HAYNES v. YALE-NEW HAVEN HOSPITAL, 243 Conn. 17 (1997)

699 A.2d 964

(SC 15470)Supreme Court of Connecticut

Callahan, C.J., and Borden, Berdon, Katz, Palmer, McDonald and Peters, Js.[1]

Syllabus
The plaintiff administratrix sought to recover from the defendant hospital and the defendant physician for the wrongful death of her mother, who had been brought to the hospital emergency room after being hit by a

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vehicle driven by P. The plaintiff, who had recovered $20,000 in insurance benefits from P’s liability insurer and $630,000 in underinsured motorist benefits from her mother’s insurance carrier, alleged that the defendants had committed medical malpractice in treating her mother for her injuries and that the hospital had violated the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). The trial court granted the defendants’ motion for summary judgment, and the plaintiff appealed from the judgment rendered thereon. Held:

1. The trial court properly concluded that, because the plaintiff had been fully compensated for her mother’s death by the insurance, the common law rule barring double recovery precluded her from pursuing her malpractice claim; contrary to the claim raised by the plaintiff, under the circumstances here the underinsured motorist benefits that she had recovered from her mother’s insurer, although contractual in nature, should not be treated as a collateral source.

(Three justices dissenting)
2. The trial court properly granted the motion for summary judgment on the plaintiff’s CUTPA claim because no unfair or deceptive entrepreneurial or business practices were alleged; a medical malpractice claim recast as a CUTPA claim cannot form the basis for a CUTPA violation.

Collateral source rule, discussed.

Argued February 20, 1997

Officially released August 26, 1997

Procedural History
Action, in four counts, to recover damages for, inter alia, the wrongful death of the plaintiff’s decedent, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Gordon, J., granted the defendants’ motion for summary judgment as to the first count; thereafter, the court granted the defendants’ motion to dismiss the remaining counts of the complaint and rendered judgment thereon; subsequently, the court vacated its order granting the defendants’ motion for summary judgment and opened the judgment of dismissal, and thereafter granted the defendants’ renewed motion for summary judgment on all four counts of the complaint and rendered judgment thereon, from which the plaintiff appealed. Affirmed.

James E. Swaine, for the appellant (plaintiff).

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Mark R. Kravitz, with whom were Jeffrey R. Babbin and, on the brief, Penny Q. Seaman and Thomas J. Witt, for the appellees (defendants).

Philip J. O’Connor filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

Opinion
BORDEN, J.

The dispositive issues in this appeal are whether: (1) underinsured motorist benefits fall within the common law collateral source rule; and (2) the medical malpractice allegations in the complaint are sufficient to state a claim for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff, Susan M. Haynes, as administratrix of the estate of her mother, the decedent Barbara S. Freeman, brought an action against the defendants, Yale-New Haven Hospital (Yale-New Haven) and Charles F. McKhann, a surgeon, alleging medical malpractice and CUTPA violations.[2] The trial court granted the defendants’ motion for summary judgment and the plaintiff appealed from the judgment rendered thereon.[3] The plaintiff claims that the trial court improperly concluded that: (1) on the first count, the plaintiff could not prevail because of the common law bar against double recovery for the same loss; and (2)

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on the second count, the plaintiff’s allegations were legally insufficient to state a CUTPA violation. We affirm the judgment of the trial court.

The record reveals the following facts. The plaintiff’s decedent was employed as a rural letter carrier for the United States postal service. On May 14, 1986, while in the course of her duties as a postal worker, the decedent was seriously injured when her vehicle was struck head-on by a vehicle driven by Alan G. Perrier. An ambulance transported the decedent to Yale-New Haven for emergency medical treatment. She was admitted to Yale-New Haven’s emergency department at approximately 12:40 p.m. and began receiving emergency medical care for a fractured left leg and a fractured pelvis. At approximately 2:15 p.m., after being in the care of the hospital for approximately one and one-half hours, the emergency room doctors noticed that the decedent was experiencing “`an expanding abdominal girth.'” Upon this discovery, the decedent was transported to the operating room for emergency exploratory surgery. At approximately 2:30 p.m., McKhann began the surgery and, upon opening her abdomen, he discovered large amounts of blood as a result of the laceration of her spleen, which he then removed. During the surgery, however, the decedent’s circulation failed and she went into cardiac arrest. McKhann was unable to resuscitate her heart and the decedent was pronounced dead at 3:41 p.m.

The plaintiff first brought an action against Perrier, the driver of the vehicle that had struck the decedent’s vehicle, for wrongful death and other compensatory damages. The plaintiff received $20,000 from Perrier’s insurer, an amount that represented the limit of his automobile liability insurance policy. After exhausting Perrier’s policy coverage, the plaintiff then pursued a claim against Covenant Insurance Company (Covenant), the decedent’s automobile insurance carrier,

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which provided uninsured and underinsured motorist coverage (underinsured motorist coverage)[4] in the amount of $900,000. Unable to settle the matter, the parties submitted the plaintiff’s underinsured motorist claim to arbitration under the provisions of the decedent’s insurance policy. Covenant conceded Perrier’s liability, and the parties stipulated that the only issue before the arbitration panel was the amount of damages for the decedent’s wrongful death. A panel of three arbitrators determined the damages to be $650,000.[5]
Covenant paid the plaintiff $630,000, after deducting the $20,000 that the plaintiff had recovered from Perrier’s liability carrier.

The plaintiff then commenced this action against the defendants. In the medical malpractice count, the plaintiff sought damages against both defendants on the grounds that they allegedly had failed to meet the requisite standard of care in applying emergency room care to the decedent, that the emergency department was inadequately staffed, and that the existing staff was inadequately trained and supported. In the CUTPA count, against Yale-New Haven only, the plaintiff alleged that Yale-New Haven had engaged in unfair and deceptive trade practices because, although the hospital was certified as a major trauma center, it had failed to meet the requisite standards of care for such a center for essentially the same reasons stated in the medical malpractice count. The defendants filed a special

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defense to the medical malpractice count, alleging that the plaintiff had already received full compensation for the harm suffered by the plaintiff’s decedent. Yale-New Haven essentially denied the allegations of the CUTPA count.

The trial court granted the defendants’ motion for summary judgment on the medical malpractice count because it concluded that as a result of the plaintiff’s having been fully compensated for the death of her decedent, she was precluded from pursuing this claim against the defendants by the common law rule barring a double recovery for the same injury. In addition, the trial court rendered summary judgment on the CUTPA count, based upon the reasoning that a malpractice claim cannot be recast as a CUTPA claim. This appeal followed.

