Opinion
No. CV 09-5026940-S
May 27, 2011
Following a verdict in favor of the plaintiff awarding economic damages in the total amount of $21,419.35, wherein the plaintiff's comparative negligence was found to be 50%, the defendant has moved for a collateral source reduction pursuant to General Statutes § 52-225b. Through her employer, the plaintiff participates in the New England Healthcare Employees Welfare Fund, an ERISA health and welfare benefit plan (Welfare Fund). The fund paid all her accident-related medical bills. The original lien by the Welfare Fund was $4,352.53. On December 8, 2010, the day after the verdict was returned, through legal counsel, the Welfare Fund notified the plaintiff that it would accept $2,901.69, two-thirds of the total benefits paid out on the plaintiff's behalf, in full settlement of the lien. See Plaintiff's Exhibit 9.
The jury awarded $0 non-economic damages. The verdict was returned on December 7, 2010.
A hearing was held on January 10, 2011 following which the parties filed briefs. Although they addressed the question of whether an ERISA lien is a collateral source, neither side addressed the specific issue raised herein.
Based on a spread sheet included with Plaintiff's Exhibit 9, the Welfare Fund's calculation of the total amount of medical bills was $20,684.05.
I
The first issue for resolution by the court is whether the portion of the lien forgiven by the Welfare Fund should be subject to a collateral source reduction even though there is no question that an ERISA lien is not itself a collateral source.
General Statutes § 52-225b states: "`Collateral sources' means 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. `Collateral sources' do not include amounts received by a claimant as a settlement."
In Hassett v. New Haven, 49 Conn.Sup. 7, 10, 858 A.2d 922 (2004), aff'd, 91 Conn.App. 245, 247, 880 A.2d 975 (2005), the court held that voluntary forgiveness of a debt is not a collateral source, if the payment is not made by or pursuant to "[a]ny . . . insurance" or "any contract or agreement within the meaning of § 52-225b." The Appellate Court adopted Hassett v. New Haven, supra, 49 Conn.Sup. 7, "as a proper statement of the issues and the applicable law concerning those issues." Hassett v. New Haven, 91 Conn.App. 245, 247, 880 A.2d 975 (2005). Subsequent to Hassett, trial courts have regularly concluded that contractual writeoffs by health care providers are collateral sources within the definition of that term as set forth in § 52-225b. See Olivero v. Ferrante, Superior Court, judicial District of Waterbury, Docket No. 044001161, (March 22, 2010, Sheedy, J.) [ 49 Conn. L. Rptr. 520]; Bonsanti v. Newman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 030401098 (February 3, 2006, Gilardi, J.) ( 40 Conn. L. Rptr. 700) ("[I]nvoluntary forgiveness of a debt, like the adjustments made by medical providers in this case as a condition of their contract with Blue Cross Blue Shield of Massachusetts, is a collateral source payment within the meaning of § 52-225b for the purposes of calculating a reduction in economic damages pursuant to § 52-225a"); and Furlong v. Merriman, Superior Court, judicial district of New Britain, Docket No. 044000416 (May 4, 2006, Shapiro, J.) (`The plaintiff already received the benefit of the Cigna allowance, since it was subtracted from the amount he was billed by Middlesex Hospital. He should not receive that amount again by having it included in the jury's economic damages award").
In the present case, the Welfare Fund's forgiveness of part of its lien against the plaintiff's recovery of economic damages was voluntarily made in favor of its insured. The lien itself is not a collateral source. See Gauntlett v. Webb, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 980352842 (August 13, 2003, Ballen, J.T.R.) ( 35 Conn. L. Rptr. 419) ("a self-funded welfare benefit plan under ERISA, does not qualify as a collateral source under Connecticut law pursuant to 29 U.S.C. § 1144(b)(2)(B)"). Voluntary forgiveness of a portion of an ERISA lien, like the lien itself, is not a collateral source within the meaning of § 52-225b for the purposes of calculating a reduction in economic damages pursuant to § 52-225a.
II COLLATERAL SOURCE CALCULATION
Part II constitutes the corrected portion of this memorandum.
