Opinion
CV156007994S
07-03-2018
Rhea E. HIGHSMITH v. Pedro L. ECHEVARRIA et al.
UNPUBLISHED OPINION
Harmon, Judge
FACTS
The plaintiff commenced this action wherein she claimed damages and injuries arising out of a motor vehicle accident that occurred on January 12, 2013. The accident involved two vehicles. The plaintiff was a passenger in a vehicle operated by her husband Douglas Highsmith. A collision occurred on January 12, 2013, and it involved another vehicle operated by Pedro Echevarria. Plaintiff brought suit against both Mr. Pedro Echevarria and her husband Douglas Highsmith as well as Geico for underinsured motorist coverage with respect to the alleged negligence of Mr. Echevarria.
Prior to trial, the plaintiff settled her claims against Douglas Highsmith and Pedro Echeverria and the trial proceeded against Geico for underinsured coverage. The plaintiff called Pedro Echevarria as a witness. Mr. Echevarria testified at trial through the aide of a Spanish Interpreter. During Mr. Echeverria’s testimony, he never admitted to fault in the accident. Douglas Highsmith was not called as a witness in this trial. The plaintiff also testified as to her injuries and her recollection of the accident.
The trial concluded on March 28, 2018. At the conclusion of the evidence and closing arguments, the court gave the jury its charge and instructions, along with two verdict forms; a Plaintiff’s Verdict and a Defendant’s Verdict. No objections to the court’s charge were made and no Interrogatories were submitted to the jury.
The jury began deliberations. The jury returned a verdict on March 28, 2018 in favor of the defendant, Geico. The plaintiff never sought to have the jury polled nor did the plaintiff request that the court re-instruct the jury and have them return for further deliberations.
The plaintiff subsequently filed the motion at hand to set aside the verdict, claiming the jury’s award was against evidence and could only be rendered by mistake. The plaintiff claims that the jury erred in conclusion regarding fault and its conclusion regarding injury. The defendant has filed an objection to the motion to set aside the verdict and asks that the motion be denied.
LEGAL STANDARD REGARDING MOTION TO SET ASIDE THE VERDICT
"The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence ... [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ..." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
"The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury." (Internal quotation marks omitted.) Hunte v. Arnica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). The evidence must be considered, along with reasonable inferences, in the light most favorable to the parties who were successful at trial with weight given to the judgments of the judge and jury. John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991).
"Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury ... the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined." (Citation omitted.) Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). "A court may set aside a verdict if it determines that the jury misapplied the law as given to them by the court." Id. "Directed verdicts are not favored ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." (Citation omitted; internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 465, 78 A.3d 76 (2013).
DISCUSSION
The first witness called by the plaintiff was Pedro Echevarria. Mr. Echevarria testified at trial through the aide of a Spanish Interpreter. Mr. Echevarria described the collision but at no time indicated he was at fault for the accident. The plaintiff next took the witness stand and gave her account of the accident. The plaintiff on direct and cross examination gave conflicting testimony regarding how the accident occurred and which party was at fault for her alleged injuries. The plaintiff also testified regarding her treatment and the injuries she alleged were sustained in the accident. The plaintiff submitted medical bills and reports to the jury to review regarding the extent of her injuries.
In determining whether to set aside the verdict, the court must determine whether the jury acted in error or in a manner inconsistent with the evidence presented.
In our case, it is possible that the jury reasonably could have found that the plaintiff failed in her proof of liability or that she actually incurred any damages as a result of this accident. The Appellate Court has held that "the existence of conflicting evidence limits the court’s authority to overturn a jury verdict [and that] the jury is entrusted with the choice of which evidence is more credible and what effect it is to be given. Childs v. Bainer, 235 Conn. 107, 116 (1995).
The jury instructions do not state or require that a jury must fill out the plaintiff’s form prior to filling out the defendant’s verdict form. In our case, it is possible that given the inconsistent testimony regarding the cause of the accident and the extent of the plaintiff’s injuries, that the jury felt she had not met her burden of proof regarding liability and/or the extent of her injuries, therefore, she was entitled to no compensation and a defendant’s verdict was appropriate. See Childs v. Bainer, 235 Conn. 107, 116 (1995).