I
We first address the plaintiff’s argument that underinsured motorist benefits, because of their contractual nature, are not within the ambit of the common law rule precluding double recovery for the same harm,[6] but, rather, come within the common law collateral source rule.[7] Accordingly, the plaintiff argues that the trial

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court improperly rendered summary judgment on the malpractice count. The defendants argue that the trial court properly found the rule barring double recovery for a single harm to be controlling. We agree with the defendants.[8]

This case forces us to confront the tension between two competing principles. The first is that a tortfeasor should not be rewarded by collateral sources that have benefited an injured party. This principle recognizes the social value in making the tortfeasor pay the injured party even for already “compensated” losses in order to prevent a windfall to the tortfeasor; 2 S. Speiser, C. Krause A. Gans, American Law of Torts (1985 Sup. 1997) § 8.16, p. 526; and to fulfill the general tort policy of deterring similar tortfeasors from wrongful conduct. W. Prosser
W. Keeton, Torts (5th Ed. 1984) § 4, pp. 25-26. The second, competing principle is that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a

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waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste. See, e.g., 4 G. Palmer, Law of Restitution (1978 Sup. 1997) § 23.15, p. 437. The question we must decide is which of these two policies should control in the present case.

The plaintiff contends that this conflict is resolved by the contractual basis of underinsured motorist payments. She argues that, because Covenant’s liability was based entirely upon its contract with the decedent, all payments made pursuant to the underinsured motorist insurance policy should be viewed as purely contractual in nature. Thus, according to the plaintiff, the collateral source rule should apply.

We are not persuaded that payments made pursuant to an underinsured motorist contract can be so easily classified. In our view, underinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages. Whether in any particular case underinsured motorist benefits should be treated as are other types of insurance must depend on a case-by-case analysis of the underlying purpose and the principles that apply to such benefits.

It is true that Covenant would have had no liability to the plaintiff’s decedent but for the existence of the insurance contract, and that, generally speaking, an action by an insured against an underinsured motorist carrier is in form “an action in contract.” Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997). We do not dispute, moreover, that the collateral source rule would apply to various other contractual insurance payments, such as life, disability, or medical insurance. Underinsured motorist insurance, however, is unlike those traditional types of insurance, all of which pay upon proof of the occurrence of the

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particular loss insured against, irrespective of the legal liability of others for causing that loss. Although in form first party insurance, underinsured motorist insurance operates in part as a surrogate for a third party who lacks sufficient liability insurance. It provides benefits only upon proof that a third party, namely, an underinsured motorist for whose liability it acts as a surrogate, was a tortfeasor who injured the insured. Moreover, the amount of an underinsured motorist payment is determined, within contractual limits, by the measure of tort damages. See Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 368, 641 A.2d 783
(1994) (in order to recover under underinsured motorist policy, insured must prove amount of damages and that other motorist was underinsured and legally liable).

Thus, underinsured motorist benefits, although contractual in nature, operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor. We recognize that an underinsured motorist carrier “is not the alter ego of the tortfeasor and . . . they do not share the same legal [status].”Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010
(1997). Mazziotti, however, dealt with the question of whether an insured’s underinsured motorist insurance carrier and a third party tortfeasor should be deemed in privity with each other for purposes of the doctrine of collateral estoppel. Id., 810-19. The fact that the carrier and the tortfeasor do not share complete legal identity, and thus are not in privity with each other, does not automatically resolve the narrower question of how payments made pursuant to an underinsured motorist policy should be treated.

We do not mean to imply that claims for underinsured motorist payments must be viewed solely as sounding in tort, and not in contract. Neither classification is

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appropriate for all cases.[9] Because underinsured motorist claims are sui generis, we need to go beyond labels in resolving the question posed by this case.[10]
Put another way, the question is not whether underinsured motorist

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benefits are a collateral source; the question is whether they should be treated as a collateral source, in the present factual context. We must, therefore, examine the purpose that underinsured motorist coverage is meant to serve, and decide how, as a matter of policy, including consistency with related legal principles, that specific type of insurance should be treated. We conclude that, for the particular purpose of characterizing underinsured motorist payments, the relationship in the present case between the underinsured carrier and the defendant may be viewed as analogous to that of joint tortfeasors,[11] and thus that the general tort rule precluding double recovery from joint tortfeasors should apply.

We begin with the fundamental principle that the purpose of underinsured motorist insurance is to place the insured in th same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured. “The public policy established by the [under]insured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the [under]insured motorist had maintained [an adequate] policy of liability insurance.” (Internal quotation marks omitted.)

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Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18, 615 A.2d 1032 (1992); see also Williams v. State Farm Mutual Automobile Ins. Co., supra, 229 Conn. 366-67; Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993). The plaintiff’s argument, however, would have her recover more than her full damages — indeed, that is the whole point of her action against the defendants — solely because of her decedent’s underinsured motorist coverage. For example, had the tortfeasor motorist not
been underinsured, but instead had had adequate liability insurance, the plaintiff would have been required to bring an action against both that tortfeasor and the defendant in order to recover $650,000 for her decedent’s death,[12] which would be assessable against either or both the defendants’ and the motorist’s liability carrier. In that scenario, the plaintiff could have recovered, from either or both the tortfeasor and these defendants, a total of $650,000 and no more. As the plaintiff conceded in this court, she could not have proceeded against her decedent’s underinsured motorist carrier at that point. Under the plaintiff’s argument, however, she is in better position because her decedent had been struck by an underinsured driver than she would have been had the same driver been fully insured. Pursuant to the plaintiff’s argument, she can recover $650,000 against her decedent’s underinsured motorist insurance carrier, and then recover additional compensation from the defendants. This increase in compensation is contrary to the fundamental purpose of underinsured motorist coverage.[13]
See Gionfriddo v. Gartenhaus Cafe,

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211 Conn. 67, 71-72, 557 A.2d 540 (1989) (applying no double recovery principle to bar action under Dram Shop Act where plaintiff had already recovered full measure of damages from other, unrelated tortfeasor).[14]

Furthermore, the plaintiff’s putative right to recover against the defendants in the present case, for the loss that her decedent’s underinsured motorist carrier has already paid, depend solely on the order of litigation in this case. This point can be illustrated by a simple

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hypothetical. Suppose that after the accident in this case, the tortfeasor motorist’s insurance company had refused to pay the last dollar of the motorist’s $20,000 coverage. In order to satisfy the exhaustion doctrine; se Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995); the plaintiff would have been required to bring an action against the underinsured motorist. Undoubtedly, at the same time she would have brought an action against these defendants as well, as joint tortfeasors. Under the damages in this case, the plaintiff would have been awarded a total judgment of $650,000. That judgment would have been satisfied by these defendants, or their insurers, paying $630,000 and the underinsured’s motorist’s liability carrier paying $20,000. In that situation, as the plaintiff acknowledged in oral argument, the plaintiff would not then have been able to make an additional claim for underinsured motorist benefits under her own policy. Thus, under that scenario, the plaintiff would recover a total of $650,000, and no more.