At the request of the court, the defendant submitted a proposed order pursuant to his motion for collateral source reduction in which he claims that the total amount of collateral sources amount to $17,794.37. When this sum is subtracted from the total economic damage award of $21,419.35 it equals the sum of $3,624.98 which amount must be further reduced by the 50% comparative negligence found by the jury. Based on the defendant's calculation, the plaintiff would receive a net award of $1,812.19. On the other hand, the plaintiff argues that because payments made by the Welfare Fund to the various health care providers are not collateral sources and were accepted as payments in full, the economic damage award is not subject to any collateral source reduction. For the reasons set forth below, the court rejects the analysis and arguments of both parties.
The total economic damage award was $21,419.35. Of that amount $722.80 was awarded for lost wages which is subject to be reduced by the fifty percent (50%) comparative negligence determined by the jury but is not subject to collateral source reduction. The difference between the total economic damage award and the lost wages, $20,696.55, was awarded for medical bills and is subject to collateral source reduction in accordance with the provisions of § 52-225a(a). In pertinent part, § 52-225a(a) provides as follows: "[T]he court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section . . . except that there shall be no reduction for . . . (B) the amount of collateral sources equal to the reduction in the claimant's economic damages attributable to the claimant's percentage of negligence pursuant to section 52-572h." (Emphasis added.)
The amount of medical bills awarded by the jury was $20,696.55. The Welfare Fund calculated the total medical bills to be $20,684.05, a difference of $12.52. The discrepancy appears to be in Welfare Fund's calculation of Dr. Calley's bills. As recorded in the Plaintiff's Verdict, the Dr. Calley's bills actually total $812.50, not $800. Compare Plaintiff's Exhibits 8 and 9. The $12.50 is also a collateral source. $16,344.05 is the total amount written off or forgiven in accordance the various medical provider contracts with Connecticut Anthem Blue Cross and Blue Shield, the plaintiff's health insurance carrier. See Defendant's Exhibit E.
Section 52-225a(b) provides as follows:
(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
As previously noted, the Welfare Fund payment of $4,352.53 is not a collateral source. Therefore, the collateral source payments total $16,344.02 ($20,696.55 less $4,352.53). When reduced by fifty percent (50%) comparative negligence, the net economic damage award for the medical bills is $10,348.27, which is fifty percent (50%) of $20,696.44, the full amount of medical bills awarded by the jury. Because there can no reduction for " the amount of collateral sources equal to the reduction in the claimant's economic damages attributable to the claimant's percentage of negligence, "in accordance with § 52-225a(a), the collateral source reduction is amounts to $5,999.75. The collateral source reduction is calculated as follows:
The $16,344.05 is the collateral source reduction which reflects the total amount written off or forgiven in accordance the various medical provider contracts with Connecticut Anthem Blue Cross and Blue Shield, the plaintiff's health insurance carrier. See Defendant's Exhibit E. The Welfare Fund paid a total of $4,352.53 on behalf of the plaintiff, which is not a collateral source.
For a related discussion in what appears to be the only appellate decision on the issue of the relationship of comparative negligence to collateral source reduction, see Mack v. Lavalley, 55 Conn.App. 150, 168, cert. denied, 151 Conn. 928 (1999). ("[T]he only rational way to read the statute is that it absolutely prohibits a plaintiff from collecting more than the total amount of economic damages from the combination of all sources that are available, but the statute allows individuals the benefit of their own prudence in providing themselves with a collateral source"). In the present case, since there is no risk of double recovery to the plaintiff once the fifty percent (50%) comparative negligence reduction is applied, the defendant is only entitled to a collateral source reduction to the extent the collateral sources exceed the reduction.
361.40
Net award for medical bills reduced by 50% comparative negligence and collateral sources: $4,352.52 Lost wages ($722.80) reduced by 50% comparative negligence: $ TOTAL ECONOMIC DAMAGES $4,713.92CONCLUSION
For all the foregoing reasons, in accordance with the foregoing calculations, the motion for collateral source reduction is granted in the amount of $5,995.75. Accordingly, the judgment in favor of the plaintiff is awarded based on the following calculation:361.40
Net award for medical bills reduced by 50% comparative negligence and collateral sources: $4,352.52 Lost wages ($722.80) reduced by 50% comparative negligence: $ TOTAL ECONOMIC DAMAGES $4,713.92Accordingly, judgment is hereby ordered in favor of the plaintiff in the amount of $4,713.92 plus costs of $442.00.