cited and/or C.G.S. § 52-216a. In its supplemental memorandum dated 9/20/05, EJM abandoned its claim under Connecticut law entirely.
M.G.L. § 4 provides for post-verdict setoffs when one joint tortfeasor has been released from further liability in tort for the same injury to a person or property. In pertinent part, it provides:
When a release or covenant not to sue or not to enforce judgment is given in good faith to one or two or more persons liable in tort for the same injury: (a) It shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide; but it shall reduce the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater[.] (b) It shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
The parties agree setoff in the amount of $70,000 paid by Rifton and Bruderhof in this action is appropriate and the court so finds.
Regarding the payment by Smith of $450,000 in the Massachusetts action, the plaintiff claims EJM has no entitlement to this as setoff because no payment was made directly to Streeter. Streeter claims that, under § 4(a), EJM must show: (1) payment to Streeter for a release from her; and (2) that such payment was made to a joint tortfeasor for the same injuries as that for which the jury has awarded damages.
The unredacted version of the Settlemnent Agreement in the Massachusetts action (dated 12/22/04) states it is by and between Hope Amanda Smith (who paid for the flight) and Hope Noyes Smith (Hope Amanda Smith's mother- not a part to any action brought by Streeter) on the one hand and this plaintiff "on her own behalf and on behalf of her children H and V" and various other non-parties to any action. Paragraph 3.3 therein provides "Streeter, on her own behalf and on behalf of H and V" . . . "release(s) and forever discharge(s)" Hope Amanda Smith and her mother "from and against all actions, causes of action, claims, suits, debts, damages . . . and demands whatsoever . . . that Streeter, H and V may have or may have had at any time . . ."
They include the plaintiff's mother and various Streeter family trusts and trustees of those trusts.
Streeter cites Noyes v. Raymond, 28 Mass.App.Ct. 186, 190 (1990) for the proposition courts may not rewrite express terms of settlement agreements for purposes of applying this statute. Opp. Memo, at 5. While the Massachusetts Court does not there expressly so state, the proposition is sound. What the Court does state is, "The fact that the amount of a settlement is low in comparison to the plaintiff's estimate of her own damages, by itself, is, however not material." Id. The parties dispute whether this settlement was made "in good faith" as that phrase is used in § 4. The Court in Noyes speaks directly to that:
A rule whereby a determination of lack of good faith could be based only on the amount of a settlement would "require trial courts to apply an unworkable standard to every settlement. It [would] clog our trial courts with unnecessary hearings, discourage the settlement of legitimate claims, and severely strain the resources of the parties and the trial and appellate courts of this state." (Citation omitted.) Id., at 191.
This court rejects the suggestion the defendant here attempts to rewrite the settlement agreement. That the plaintiff chose to have all of the settlement funds put into a trust for her children does not change the fact she voluntarily released all of her claims as well as those of her children. No reason presents why the defendant under these circumstances should be penalized when, as here, the defendant was not a party to the agreement and when the released claims and causes of action are the very claims and causes of action for which the plaintiff was here compensated. The right of a joint tortfeasor not so released (such as EJM) "is merely to have the value of any consideration given for such a release subtracted from the total of damages found to have been suffered by the victim." (Citations omitted.) Grace v. Buckley, 13 Mass.App.Ct. 1081, 435 N.E.2d 655, 657 (1982). The amount paid by Smith — $450,000 — is a setoff on the judgment here entered against EJM.
With regard to the $475,000 paid "to Nina" in settlement of the Florida lawsuit (Ex. 2, Section 1.1), that too was for a release of "all actions, causes of actions, claims, suits, damages . . . whether now known or unknown . . ." this plaintiff had against Anwar Wissa, Sr. and his wife, Enid Wissa. Id., at 3.3. It is of no relevance that that was paid by an insurance company; it was paid on behalf of the Wissas. Streeter claims the payment by that carrier covered only the false imprisonment claim (Opp. Memo, at 8); she cites to Ex. A attached at DW 2296 (a page from the insurance policy). DW 2296 does not establish that the policy covered only false imprisonment; it provides personal liability coverage for "personal injury or property damage caused by an occurrence during the policy period." Id. "Personal injury" includes "bodily injury," "shock, mental anguish, or mental injury" and "false imprisoment." Id. Three counts are asserted in that action — interference with custodial relations, false imprisonment and conspiracy. Streeter claimed a loss of filial consortium, mental suffering, trauma, and manifestations of emotional distress, as well as recovery costs. Count One, Para. 48. Thus, the injuries "to Nina" for which the carrier paid are the same injuries here asserted as flowing from the abduction. Streeter executed a release of all claims asserted — and all that could have been asserted — without regard for whether they were negligent or intentional acts. The plaintiff attempts to impose upon the defendant a burden neither § 4 nor the case law interpreting the same imposes. Under the circumstances, not to permit a setoff of $475,000 is to result in a windfall for the plaintiff.
Total setoff is in the amount of $995,000.
The clerk of the court is ordered to enter judgment of twenty-seven million dollars ($27 million) in favor of the plaintiff as against EJM, then to assess prejudgment interest on that amount at the rate of 12% for the period beginning May 15, 2002, and ending this date, and then to deduct from that total sum the amount of $995,000 in setoff.
Under M.G.L.c. 231, § 6B, prejudgment interest is computed on the entire amount of the verdict rather than on a net verdict after deduction of a setoff. See Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 12 (1st Cir. 1983); Harvey v. Essex Bancorp, Inc., 25 Mass.App.Ct. 323, 325 (1988).
So ORDERED.