The only difference between the actual facts and the aforementioned hypothetical situation is the order of litigation — that is, whether the plaintiff brings an action against the defendant, before or after she recovers pursuant to her decedent’s underinsured motorist policy. Under the plaintiff’s argument, however, when she pursues her underinsured motorist policy first, as she in fact did, she can recover, not only the $650,000 that she received from her decedent’s underinsured motorist carrier, but an additional amount for the same damages when she then brings an action against the defendants. Had the exact same claims been presented in a different order, however — namely, an action against the defendants first, rather than second — she agrees that she could recover only a total of $650,000. Stating the plaintiff’s position in this manner demonstrates why it must fail, for it would be bizarre to say that the law permits

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a double recovery depending on the order of litigation of the plaintiff’s claims. Cf. Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282, 302, 695 A.2d 1051 (1997). Put another way, it cannot be the law that underinsured motorist benefits are, or are not, a “collateral source” depending solely on when they are sought.[15]

Finally, the equities do not weigh substantially in favor of the plaintiff’s position. Precluding the plaintiff from obtaining double recovery does not deprive the decedent of the benefit for which she paid her underinsured motorist premium, namely, a guaranteed recovery of her wrongful death damages, subject to contractual limits, despite the fact that she was hit by an underinsured motorist, and whether there was a joint tortfeasor who could also be held liable. The only thing she is deprived of is the opportunity to recover more than she paid for. Moreover, although we acknowledge the general notion that a defendant, if indeed negligent, should be held accountable, our conclusion does not create an inappropriate windfall for the defendants. It is no more of a windfall to the defendants in this case to bar recovery against them than it was a windfall to the nightclub in Gionfriddo
to bar recovery against it. Whenever the principle against double recovery is applied as between various tortfeasors, or tortfeasor surrogates, one of the parties escapes at least some degree of liability. In such cases, however, the policy behind the fundamental principle barring double recovery; see footnote 6; simply is deemed to outweigh the policy behind the collateral source rule. See footnote 7. Such a consequence is,

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therefore, not a windfall under the law, but rather a necessary consequence of a fundamental policy choice. See RK Constructors, Inc. v Fusco Corp., 231 Conn. 381, 386, 650 A.2d 153 (1994).

II
We next address the issue of whether the plaintiff’s CUTPA count against Yale-New Haven sufficiently stated a claim pursuant to § 42-110a et seq.[16] The trial court rendered summary judgment on this count because it concluded that the second count of the plaintiff’s complaint was merely a negligence claim recast as a CUTPA claim and that it was therefore legally insufficient.[17] The plaintiff argues that her allegations of negligence can support a CUTPA claim because Yale-New Haven held itself out to be a major trauma center even though it allegedly did not meet those standards. We disagree.

We previously have concluded “that the provision of medical services falls within CUTPA’s definition of trade or commerce as `the distribution of any services . . . .’ General Statutes §42-110a (4).” Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). Fink,

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however, was based upon the entrepreneurial or business aspects of providing medical services. Id., 185-88. I Fink, the dispute that gave rise to a violation of CUTPA involved a situation in which “the defendant took certain actions designed to usurp the business and clientele of one [professional] corporation in favor of another . . . [that] placed him in direct competition with the interests of the [professional] corporation.” (Citations omitted; internal quotation marks omitted.) Id., 212-13.

The trial court in the present case, relying on A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69
(1990), held that negligence could not be a basis for a CUTPA claim. The trial court then determined that the allegations were based solely on negligence and rendered summary judgment. We agree with the trial court that the plaintiff’s CUTPA count does not allege a sufficient cause of action, but for different reasons.

In A-G Foods, Inc., we held that “the first prong [of the `cigarette rule’], standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence.” Id.[18] We agreed

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with the defendant in A-G Foods, Inc., that “its negligence was not an unfair or deceptive trade practice within the meaning of General Statutes § 42-110b
(a).” Id., 215. We also stated that “[c]learly [the defendant’s] negligence did not constitute an `immoral, unethical, oppressive or unscrupulous’ practice.” Id., 216-17. Subsequently, this court stated that A-G Foods, Inc., stands for the proposition “that there is no CUTPA violation when the sole basis of the claim is the defendant’s negligence and the jury determines that the plaintiff was contributorily negligent.” Williams Ford, Inc. v Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995). In Williams Ford, Inc., however, we made clear that we did not decide “whether negligence of the defendant alone, unaccompanied by contributory negligence of the plaintiff, [could] establish a CUTPA violation” because the plaintiffs in Williams Ford, Inc.
were found to have been contributorily negligent.[19] Id., 591 n. 25. Indeed, we specifically left that issue open for another day. Id. Likewise, in the present case we do not decide whether negligence alone is sufficient to support a CUTPA violation.

We conclude that professional negligence — that is, malpractice — does not fall under CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA. “Although an attorney is not exempt from CUTPA; Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); we made it clear i Heslin that we were not deciding

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`whether every provision of CUTPA permits regulation of every aspect of the practice of law . . . .’ Id., 520. We have held that it is important not to `interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’ Mozzochi
v. Beck, [204 Conn. 490, 497, 529 A.2d 171 (1987)]. This public policy consideration requires us to hold that CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — should be excluded for public policy reasons. See Krawczyk v. Stingle, 208 Conn. 239, 246, 543 A.2d 733 (1988).” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 730-31, 627 A.2d 374 (1993) (Berdon, J., concurring).

Other jurisdictions have reached a similar result with respect to the medical profession. The Washington Court of Appeals has held that although the entrepreneurial or commercial aspects of the practice of medicine are covered as “trade or commerce” under that state’s consumer protection act, violations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence. See Quimby
v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (holding that claims that relate to “actual competence of the medical practitioner” are not recognized under state’s consumer protection act, but claims implicating entrepreneurial aspects of practice of medicine may be sufficient), rev. denied, 107 Wash.2d 1032
(1987); see also Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) (applying Washington law, Court of Appeals concluded that “Washington has recognized that both the practice of law and medicine may give rise to [consumer protection act] claims. . . . These may arise, however, only when the actions at issue are chiefly concerned with `entrepreneurial’ aspects of practice, such as the solicitation of business and billing

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practices, as opposed to claims directed at the `competence of and strategy’ employed by the . . . [defendant].” [Citations omitted.]); Eriks v. Denver, 118 Wash.2d 451, 465, 824 P.2d 1207 (1992) (adopting “entrepreneurial” test from Quimby and applying it in legal malpractice setting); Jaramillo v. Morris, 50 Wash. App. 822, 827, 750 P.2d 1301 (relying on Quimby and holding that negligence claims against hospital were not cognizable under state’s consumer protection act because “[t]he entrepreneurial aspects of the hospital’s business, such as billing, were not implicated”), rev. denied, 110 Wash.2d 1040 (1988); Burnet v. Spokane Ambulance, 54 Wash. App. 162, 166-67, 772 P.2d 1027 (relying on Quimby an Jaramillo in holding that negligence claims asserted against hospital did not include entrepreneurial aspect of hospital’s operations, so that claims fell outside reach of state’s consumer protection act), rev. denied, 113 Wash.2d 1005 (1989).

