Randall Mason v. ING Life Insurance and Annuity Company et al.
CV 09 6001541
????Decided: January 18, 2012
On November 16, 2011, the jury in this matter rendered a verdict in the amount of $571,370.18 in favor of the plaintiff.1??The court accepted and recorded the verdict on November 16, 2011. ? The defendants in this matter have filed a number of postjudgment motions, which motions, with the exception of Motion for Collateral Source Reduction filed by the defendant, ING Life Insurance and Annuity Company, were filed outside of the ten (10) days permitted by Practice Book ??16?35.2??Neither defendant filed a motion for extension of time for filing post-verdict motions. ? Accordingly, the court denies the following motions:
ING’s motion to set aside the verdict, #?175;
ING’s motion for judgment notwithstanding the verdict and renewed directed verdict, #?176;
ING’s motion for remittitur, #?178;
Aetna’s motion for remittitur and collateral source reduction of verdict, #?179;
Aetna’s motion to set aside the verdict, #?180;
Aetna’s motion for judgment notwithstanding the verdict, to set aside the verdict, for remittitur and for a new trial, #?182.3
The only motion which was filed within the permitted time period is ING’s motion for collateral source reduction, #?174. ? The defendant contends that all but $52.19 of the total economic damages of $96,370.18 awarded the plaintiff was paid by the workers’ compensation carrier, and therefore, it is entitled to a collateral source reduction of $96,317.99, pursuant to General Statutes ??52?225a. ? The plaintiff has objected, arguing that workers’ compensation payments are not a ?collateral source? within the statutory definition.4
General Statutes ??52?225b defines collateral sources as ?any payments made to the claimant, or on his behalf by or pursuant to (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; ?or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services.? ? The issue is whether medical treatment reimbursement pursuant to the Workers’ Compensation Act is a collateral source as that term is defined in General Statutes ??52?225b.
?Prior to the enactment of ??52?225a in 1985, Connecticut adhered to the common law collateral source rule, which provides that a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him ? Public Act 85?574 ? was codified as ??52?225a ? In 1986 ? ??52?225a was extended ? to abolish the common law collateral rule in all personal injury actions.? ?(Citations omitted; ?internal quotation marks omitted.) ?Jones v. Kramer, 267 Conn. 336, 345?46, 838 A.2d 170 (2004).
?It is ? a rule of statutory construction that statutes in derogation of the common law are to be strictly construed.? ?(Citations omitted; ?internal quotation marks omitted.) ?Copeland v. Warden, 225 Conn. 46, 53, 621 A.2d 1131 (1993). ??[T]he fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.? ? (Citation omitted; ?internal quotation marks omitted.) ?Florestal v. Government Employees Ins. Co., 236 Conn. 299, 311, 673 A.2d 474 (1999).
In Smith v. Otis Elevator Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0275359 (February 28, 1994) [11 Conn. L. Rptr. 164], Justice Vertefeuille (then Judge Vertefeuille) in applying the canons of statutory construction and examining the legislative history of the collateral source reduction statute stated: ??The language used by the legislature to define ?collateral sources’ is clear. ? Included are two types of collateral sources. ? The first is payments made pursuant to health insurance, automobile insurance or other ?similar insurance.? ? The second is payments made pursuant to a contract or agreement. ? Worker’s compensation payments are not made pursuant to insurance or agreement. ? Workers’ compensation payments are made pursuant to statutory requirement, as set forth in the Workers’ Compensation Act. General Statutes ???31?275 et seq. ? Clearly, payments required to be made under the Workers’ Compensation Act do not fall within the express language used by the legislature to define ?collateral sources.? ? ? (Emphasis added.) ?Id. See Levandoski v. Cone, Superior Court, judicial district of New London at New London, No. 542714 (March 25, 2002) [31 Conn. L. Rptr. 592] (where although the potential existed for the plaintiff to receive a double recovery based upon a withdrawal of action being filed by the employer which provided workers’ compensation benefits, the court found that the defendant was not entitled to a collateral source reduction for workers’ compensation benefits paid to the plaintiff); ?Boyle v. Peerless Ins. Co., Superior Court, judicial district of New Haven at New Haven, CV 94 0357055 (June 16, 1994) (where the court was asked to strike a special defense for a reduction of damages paid by workers’ compensation. ? Although the court stated that ?[w]orkers compensation payments ? have been held not to be collateral source payments under General Statutes ??52?225b,? because the special defense represented contractually agreed upon credits under the terms of the insurance contract, the court denied the motion to strike the special defense).
The court in Smith v. Otis Elevator Company, also found that even if workers’ compensation benefits could be found to be within the statutory definition of collateral sources, the provision of ??52?225a which states explicitly that ?there shall be no reduction for (1) collateral source for which a right of subrogation exists ?? would prevent deducting those benefits from jury verdicts.
