Opinion
CV086000756.
12-12-2012
Lori SHRIVER v. WAL-MART STORES, INC.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
On June 25, 2008, the plaintiff, Lori Shriver, filed a complaint against the defendant, Wal-Mart Stores, Inc. (Wal-Mart) for injuries which occurred on the defendant's premises in Lisbon, Connecticut on July 17, 2006. On August 20, 2009, the plaintiff filed an offer of compromise which offered to settle her claims and stipulate to a judgment against Wal-Mart for $100,000. The offer expired without being accepted by the defendant. On April 12, 2012, a jury found for the plaintiff and awarded damages in the amount of $654,000 against the defendant. On July 19, 2012, the plaintiff filed a motion for prejudgment interest in the amount of $207,780 pursuant to Practice Book § 17-18 and General Statutes § 52-192a. The defendant filed an objection to the plaintiff's motion and a memorandum of law in opposition on July 27, 2012. A response to the defendant's objection was filed by the plaintiff on August 2, 2012. The matter was heard at short calendar on August 27, 2012.
DISCUSSION
Section 52-192a provides in relevant part: " (a) [A]fter commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain ... The plaintiff shall give notice of the offer of compromise to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself. Within thirty days after being notified of the filing of the offer of compromise and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise ... If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled. Any such offer of compromise and any acceptance of the offer of compromise shall be included by the clerk in the record of the case ... (c) After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount ... the court shall add to the amount so recovered eight per cent annual interest on the difference between the amount so recovered and the sum certain specified in the counterclaim plaintiff's offer of compromise. The interest shall be computed from the date the complaint in the civil action ... was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such complaint or application. If such offer was filed later than eighteen months from the date of filing of the complaint or application, the interest shall be computed from the date of the offer of compromise was filed. The court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly ..."
In the present case, the plaintiff moves for prejudgment interest and attorneys fees pursuant to Practice Book § 17-18 and § 52-192a based on her offer of compromise filed on August 20, 2009. The defendant did not respond to the offer within thirty days as prescribed by § 52-192a. The defendant objects and argues that the plaintiff's motion should be denied as a matter of equity and fundamental fairness. The plaintiff counters that the defendant's position is unsupported by any legal precedent.
" An offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain ... Obviously, if injuries worsen as time passes, damages will increase, and, if injuries mend, damages will decrease. These are the vagaries of offers of settlement ... There is only one claim underlying the plaintiff's action, although its value may change. [T]he plaintiff made an offer to settle that claim, including present and future damages arising from injuries known and unknown as of that date." (Citation omitted; emphasis added; internal quotation marks omitted.) Lutynski v. B.B. & J. Trucking, Inc., 31 Conn.App. 806, 813-14, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994).
Our appellate courts have defined the role of the trial court with regard to the awarding of interest pursuant to § 52-192a. " [A]n award of interest under § 52-192a is mandatory, and the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts ... The statute is admittedly punitive in nature ... It is the punitive and aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases ... The purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources ... [T]he strong public policy favoring the pretrial resolution of disputes ... is substantially furthered by encouraging defendants to accept reasonable offers of judgment ... Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement ... In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." (Citation omitted; internal quotation marks omitted.) Dilieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 153, 998 A.2d 730 (2010).
" [A]fter trial, the statute directs the trial court to examine the record and, if the record reveals that the statutory conditions for offer of compromise interest are met, to award interest ... The trial court's function in this process is nondiscretionary ... [T]he statutory requirement of an examination of the record makes it clear that the legislature intended to give the court a ministerial task ... rather than an adjudicative one." (Citations omitted; emphasis added; internal quotation marks omitted.) Yeager v. Alvarez, 302 Conn. 772, 782, 31 A.3d 794 (2011). " General Statutes § 52-192a provides for mandatory imposition of interest at a set rate ... and affords no allowance for the discretion of the court." (Citation omitted; emphasis in original.) Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 430, 840 A.2d 578 (2004); Dilieto v. County Obstetrics & Gyne. Group, supra, 297 Conn. at 153.
In the present case the defendant argues that the plaintiff's motion for prejudgment interest should be denied as a matter of fundamental fairness and equity because at the time of the offer of compromise the plaintiff was aware she had undergone surgery, but failed to disclose this to the defendant until she was deposed on November 19, 2009. The defendant argues that at the time of the offer it was in possession of discovery responses from the plaintiff describing a soft tissue injury and approximately $13,000 in medical bills as well as a lengthy history of pre-existing injury and disability. As a result, the defendant argues that absent knowledge of the plaintiff's surgery and its related costs, it was not in possession of the information it needed to make an informed decision with regard to the plaintiff's offer prior to its expiration. In response, the plaintiff argues that her motion for prejudgment interest should be granted because she has complied with § 52-192a and Practice Book § 17-14 in the filing of her offer of compromise on August 20, 2009. The plaintiff further argues that she provided the defendant with responses to its standard interrogatories and requests for production with full Health Insurance Portability and Accountability Act (HIPAA) authorizations on October 1, 2008, that she supplemented her discovery responses on six separate occasions, that she filed expert disclosures on November 24, 2008 and April 17, 2009 both of which included Dr. Mark Blechner as treating physician for the plaintiff, and during her deposition in November 2009, she notified defense counsel of the surgery occurring on October 28, 2008.