The Plaintiff contends that the Jury erred by possibly concluding that the Plaintiff did not sustain any injury. In fact she argues this is the most likely scenario as the line in the verdict form for both economic and non-economic damages was left blank. As noted above, there is no requirement that this portion of the verdict form be completed prior to completing a Defendant’s Verdict form. As the Court stated in Parasco v. Aetna Casualty & Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998), "the jury was not compelled to accept the plaintiff’s claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court." See Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 786 A.2d 1214 (2001).
As with liability the issue of damages was also the subject of both direct and cross examination. This resulted in some inconsistent testimony. These inconsistent complaints, as documented in the medical reports and in testimony, were available for the Juror’s consideration.
In light of the conflicting evidence with respect to the issue of liability as well as damages, it was the Jury’s task to determine the credibility of the evidence. See Schettino v. Labarba, 82 Conn.App. 445, 449, 844 A.2d 923 (2004).
Furthermore, it is within the province of the jury to believe some, none or all of the evidence by a witness including an expert witness. See, e.g., Granger v. A. Aiudi & Sons, 60 Conn.App. 36, 43, 758 A.2d 417, cert. denied, 255 Conn. 902, 762 A.2d 908 (2000). As the Court noted in Melendez v. DeLeo, 159 Conn.App. 414 (2015) the testimony of an expert witness does not need to be refuted in order for it not to be accepted by a jury.
In reviewing the evidence in the light most favorable to sustaining the verdict, the Trial Court, and the reviewing court, are bound by the Jury’s credibility determinations and all reasonable inferences the Jury could have drawn from the evidence. See also Melendez v. DeLeo, 159 Conn.App. 414 (2015); Cusano v. LaJoie et al., (AC39279) 2017; Medes v. Geico Corp., 97 Conn.App. 630, 639, 905 A.2d 1249, cert. denied, 280 Conn. 940, 912 A.2d 476 (2006); Froom Development Corp. v. Developers Realty, Inc., 114 Conn.App. 618, 632, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).
The Plaintiff is incorrect in her assertion that the Jury made a mistake and the verdict should be set aside. In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [the Supreme Court] held "the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." Wichers v. Hatch, supra, 252 Conn. 188-89. In Turner v. Pascarelli, supra, 88 Conn.App. 729. The Court held that given the conflicting evidence, and in light of the highly contested nature of the Appellant’s injuries, it cannot be said that the Jury erred in its decision. Also, in Schettino v. Labarba, 82 Conn.App. 445, 449, 844 A.2d 923 (2004) the Court held that in light of the conflicting evidence with respect to the issue of damages, it was the Jury’s task to determine the credibility of the evidence. On the basis of the evidence deduced during the trial, the jury could have concluded that the plaintiff embellished or exaggerated both the nature and the extent of her injuries. Smith v. Lefebre, 92 Conn.App. 417 (2005).
Thus, pursuant to Wichers and its progeny, the Plaintiff was not entitled to an award of economic damages or non-economic damages simply because she presented these issues to the jury. On the contrary, the plaintiff, as the party claiming non-economic damages, had the burden of proving them "with reasonable certainty." Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 476-77, 590 A.2d 431 (1991).
Simply stated, because the Plaintiff claimed damages as defined in General Statutes § 52-572h, she had the burden of proof to show that she experienced pain as the result of the accident. See also Fileccia v. Nationwide Property & Casualty Ins. Co., supra, 92 Conn.App. 486-87.
Unfortunately for the plaintiff, it is unclear whether they found Pedro Echevarria completely at fault or whether they didn’t believe the plaintiff was injured.
Under the facts and circumstances of the present case, given the conflicting evidence, it cannot be said that the Jury erred in its decision. The evidence is sufficient to allow "room for reasonable differences of opinion among fair-minded people" and, therefore, this Court must allow the Jury’s verdict to stand. Weiss v. Bergen, supra, 63 Conn.App. 813; see also Turner v. Pascarelli, supra, 88 Conn.App. 729.
As there were no jury interrogatories and the jury was not polled, this court must construe the verdict in a result most favorable to the prevailing party and conclude that the jury felt proximate cause was not proven resulting in a defendant’s verdict.
CONCLUSION
The court upholds the jury verdict and the plaintiff’s motion to set aside the verdict is denied.