Just recently, the Michigan Court of Appeals addressed this same issue in Nelson v. Ho, 222 Mich. App. 74, 564 N.W.2d 482
(1997). In Nelson, the court held that “it would be improper to view the practice of medicine as interchangeable with other commercial endeavors, and apply to it concepts that originated in other areas. . . .[20] Therefore, a blanket inclusion in the

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We find these decisions persuasive, and conclude that their reasoning is equally applicable to CUTPA claims. We appreciate, however, that “[i]t would be a

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dangerous form of elitism, indeed, to dole out exemptions to our [consumer protection] laws merely on the basis of the educational level needed to practice a given profession, or for that matter, the impact which the profession has on society’s health and welfare.” United States v. National Society of Professional Engineers, 389 F. Sup. 1193, 1198 (D.D.C. 1974). A blanket exemption for the medical profession would therefore be improper. Nelson v. Ho, supra, 564 N.W.2d 486. We thus conclude that the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, we must review the plaintiff’s allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim.

The plaintiff alleged that Yale-New Haven was certified as a major trauma center and held itself out as such, but failed to staff the emergency department adequately, and that it failed to train and support adequately its existing staff to meet the applicable standards for a major trauma center. The plaintiff further alleged that Yale-New Haven also failed, with respect to emergency room procedures, to meet the standards for a major trauma center.[21] It is undisputed that Yale-New Haven

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was certified as a major trauma center. Therefore, it was not a misrepresentation when it held itself out as certified. By holding itself out as a major trauma center, however, it was representing to the public that it would meet the applicable standards of competency for a major trauma center. We conclude that this representation is simply what all physicians and health care providers represent to the public — that they are licensed and impliedly that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice. The trial court properly rendered summary judgment on the CUTPA count because no unfair or deceptive practices were alleged.

The judgment is affirmed.

In this opinion CALLAHAN, C.J., and PALMER and PETERS, Js., concurred.

BERDON, J., concurring[1] and dissenting.

With whom KATZ and McDONALD, Js., join.

We have recognized two fundamental rules with respect to recovery of damages in tort cases. The first is the single recovery rule — that is, a tort victim can obtain but one full recovery from joint tortfeasors for the damages he or she has sustained. The second is the collateral source rule — that is, the tortfeasor is not entitled to take advantage of the benefits received by the tort victim as a result of his or her injuries when the benefits come from a source independent of the tortfeasor. Part I of the majority’s decision disregards this latter rule by shielding the defendants Yale-New Haven Hospital and Charles F. McKhann, a surgeon at the hospital, from liability and the payment of damages for their alleged

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negligence in allowing the plaintiff’s decedent, Barbara S. Freeman, to bleed to death after an automobile accident. The majority insulates the defendants from liability because Freeman had obtained and paid for a policy of insurance that provided for underinsured motorist protection[2] in the amount of $900,000, of which her estate received $630,000 for her wrongful death.[3] The basis for the majority’s unusual decision is that the $630,000 was not a true collateral source. In the words of the majority, “underinsured motorist benefits . . . operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor.” Because the majority improperly concludes that payment by the decedent’s underinsured motorist carrier was made on behalf of the underinsured motorist tortfeasor in a “surrogate” capacity, thereby treating the underinsured motorist carrier as a joint tortfeasor, it then concludes that the defendants can take advantage of the insurance payment because of the single recovery rule. This blurring of the collateral source and single recovery rules, by labeling the payment received from a tort victim’s own insurance carrier as a payment on behalf of the underinsured motorist tortfeasor, is not only contrary to our long-standing precedent, but also flies in the face of two recent decisions of this court; see Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010

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(1997), and Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 698 A.2d 859 (1997); both of which I will discuss later in this opinion.

The collateral source rule is a rule that is firmly rooted in the law of Connecticut. It “provides that a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him. . . . The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source. That rule is applicable . . . in any tort case.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 556-57, 590 A.2d 914 (1991); see also Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 580, 271 A.2d 94 (1970);[4] Todd v Malafronte, 3 Conn. App. 16, 23, 484 A.2d 463 (1984).[5]

“Simply stated, the collateral source rule will not allow a tortfeasor to reduce his damage liability resulting from harm caused to another by benefits the injured person received from sources other than the tortfeasor himself or one acting on the tortfeasor’s behalf. In essence, the collateral source rule is both a rule of damages and a rule of evidence. Its operation prevents a tort defendant from introducing evidence to prove that the plaintiff incurred no medical expenses

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because the plaintiff’s insurer paid them, or no wage loss because a kind employer continued wages during the disability.

“The end result of the operation of the collateral source rule is that in some cases the tort plaintiff may recover twice or more for some elements of damages — one from the tortfeasor who caused the harm and again from any source of benefits collateral to the tortfeasor. Such multiple recovery, however, is the by-product of the rule and not a principle of the rule itself nor a policy at the foundation of the rule.” J. Kircher, “Insurer Subrogation in Wisconsin: The Good Hands (Or A Neighbor) in Another’s Shoes,” 71 Marq. L. Rev. 33, 51-52 (1987).

“The types of payments that typically come within the collateral source rule include insurance proceeds, medical benefits, and payments made by an employer pursuant to a statutory compensation scheme.” (Emphasis added.) Rametta v. Stella, 214 Conn. 484, 490, 572 A.2d 978 (1990); see also Apuzzo v. Seneco, 178 Conn. 230, 233, 423 A.2d 866 (1979) (holding that unemployment compensation benefits received by plaintiff are collateral source and that defendant could not reduce personal injury damages because of such benefits); Healy v. White, 173 Conn. 438, 448, 378 A.2d 540 (1977) (holding that free special education services provided by state to plaintiff’s child, in order to cope with needs caused by personal injuries, are collateral source and that defendants could not reduce personal injury damages because of such benefits); Gorham v. Farmington Motor Inn, Inc., supra, 159 Conn. 579-80 (holding that medical expenses and wages paid pursuant to employment contract were collateral sources and that defendant could not reduce personal injury damages because of such benefits); Roth v. Chatlos, 97 Conn. 282, 287-88, 116 A. 332
(1922) (“The authorities, both numerically and in weight, agree that a defendant