With regard to the defendant's argument, it cites Ellison v. Dulatre, Superior Court, judicial district of New Haven, Docket No. CV 07 5015686 (June 12, 2008, Bellis, J.) (45 Conn. L. Rptr. 718), and Wu v. Lockhart, Superior Court, judicial district of Fairfield, Docket No. CV 07-5012213 (November 7, 2008, Bellis, J.) (46 Conn. L. Rptr. 571), and argues that similar to the present case, the plaintiff created a situation where the defendant " clearly was not in possession of the information it needed to make an informed decision on the legitimacy of the plaintiff's [o]ffer prior to its expiration." In the cases cited by the defendant, the court granted an extension of the statutory thirty day response time based-on reasoning that the defendants should not be penalized for failure to accept an offer when the plaintiff failed to meet his/her discovery obligations. In both of these cases, the court found the statutory language of § 52-192a to be directory, not mandatory with regard to the time for response and granted the requests based on concerns with the completion of discovery, however, our Superior Courts are split on this issue. See Goldrich v. United Services Automobile Association, Superior Court, judicial district of New London, Docket No. CV 10 60033468 (April 1, 2011, Cosgrove, J.) (51 Conn. L. Rptr. 655). In other instances, our trial courts have declined to extend the statutory time for response notwithstanding concerns with regard to discovery raised by the defendants. See Bernache v. Wheeler, Superior Court, judicial district of Tolland, Docket No. CV 10 6000999 (July 26, 2010, Sferrazza, J.) (50 Conn. L. Rptr. 393); See also Cohen v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 317327 (May 24, 1996, Levin, J.) (17 Conn. L. Rptr. 181).
In Ellison v. Dulatre, supra, Superior Court, at Docket No. CV 07 5015686, the defendant's motion for an extension of time was granted when the defendant had aggressively pursued discovery after which the plaintiff produced only limited medical records related to treatment within the first two days of the accident. In Wu v. Lockhart, supra, Superior Court, at Docket No. CV 07 5012213, the motion for an extension of time was granted after repeated delays in the plaintiff's compliance with discovery requests prior to the plaintiff's deposition. These cases are also distinguishable because the motions were for an extension of time to respond to an offer of compromise and were made prior to trial. The court is not persuaded by the defendant's argument that these circumstances are similar to the present case where there was no request for an extension of time to respond and the issue of insufficient discovery is raised by the defendant only after judgment for the plaintiff and a subsequent motion for prejudgment interest.
Challenges to prejudgment interest grounded on offers of compromise with issues related to discovery have been addressed by our appellate courts. The defendant's argument runs counter to this case law. In Yeager v. Alvarez, supra, 302 Conn. at 772, a trial court's granting of a motion to strike an offer of compromise from the record based on issues with discovery, which eliminated the plaintiff's ability to collect prejudgment interest, was reversed by our Supreme Court. In this case, the plaintiff disclosed medical information relating to recently performed surgery after expiration of the offer of compromise; the defendant argued that the offer should be stricken from the record because the plaintiff failed to meet her continuing duty of disclosure under Practice Book § 13-15. In reversing the trial court's decision, the Supreme Court held that although the trial court had authority to impose sanctions for failure to comply with discovery, it abused its discretion in granting the motion because even though the plaintiff violated her discovery obligations, had the defendants actually reviewed all of the information provided to them they would have reasonably concluded the plaintiff had undergone surgery. Id.
In addition, a trial court denied prejudgment interest when the plaintiff amended the complaint to add previously undiagnosed injuries after expiration of the time in which the defendant could have accepted the offer of compromise to settle. See Lutynski v. B.B. & J. Trucking, Inc., supra, 31 Conn.App at 813-14. After a jury award that exceeded the amount of the offer, the court denied prejudgment interest based on the defendant's argument that the additional injury claim did not exist when the defendant decided whether to accept the offer of compromise. The Appellate Court reversed this decision stating that offers of compromise include present and future damages arising from injuries known and unknown as of that date. Id. Of note, the defendant in the present case also cites language that " an offer of compromise is an offer to settle claims both known and unknown" in its objection to the motion for the award of prejudgment interest.
In the treatment of cases addressing prejudgment interest, our appellate courts emphasize the punitive intent of § 52-192a, the public policy of encouraging the settlement of cases to avoid the waste of judicial resources, and the mandatory, nondiscretionary imposition of interest at the statutory rate when the record includes an offer of compromise and the jury awards damages in excess of the amount contained in the offer. Dilieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 153; Yeager v. Alvarez, supra, 302 Conn. at 782; Ceci Bros., Inc. v. Five Twenty-One Corp., supra, 81 Conn.App. at 430. As a result, based on the foregoing case law and the reasons set out above, the court rejects the defendant's argument and must grant the plaintiff's motion for prejudgment interest.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for prejudgment interest is granted.