In this matter, the plaintiff’s employer did not exercise its right of subrogation by either intervening or by filing a statutory lien. ? This does not change the statutory language defining a collateral source or support ING’s position. ? The fact that the plaintiff may realize a windfall from the employer’s failure to timely exercise its right to claim reimbursement also does not allow for or justify a deduction from the jury verdict.5???[I]n adopting the collateral source definition and the deduction requirement, the legislature did not provide for any exception in those cases where the employer fails to timely exercise its right to claim reimbursement and thereby loses that right. ? In the absence of any such exception, the express statutory language applies and there can be no deduction. ? Secondly, the defendant cites no case law or other authority which supports the defendant’s contention that the court should deduct workers’ compensation benefits from the jury verdict even in those instances where the employer has lost its right of reimbursement by failure to act timely.? ?Smith v. Otis Elevator Company, supra, Superior Court, CV 90 0275359.
At oral argument on the motion, ING cited Perillo v. Jacobs, Superior Court, judicial district of New Haven, Docket No. CV 06 60000215 (April 20, 2009) [47 Conn. L. Rptr. 764], in support of its motion for a collateral source reduction. ? In reviewing Perillo, however, the court finds that ING’s reliance to be misplaced. ? Perillo involved an underinsured motorist case wherein the self-insurer/defendant was seeking a reduction of the jury award for workers’ compensation benefits, tortfeasor payment, comparative negligence, and medical billing write-offs. ? The plaintiff/insured characterized the reductions being sought by the defendant as collateral source payments, and therefore, the defendant would not be entitled to any reductions for these payments because it failed to submit interrogatories to the jury, and any reductions to which the defendant may be entitled should be made against the underinsured motorist policy limit, and not the gross jury award of damages itself.
The court in Perillo did not find that workers’ compensation benefits were a collateral source benefit as defined in General Statutes ??52?225b, but relying on a regulation promulgated by the insurance commissioner and the exclusionary language of the insurance memorandum found that the court ?should ignore the collateral source doctrine and whatever result it might produce. ? The regulation and insurance memorandum at issue both authorize a reduction on the basis of workers’ compensation benefits paid and payable.? ?Id. The court declined to characterize workers’ compensation benefits as collateral sources controlled by the collateral source doctrine.
Finally, the defendant argues that in the court’s jury instructions, it included the following charge:
?Now, during the trial, you may have heard some reference to either insurance or you may find that insurance is mentioned in some of the medical exhibits that you will have with you in the jury room. ? Likewise you have heard reference to workers’ compensation.
You might be wondering whether or not the payment of any benefits creates a situation where a plaintiff can be reimbursed more than once. ? Let me assure you that this will not happen. ? The plaintiff will not receive any double recovery. ? Therefore, you must award the full measure of damages due to the plaintiffs, as you might determine that to be. ? I will make sure that there is no double recovery. ? If you find that the defendants’ negligence was the proximate cause of the plaintiff’s injuries, you are to include in your award of economic damages all of the reasonable and necessary expense proximately caused by the injuries that you find were sustained as a result of the incident on August 29, 2007. ? The Court, after input from counsel, will make any adjustments to your verdict as may be required by law.??6??Excerpt from transcript of jury charge, November 16, 2011.7
Even assuming for the sake of discussion that the jury should not have been so instructed, the court could not have properly instructed the jury that the plaintiff was not entitled to recover for his economic damages which came from any workers’ compensation benefits. ? Therefore, it was proper for the jury to have made the award for economic damages in the amount of $96,370.18. ? Moreover, as stated above, workers’ compensation benefits are not payments which are considered double recovery for purposes of collateral source reduction.
Therefore, for the reasons stated, ING’s motion for collateral source reduction, #?174, is denied.
Swienton, J.
FOOTNOTES
FN1.?The jury awarded $96,370.18 in economic damages, $475,000 in noneconomic damages for a total of $571,370.18. ? The jury allocated the negligence as 61.5 percent to ING, 21 percent to Aetna, and 17.5 percent to the plaintiff..??FN1.?The jury awarded $96,370.18 in economic damages, $475,000 in noneconomic damages for a total of $571,370.18. ? The jury allocated the negligence as 61.5 percent to ING, 21 percent to Aetna, and 17.5 percent to the plaintiff.