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owes to the injured compensation for injuries the proximate cause of which was his own negligence, and that their payment by third parties cannot relieve him of this obligation; and that whether the motive impelling their payment be affection, philanthropy, or contract, the injured is the beneficiary of their bounty and not him who caused the injury. In short, the defendant has no equitable or legal claim to share in the amount paid for the plaintiff.”); Regan v. New York New England R. Co., 60 Conn. 124, 130, 22 A. 503 (1891) (holding that, where plaintiff brought claim for fire loss after allegedly being compensated by its insurer, defendant could not claim benefit from insurance because proceeds “came to the plaintiff from a collateral source, wholly independent of the defendant, and which as to him was `res inter alios acta'”).[6]

The collateral source rule was embraced by the United States Supreme Court in 1854; see Propeller Monticello v. Mollison, 58 U.S. (17 How.) 68, 15 L.Ed. 68 (1854);[7] and has been faithfully applied in this state

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since 1891. Regan v. New York New England R. Co., supra, 60 Conn. 124. Nevertheless, I recognize that we also have the rule that as between joint tortfeasors, a plaintiff can only recover his or her full damages once. In Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989), we explained the single recovery principle to be a “simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury.” (Internal quotation marks omitted.) We further elaborated that this rule applies with respect to recovery from joint tortfeasors: “Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. . . . This rule is based on the sound policy that seeks to ensure that parties will recover for their damages. . . . The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. . . . Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 71-72; see also 2 Restatement (Second), Judgments § 50 (1982). That rule, as will be discussed later, is inapposite to the facts of this case.

In my view, underinsured motorist benefits fall squarely within the purview of the collateral source rule. The majority, however, holds that the payment by the decedent’s underinsured motorist carrier, Covenant Insurance Company (Covenant), of the underinsured

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motorist benefits to the plaintiff was made on behalf of the underinsured motorist tortfeasor and, therefore, subject to the single recovery rule. The majority’s reasoning stands underinsured motorist law on its head by transforming the decedent’s insurance, for which she paid the premiums for coverage substantially in excess of that required by law, into the underinsured motorist tortfeasor’s insurance. Before addressing the majority’s reasoning, I first analyze why underinsured motorist benefits fit within the definition of a collateral source.

I
The Restatement of Torts and the Restatement of Judgments both define the areas occupied by the concepts of collateral sources and single recovery. The Restatement (Second) of Torts sets forth the distinction between the two concepts: “Effect of Payments Made to Injured Party[.] (1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability. (2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” (Emphasis added.) 4 Restatement (Second), Torts § 920A (1979).[8]

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Comment (b) to § 920A further underscores the clearly defined nature of collateral source payments. Specifically, “[i]f the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. If the benefit was a gift to the plaintiff from a third party o established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him. One way of stating this conclusion is to say that it is the tortfeasor’s responsibility to compensate for all harm that he causes, not confined to the net loss that the injured party receives. . . .” (Emphasis added.) Id., § 920A, comment (b).

Likewise, the Restatement (Second) of Judgments sets forth the clearly defined areas that those two concepts occupy: “One [concept] is that the injured party is entitled to be recompensed only once by persons chargeable with injuring him; the other is that the liability of a wrongdoer should not be diminished by the fact that provision against the loss had been made on behalf of the injured person. Which one of those concepts governs depends on whether the person providing the payments in question is assimilated to a co-obligor of the judgment debtor or to a casualty insurer of the injured party. The choice is clearly in favor of treating them as co-obligors when, for example, one was guilty of an intentional tort and the other only of negligence. The choice is clear, for the opposite conclusion, when

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the injured party himself purchased accident insurance covering the loss. Such insurance is universally held to be a `collateral source.’ In other cases, the choice involves selecting a beneficiary for a windfall.” 2 Restatement (Second), Judgments § 50, comment (e) (1979).

Underinsured motorist benefits clearly fall within the collateral source rule, and do not come within the single recovery rule, because, among other reasons, they are paid as a result of a contract between the tort victim and the underinsured motorist carrier. This is so even though the damages caused by an underinsured motorist, who is legally liable for the injury to a plaintiff, provide the measuring rod for the benefits to be paid to a plaintiff.[9] I arrive at this conclusion based upon an insurance regulation of this state, our own precedent, and the overwhelming weight of authority from other jurisdictions that have addressed the issue.

The payment made under an underinsured motorist policy is clearly contractual in nature and made on behalf of the insured and not the tortfeasor. Section 38a-334-6 (a) of the Regulations of Connecticut State Agencies[10] requires the underinsured motorist carrier “to pay

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on behalf of the insured,” and not on behalf of the tortfeasor, “all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an [underinsured] motor vehicle . . . .”

Although addressed in a different context, we recently decided two cases clearly designating payments made by the underinsured/uninsured motorist carrier to its insured as contractual in nature, and, therefore, concluding in both cases that those benefits were independent of the underinsured/uninsured motorist tortfeasor. In Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817, we held that payment to the insured under an underinsured motorist policy was contractual. In that case, we made clear that underinsured motorist benefits were made, not on behalf of the uninsured tortfeasor, but, rather, on behalf of the insured. We stated the following: “The obligation of [an] insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance. . . . Payments made pursuant to an uninsured motorist policy are paid on behalf of the insured, and not on behalf of the financially irresponsible motorist who has caused the insured’s injuries. . . . The insurer is not the alter ego of the tortfeasor and, although its contractual liability is premised in part on the contingency of the tortfeasor’s liability, they do not share the same legal right. The commonality of interest in proving or disproving the same facts is not enough to establish privity.” (Citations omitted; internal quotation marks omitted.) Id. This proposition from Mazziotti was later reaffirmed in Dodd v Middlesex Mutual Assurance Co., supra, 242 Conn. 384-85, where the court held that an employer could not be reimbursed for workers’ compensation payments made to an employee from the proceeds of

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uninsured motorist benefits received by, and payable to, that employee.