FN2.?Practice Book ??16?35 provides, ?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, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes ??52?225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; ?provided that for good cause the judicial authority may extend this time. ? The clerk shall notify the trial judge of such filing. ? Such motions shall state the specific grounds upon which counsel relies.? ? Neither defendant provided the court with a reason as to why the motions were filed after the ten-day expiration, other than ?the holiday,? referencing Thanksgiving. ? At the hearing on these motions, the defendant Aetna requested that the court grant an extension of time for the filing, nunc pro tunc, but provided the court with no authority to grant such a request. ? Furthermore, no authority was provided as to whether the filing of the motions outside the prescribed ten-day period was a waivable defect, providing the court with the jurisdiction to act on the motions. ??When the time limit to file a motion to set aside the verdict as against the evidence was twenty-four hours this court said: ?As we said in Brown v. Congdon, 50 Conn. 302, 311 (1882), with reference to a motion in arrest of judgment, the limitation, although the time is short, is found by experience to be on the whole for the interest of the public. ? We no more feel at liberty to disregard it on account of the hardship of a particular case than we do to disregard an ordinary statute of limitations for a similar reason.? ?(Internal quotation marks omitted.) ?Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988)..??FN2.?Practice Book ??16?35 provides, ?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, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes ??52?225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; ?provided that for good cause the judicial authority may extend this time. ? The clerk shall notify the trial judge of such filing. ? Such motions shall state the specific grounds upon which counsel relies.? ? Neither defendant provided the court with a reason as to why the motions were filed after the ten-day expiration, other than ?the holiday,? referencing Thanksgiving. ? At the hearing on these motions, the defendant Aetna requested that the court grant an extension of time for the filing, nunc pro tunc, but provided the court with no authority to grant such a request. ? Furthermore, no authority was provided as to whether the filing of the motions outside the prescribed ten-day period was a waivable defect, providing the court with the jurisdiction to act on the motions. ??When the time limit to file a motion to set aside the verdict as against the evidence was twenty-four hours this court said: ?As we said in Brown v. Congdon, 50 Conn. 302, 311 (1882), with reference to a motion in arrest of judgment, the limitation, although the time is short, is found by experience to be on the whole for the interest of the public. ? We no more feel at liberty to disregard it on account of the hardship of a particular case than we do to disregard an ordinary statute of limitations for a similar reason.? ?(Internal quotation marks omitted.) ?Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988).
FN3.?On January 13, 2012, Aetna filed with the court ?Defendant Aetna Life Insurance Company’s Motion to Set Aside Verdict, #?191.? ? Although so titled, the motion was not a separate motion to set aside verdict, but was filed to provide excerpts of the trial transcript to the court. ? Accordingly, the court shall not enter any orders on this ?motion.?.??FN3.?On January 13, 2012, Aetna filed with the court ?Defendant Aetna Life Insurance Company’s Motion to Set Aside Verdict, #?191.? ? Although so titled, the motion was not a separate motion to set aside verdict, but was filed to provide excerpts of the trial transcript to the court. ? Accordingly, the court shall not enter any orders on this ?motion.?
FN4.?The parties agreed that the total amount of medical bills was $96,370.18, and the economic damages only consisted of those medical expenses. ? Thus, the jury was not provided with specific interrogatories as to the amount claimed as medical expenses..??FN4.?The parties agreed that the total amount of medical bills was $96,370.18, and the economic damages only consisted of those medical expenses. ? Thus, the jury was not provided with specific interrogatories as to the amount claimed as medical expenses.
FN5.?Query whether the defendant would be seeking a reduction in the economic damages award if the employer had intervened and later settled with the plaintiff for an amount less than what was actually paid..??FN5.?Query whether the defendant would be seeking a reduction in the economic damages award if the employer had intervened and later settled with the plaintiff for an amount less than what was actually paid.
FN6.?There is no civil jury instruction relating to this issue provided in the Connecticut Judicial Branch’s Civil Jury Instructions. ? In Wright & Ankerman, Connecticut Jury Instructions, ??234 (4th Ed.1993), a proposed example of an instruction is set forth as follows: ??Now, there has been reference during the course of this trial to payments which have been made to the plaintiff under workers’ compensation benefits and Blue Cross has defrayed some of his medical and hospital expenses. ? You should leave reference to both of these matters entirely out of your consideration. ? They have no place whatever in the case. ? Whether or not any payments of that sort have been made is of no concern to you whatsoever. ? Your question is: ?what is the value of the injury which the plaintiff suffered and what damages shall he receive..??FN6.?There is no civil jury instruction relating to this issue provided in the Connecticut Judicial Branch’s Civil Jury Instructions. ? In Wright & Ankerman, Connecticut Jury Instructions, ??234 (4th Ed.1993), a proposed example of an instruction is set forth as follows: ??Now, there has been reference during the course of this trial to payments which have been made to the plaintiff under workers’ compensation benefits and Blue Cross has defrayed some of his medical and hospital expenses. ? You should leave reference to both of these matters entirely out of your consideration. ? They have no place whatever in the case. ? Whether or not any payments of that sort have been made is of no concern to you whatsoever. ? Your question is: ?what is the value of the injury which the plaintiff suffered and what damages shall he receive.
FN7.?None of the parties provided the court with a proposed instruction. ? At some point prior to charging the jury, the defendants asked the court to give a charge regarding this issue. ? No exceptions were taken as to the court’s charge on this topic..??FN7.?None of the parties provided the court with a proposed instruction. ? At some point prior to charging the jury, the defendants asked the court to give a charge regarding this issue. ? No exceptions were taken as to the court’s charge on this topic.
Swienton, Cynthia K., J.