Furthermore, the overwhelming weight of authority of the jurisdictions that have considered whether underinsured/uninsured motorist benefits are a collateral source have concluded that those benefits fall squarely within that rule. See, e.g. International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569, 571 (Fla. 1972) (holding that joint tortfeasor defendant does not get setoff equal to amount of recovery injured plaintiff receives from carrier of his uninsured motorist coverage); Respess
v. Carter, 585 So.2d 987, 988-90 (Fla.App. 1991) (“The broad issue presented is whether a tortfeasor should gain the benefit of proceeds from [uninsured motorist] coverage of an insurance policy, the premium for which was paid by the injured party. . . . We believe that the collateral source rule is dispositive of this case. . . . In the instant case, the general rule — recognized but not followed by the trial court in order to prevent a windfall from flowing to the plaintiffs — is that a joint tortfeasor is not entitled to setoff for amounts paid by [an uninsured motorist] carrier to the injured party. . . . We interpret the . . . trial court’s order as adopting the premise that . . . the [uninsured motorist] carrier stands in the place of the driver/tortfeasor and his carrier just as though it were that driver who had secured the insurance and paid the premium. This is incorrect. . . . [An uninsured motorist] carrier is neither a tortfeasor nor an insurer thereof. . . . The general principle stated . . . is that the collateral source rule precludes a setoff of [uninsured motorist] benefits.” [Citations omitted; internal quotation marks omitted.]); State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, supra, 226 Ga. 310
(uninsured motorist benefits “do not discharge . . . the liability of the uninsured motorist and cannot be pleaded

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in defense of an action by the injured party against the uninsured motorist”) Beaird v. Brown, 58 Ill. App.3d 18, 21, 373 N.E.2d 1055 (1978) (“[W]e find that payments received by the plaintiffs pursuant to their uninsured motorist coverage were received from a collateral source. . . . Were the plaintiffs to seek recovery from their insurer, such a recovery would be based on contract law and would be made possible by the insured’s payment of premiums. On the other hand, a recovery against the uninsured motorist would be founded in tort law. . . . To allow the defendant to reduce his liability because the plaintiffs exercised a contract right of recovery against their insurer [for uninsured motorist benefits], a right for which the plaintiffs paid consideration in the form of premiums, would be an unjust enrichment of the defendant.” [Citations omitted; internal quotation marks omitted.]); Southard
v. Lira, 212 Kan. 763, 770, 512 P.2d 409 (1973) (“A tort-feasor cannot diminish the amount of his liability by pleading payments made to the plaintiff under the terms of a contract between the plaintiff and a third party who was not a joint tort-feasor. . . . Nor are payments made by an insurance carrier under uninsured motorist coverage, payments which a tort-feasor can utilize to diminish the amount of his liability to the injured party.”); Jones v. Smith, 1 Kan. App. 2d 331, 334, 564 P.2d 574 (1977) (finding that rule in Southard was controlling and holding that “[t]he mere fact that [the plaintiff] obtained uninsured benefits from her own insurance company does not prevent her from maintaining a cause of action against the tort-feasor. . . . The only drawback is that, in the event [that the plaintiff] recovers from the lawsuit, she must subrogate her insurance company from the proceeds.”) Hagedorn v. Adams, 854 S.W.2d 470, 479 (Mo.App. 1993) (“The collateral source rule is applicable to uninsured motorist payments made under a policy of insurance by the insured’s own insurance company

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to the insured for which the insured has paid a premium. . . . [P]ayment of the uninsured motorist coverage is from a source collateral of the wrongdoer.” [Citation omitted.]); Weatherly v. Flournoy, 929 P.2d 296, 299 (Okla.App. 1996) (“[W]e find that a tortfeasor may not set-off any amount he is found to owe the injured party by any amount the injured party may have received from his own uninsured/underinsured motorist policy. The tortfeasor should not benefit from a policy held and paid for by the injured party.”) Estate of Rattenni v. Grainger, 298 S.C. 276, 278, 379 S.E.2d 890
(1989) (“[w]e find no persuasive reason to distinguish underinsurance proceeds from other insurance proceeds that are subject to the collateral source rule”); Bradley v. H.A. Manosh Corp., 157 Vt. 477, 484-85, 601 A.2d 978 (1991) (“[I]t might seem that a tortfeasor, such as [the] defendant, ought to be allowed to subtract from a damages award any settlement the plaintiff receives from an insurer standing jointly liable with an uninsured motorist. Such a result cannot be justified, however. . . . [T]he [uninsured motorist] carrier has a status different from that of insurance carriers who represent other tortfeasors. Their contractual obligation is to persons allegedly at fault, whereas the contractual obligation of the [uninsured motorist] carrier is to the injured party.” [Citations omitted; internal quotation marks omitted.]); Johnson v. General Motors Corp., 190 W. Va. 236, 244, 438 S.E.2d 28 (1993) (“In the case before us, it would be unfair for [the defendant] to minimize its damages by offsetting the underinsurance settlement the [plaintiffs] received as a result of their own contractual arrangements. Accordingly, we hold that the collateral source rule operates to preclude the offsetting of uninsured or underinsured benefits since the benefits are the result of a contractual arrangement which is independent of the tortfeasor . . . .”); see also Peele v Gillespie, 658 N.E.2d 954, 957-58 (Ind.App. 1995)

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(same, but collateral source rule is based on statute rather than common law).[11]

Indeed, the precise issue presented in this case has arisen in the context of several factual situations in which plaintiffs have sought damages from defendants even though the plaintiff already had recovered his or her damages in underinsured/uninsured motorist benefits. See, e.g., Respess v. Carter, supra, 585 So.2d 988-90 (with facts similar to present case, where deceased insured’s survivors settled with [uninsured motorist] carrier for $405,000 in uninsured motorist benefits, and then brought action against uninsured motorist’s doctor and hospital for negligently treating and releasing uninsured motorist when he had complained of heart attack symptoms shortly before automobile accident in dispute; court held that defendants were not entitled to have setoff for benefits paid by deceased insured’s uninsured motorist carrier because benefits fell within collateral source rule) Bradley v. H.A. Manosh Corp.,

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supra, 157 Vt. 483-85 (jury awarded $250,000 in damages and defendant, employer of uninsured motorist, argued that trial court should have reduced award by $200,000 that plaintiff had received from her father’s uninsured motorist policy; court held that defendant was not entitled to setoff for amount of timely payment by uninsured motorist carrier because of collateral source rule, and because through uninsured motorist statute, and most policies, “any potential windfall to the plaintiff will instead pass through to the [uninsured motorist] carrier as reimbursement for payments already made”); Johnson v General Motors Corp., supra, 190 W. Va. 240 n. 1, 243-44 (plaintiffs received approximately $300,000 underinsured motorist settlement for automobile collision with underinsured motorist and subsequently litigated products liability claim against defendant for injuries in same accident caused by allegedly inadequate seat belt restraint system; court held that defendant could not minimize its damages by offsetting them by underinsured motorist benefits that plaintiffs received); Hagedorn v. Adams, supra, 854 S.W.2d 478-79 (plaintiff received uninsured motorist benefits in amount of $20,000 from his insurer due to collision with police vehicle while he was passenger on motorcycle driven by uninsured motorist; court held that defendant city could not obtain credit for uninsured motorist benefits paid to plaintiff because of collateral source rule).

A widely recognized treatise on underinsured/uninsured motorist insurance makes clear that those benefits are wholly independent of the tortfeasor(s): “[An] [u]ninsured [or underinsured] motorist [payment] is not for the benefit of the tortfeasor. The disposition of an uninsured [or underinsured] motorist claim generally has no relation to or effect on the liability of the uninsured motorist (or other joint tortfeasors). One reason for this is that in most states the insurer is entitled to

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be subrogated to the insured’s tort claim against the uninsured [or underinsured] motorist. Thus, courts have repeatedly concluded that ordinarily . . . the insurance payment does not diminish the damages that may be recovered from an uninsured [or underinsured] tortfeasor or a joint tortfeasor who is insured.” 2 A. Widiss, Uninsured and Underinsured Motorist Insurance (2d Ed. 1992) § 19.11, pp. 138-39, citing Erickson v. Hinckley Municipal Liquor Store, 373 N.W.2d 318, 326 (Minn.App. 1985) (“An uninsured motorist policy is a private contract between the insured and the insurer. As such, it does not run to the benefit of [the defendant]. The policy was not purchased to protect [the defendant], it was purchased to protect . . . the insured. [The defendant] does not become a third party beneficiary to the uninsured motorist policy. . . . It is the general rule that co-tortfeasors are jointly and severally liable to injured plaintiffs.”).

My conclusion that underinsured motorist benefits is a collateral source is further buttressed by General Statutes §§52-225a and 52-225b,[12] which provide that

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an award of economic damages, based on personal injury or wrongful death, shall be reduced by the trial court, after liability is determined and damages are awarded, by certain enumerated payments of “collateral sources” (statutory collateral source credits) to the plaintiff. Notwithstanding this limited abrogation of the collateral source rule by statute, the legislature has, up to this point in time, chosen not to include underinsured motorist benefits in § 52-225b. This is so in spite of the fact that uninsured motorist law has existed in Connecticut since 1967,[13] underinsured motorist coverage since 1979,[14] and statutory collateral source credits were enacted in 1985.[15] Indeed, the legislature has revisited § 52-225b and its related statutes twice,[16] but has never included underinsured motorist benefits as a statutory

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collateral source credit. Surely the legislature has the power to further abrogate the common law collateral source rule. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 133, 479 A.2d 231 (1984). The legislature, however, has gone no further than the present version of §52-225b, which demonstrates an intent on its part to limit the encroachment on the collateral source rule.[17]

In this case, the decedent was required by law to purchase underinsured motorist coverage in the amount of only $20,000; see General Statutes §§ 38a-336[18] and 14-112;[19] but opted to pay additional premiums for $880,000 in additional coverage. If she had carried the mandated amount of only $20,000, this case would surely not be here. To allow a defendant to receive the benefit of these underinsured motorist benefits flies in the face of the core principle behind the collateral

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source rule — the public policy favoring avoidance of unjust enrichment on the part of a tortfeasor. Gurliacci v. Mayer, supra, 218 Conn. 556-57 (basis of our collateral source rule is that wrongdoer shall not benefit from windfall from source wholly independent of tortfeasor and paid to plaintiff); Gorham v. Farmington Motor Inn, Inc., supra, 159 Conn. 580 (it is more just that injured person, rather than wrongdoer, shall profit from windfall). Furthermore, although one of the bases to justify the collateral source rule is that if there should be a windfall it should go to the tort victim, there was no windfall in the present case. The plaintiff’s decedent paid insurance premiums for the $900,000 coverage year after year to protect her (or her estate) from the contingency that unfortunately occurred. In essence, the underinsured motorist insurance coverage in this case was no different than a life insurance policy, except that the amount of the payment for the death was not fixed but, rather, based upon the value of the decedent’s life. Finally, “[t]he collateral source rule expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. . . . If [a court] were to permit a tortfeasor to mitigate damages with payments from [a] plaintiff’s insurance, [the] plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit.” (Emphasis added.) Helfend v. Southern California Rapid Transit District, 2 Cal.3d 1, 10, 465 P.2d 61, 84 Cal.Rptr. 173 (1970).

II
I now turn to the rationales that the majority advances in order to justify its decision. The overarching flaw in the majority’s reasoning is that it concludes that “underinsured motorist benefits, although contractual

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in nature, operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor.” The simple answer to this unfounded conclusion, as I have previously pointed out and will do so again in this part of my opinion, is that this state’s insurance regulation and our established case law have rejected this “surrogate” argument. By improperly concluding that underinsured motorist benefits operate as a liability insurance surrogate for the underinsured motorist, the majority unjustifiably paves the way for its application of the common-law rule precluding double recovery for the same harm as articulated in Gionfriddo v Gartenhaus Cafe, supra, 211 Conn. 67. Once the majority made the leap that underinsured motorist benefits are a “liability insurance surrogate” for the underinsured tortfeasor motorist, it was able to treat the underinsured motorist carrier as a joint tortfeasor, alongside the defendants, in which case the general tort rule precluding double recovery from joint tortfeasors would apply. I have no quarrel with the single recovery rule being applied faithfully to actual joint tortfeasors. But underinsured motorist carriers are not joint tortfeasors, and should not be viewed as such. Gionfriddo is distinguishable on its facts from the present case because, as a result of its sale of alcoholic liquor to the intoxicated driver who caused the fatal accident, the defendant was actually a joint tortfeasor. Id., 70. That is simply not the case here, and that underscores the fundamental flaw in the majority’s opinion.[20]

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The majority, by concluding that the decedent’s underinsured motorist carrier is a surrogate for the underinsured motorist tortfeasor, dismisses the plain language of § 38a-334-6 (a) of the regulations,[21] which provides that the underinsured motorist carrier “shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an [underinsured] motor vehicle . . . .”[22] (Emphasis added.) In other words, payment of benefits made by the underinsured motorist carrier are made, not on behalf of the tortfeasor, but, rather, on behalf of the insured. This is bolstered by the fact that it is the insured that pays the

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premiums for the underinsured motorist coverage and not the underinsured motorist tortfeasor.[23]

Indeed, we so interpreted this regulation in Pecker v. Aetna Casualty Surety Co., 171 Conn. 443, 449-52, 370 A.2d 1006
(1976). In Pecker, we stated, in discussing whether “other insurance” clauses were valid under another provision in the regulations, that “§ 38-175a-6 (a) [of the Regulations of Connecticut State Agencies, now § 38a-334-6 (a)] clearly indicates that an insurer making payment under the uninsured motorist coverage provisions of its policy makes that payment `on behalf of’ the insured, not the uninsured motorist.” (Emphasis added.) Id., 452. We reinforced this proposition, as I previously pointed out, in Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817, an Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 384.

The majority also reasons that the plaintiff’s right to pursue her claim must fail because of what it asserts as the “fundamental principle” behind underinsured motorist insurance, namely, that the insured should not be placed in a better position than she would be in had the underinsured tortfeasor been fully insured. Simply put, the public policy behind underinsured motorist insurance does not embody this enunciated principle and the majority’s assertion appears to be an overly broad generalization from our previous case law. I agree that our case law provides that “[t]he public policy established by the uninsured motorist statute is that

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every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained [an adequate] policy of liability insurance.” (Internal quotation marks omitted.)Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18, 615 A.2d 1032 (1992); see also Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 366-67, 641 A.2d 783 (1994); Smith v Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892
(1993); Bodner v. United Services Automobile Assn., 222 Conn. 480, 499, 610 A.2d 1212 (1992). For example, we have previously held that an insured cannot recover punitive damages against its own uninsured motorist carrier, because had the uninsured motorist maintained a policy of liability insurance, the insured would not have been able to recover punitive damages from the tortfeasor’s insurer; Bodner v. United Services Automobile Assn., supra, 499-500; that the statutory collateral source credits mandated by § 52-225a limits the amount of benefits that a claimant may recover through underinsured motorist insurance, the same way that the underinsured motorist would be allowed to reduce the damages for which he or she is liable; Smith v. Safeco Ins. Co. of America, supra, 573; and that “[w]hether the uninsured motorist was legally liable must be determined in light of any substantive defenses that would have been available to the uninsured motorist.”Williams v. State Farm Mutual Automobile Ins. Co., supra, 368.

Those cases merely indicate that the insured is entitled t no greater recovery from his or her underinsured motorist carrier
than he or she would have been able to recover from the underinsured motorist. See Smith v. Safeco Ins. Co. of America, supra, 225 Conn. 573 (“underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor”). The plaintiff in this case is not seeking an enhanced right of recovery from her

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decedent’s underinsured motorist carrier beyond that which she would have been entitled to recover from the underinsured tortfeasor. Instead, she has received insurance proceeds for which the decedent contracted with Covenant in consideration for premiums she paid. The other side of the coin, however, is that the majority’s decision places the defendants in a better position, indeed, it gives them a windfall, just because the decedent had the foresight to purchase $880,000 more underinsured motorist insurance than the minimal $20,000 amount required by statute.

In what it finds as further support for its position, the majority asserts that the plaintiff’s right to recover depends solely on the order of litigation. The thrust of the majority’s reasoning is that if the plaintiff had first brought an action against the defendants, she would not be entitled to recover the underinsured motorist benefits. As I see it, the answer to that reasoning is that the contractual relationship between insurer and insured allows the insured to promptly seek benefits from its insured. The underinsured motorist carrier is required to mak prompt payment of a claim that it finds to be clearly payable.[24] Indeed, the public policy requiring prompt payment of just claims demands no less. See generally General Statutes § 38a-815 et seq. (Connecticut Unfair Insurance Practices Act); General Statutes § 42-110a et seq. (Connecticut Unfair Trade Practices Act). The fact that the plaintiff, as administratrix of the decedent’s estate, was able to recover a prompt payment, based upon the decedent’s contractual arrangement with her insurer, before the plaintiff brought an action against the defendants in this case

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should not be used to create a windfall for the defendants. The Vermont Supreme Court has aptly stated that “[i]t would be inequitable to allow a tortfeasor to escape liability whenever a plaintiff receives timely payment from [his or] her [uninsured motorist] carrier.” (Emphasis added; internal quotation marks omitted.) Bradley v. H.A. Manosh Corp., supra, 157 Vt. 485.

With respect to the order of litigation, allowing the plaintiff to recover in this case makes sense for another reason. The conclusion that underinsured motorist benefits are not a collateral source jeopardizes the subrogation rights of underinsured motorist carriers and also impermissibly interferes with the contractual relationship of the insurer and insured. An underinsured motorist carrier, based on the insurance contract or a settlement agreement, after fulfilling its duty of making prompt payment, would surely seek reimbursement of all or part of a payment if the insured later recovers from the tortfeasor. This is common practice in the world of underinsured motorist benefits. “Uninsured [or underinsured] motorist coverages usually include a provision that states the insurer has a right to be reimbursed to the extent of any payment the insurer has made.” 2 A. Widiss, supra, § 19.2, p. 110.[25] In addition, “[an uninsured or underinsured motorist carrier] will often require a claimant to sign an agreement, prior to receiving any payment, which acknowledges the receipt of the insurance payment and reiterates the

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terms of the [insurance contract with respect to reimbursement] . . . .” Id., § 19.6, pp. 129-30. Nothing prevents underinsured motorist carriers from doing this. See, e.g., Bradley v. H.A. Manosh Corp., supra, 157 Vt. 483 (“[i]n a pretrial settlement agreement, the [uninsured motorist] carrier agreed to pay [the] plaintiff $200,000, provided it would receive reimbursement up to $200,000 out of any recovery from the defendant, whom it agreed to sue jointly with [the] plaintiff”) International Sales-Rentals Leasing Co. v. Nearhoof, supra, 263 So.2d 570 (in order to settle uninsured motorist claim, uninsured motorist carrier required plaintiffs to sign a trust agreement wherein plaintiffs agreed to “hold in trust” all rights, claims, and causes of action against any party responsible for plaintiffs’ injuries and, based upon this, uninsured motorist carrier intervened in plaintiffs’ action against defendant.) As the Vermont Supreme Court has pointed out, in the context of an action against an uninsured motorist’s employer brought after uninsured motorist benefits were collected, “tortfeasors jointly liable with an uninsured motorist may not reduce their liability by the amount of payments made under [uninsured motorist] coverage because any potential windfall to the plaintiff will instead pass through to the [uninsured motorist] carrier as reimbursement for payments already made.” Bradley v H.A. Manosh Corp., supra, 485.

The underinsured motorist carrier’s assertion of its rights to reimbursement for payments made to an insured greatly reduces the prospects of double recovery.[26] Whether there is a double recovery on the part

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of the plaintiff obviously depends upon the insurance contract between the tort victim (the insured) and the underinsured motorist carrier. That, however, is a matter between the insured and the insurer. Nevertheless, the tort victim is benefited, as are insureds in general, by placing the ultimate financial responsibility upon the defendants in a case such as this one, and by allowing the tort victim’s underinsured motorist carrier to be reimbursed from any recovery that the victim receives from any third party that is liable for the injuries, because the end result will be that the costs of insurance premiums for such protection will be driven down.

In sum, I conclude that the underinsured motorist benefits paid to the plaintiff as a result of the decedent’s death constitute a collateral source that cannot be taken advantage of by the defendants in order to mitigate the damages for which they may be found liable. Therefore, I find that the trial court improperly rendered summary judgment on the medical malpractice count.

Accordingly, I dissent.

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