Opinion
No. WWM CV 09-5004485-S
July 11, 2011
RULING RE DEFENDANT'S MOTION FOR REMITTITUR AND MOTION FOR COLLATERAL SOURCE REDUCTIONS
This case was an action by the plaintiff, Alice M. Suits, against the defendant, Kohl's Department Stores, Inc., seeking damages for injuries she sustained in a fall in the store parking lot while she was pushing a Kohl's shopping cart. The defendant filed a post-trial motion for remittitur pursuant to General Statutes § 51-216a, § 52-228b and Practice Book § 16-35 (Doc. No. 159.00), and a motion for collateral source reductions pursuant to General Statutes § 52-225a (Doc. No. 160.00). For the following reasons, the motion for remittitur is denied. Also, the court finds that the eligible credits exceed the eligible collateral source payments, so, there should be no collateral source reductions. Therefore, the court enters judgment in favor of the plaintiff and against the defendant, Kohl's Department Stores, Inc., in accordance with the jury's verdict in the amount of $258,054.85, plus costs.
I
Motions for remittitur are available under General Statutes § 52-216a. Such a motion must be filed within 10 days of the verdict. Practice Book § 16-36. The statute provides, in pertinent part, as follows:
If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.
General Statutes § 52-216a.
In applying this rule, our Supreme Court has long held that the assessment of damages is "peculiarly within the province of the jury, whose determination will be set aside only when it appears that the sum awarded is plainly excessive and exorbitant." Rutkowski v. Connecticut Light Power Co., 100 Conn. 49, 55, 123 A. 25 (1923). To warrant setting a verdict aside on this ground, the court must find that the verdict "so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Briggs v. Becker, 101 Conn. 62, 66 124 A. 826 (1924); accord, Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn.App. 637, 644, 777 A.2d 745 (2001); see, generally, R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (3rd Ed., 2003) § 196(b).
"[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits." Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). "Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury." (Citation omitted; internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929 (1999). "Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." (Citation omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 112, 663 A.2d 398 (1995).
In ruling on a motion for remittitur, the court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different result is not itself decisive. "The court's proper function is to determine whether the evidence, viewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict." (Citation omitted.) Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984).
General Statutes § 52-228b and Practice Book § 16-35 provide for motions to set aside the verdict to remedy erroneous or excessive jury verdicts. The statute provides as follows:
No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.
General Statutes § 52-228b.
The standard of review governing such motions is well settled. "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 . . . that, in the absence of clear abuse, we shall not disturb." (Citations omitted; internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).
II
In this case, Alice M. Suits sued Kohl's Department Stores, Inc., seeking damages for injuries she sustained in a fall in the store parking lot while she was pushing a Kohl's shopping cart in 2007. The plaintiff alleged that the cart was so poorly designed and inadequate for use that it caught in a simple crack in the parking lot and abruptly stopped. She was propelled across the top of the cart and to the ground, sustaining injuries. The matter was tried to a jury on April 26, 27 and 28, 2011. The jury rendered its verdict on April 29, 2011, finding for the plaintiff and awarding $48,661.47 in economic damages, consisting of plaintiff's medical and dental bills incurred, and $212,000.00 in non-economic damages. The jury found the plaintiff to be one per cent liable for her own injuries due to contributory negligence, but found that the apportionment defendant the Mansfield-Eastbrook Development Corp., was not responsible. The resulting total verdict was against Kohl's for $258,054.85.
The jury in this case heard the testimony of the plaintiff, Alice M. Suits, and her husband, Thomas Suits; Matthew Traber, EMT responder; Brent MacNamara, EMT responder; Lesek Kolodziejczak, M.D., treating physician; John Mroszczyk, PhD., safety engineer, expert witness; John Fortier, mall manager; Donna Verterane, store manager; and Aristides Young, maintenance supervisor. Evidence included a sample cart, numerous medical reports and bills, photographs and other documents.
The defendant asks the court to set aside the verdict and order a remittitur on the grounds that the jury award of $212,000.00 for non-economic damages is not supported by the proof and is excessive as a matter of law and should be reduced. Essentially, it argues that the plaintiff simply injured her shins, but she recovered nicely and after 10 months, denied pain, and was very active physically. Subsequent to her injury, she took trips to Wisconsin, Israel, Washington and Greece. It argues that the jury's award is grossly disproportionate to the actual harm. The court does not agree.
On these issues, the jury could reasonably have found that the plaintiff, who was 74 years old at the time of the accident, had a significant underlying condition that required her to take medications that made her skin paper thin. When she fell over the shopping cart, the skin on her shins were "degloved." Essentially, the skin was sheered off her shins and pushed up to her knee caps. The injuries were so deep that bone was exposed. She was found by the emergency responders in a pool of blood in the parking lot. A fellow shopper had given her diapers to wrap on her legs to forestall the bleeding.
The plaintiff spent 13 days in the hospital and 10 days in a nursing home for rehabilitation. She underwent extensive debridgement procedures and a skin graft attaching skin from her thigh to her shin. She still has physical pain and nerve sensitivity. She is no longer able to engage in vigorous physical recreation she used to enjoy. Her legs are permanently scarred, causing her embarrassment. In addition to the injuries to her legs, the plaintiff also suffered multiple cuts to her face and nose, and fractures to her two front teeth. The plaintiff's own testimony about her experience was understated, undetailed and stoic. However, the papers and photographs chronicled what could only be imagined as an injury causing excruciating pain, long recovery, impairment and disfigurement.
The jury could, and apparently did, compensate plaintiff for her demonstrated noneconomic injuries consisting of physical pain and suffering and mental and emotional suffering. General Statutes § 52-572h(a)(2); Snell v. Beamon, 82 Conn.App. 141, 147, 842 A.2d 1167 (2004). It properly considered her loss of enjoyment of life. Hamernick v. Bach, 64 Conn.App. 160, 162, 779 A.2d 806 (2001). It also properly considered the length of the remainder of her life during which she will suffer from her injuries. Jackiewicz v. United Illuminating Co., 106 Conn. 302, 308, 138 A. 147 (1927). All considered, the jury's award of $212,000.00 for non-economic damages in this case does not shock the court's sense of justice.
Moreover, in a recent case where a jury found $6,141.97 in economic damages and $100,000.00 in non-economic damages, a trial court was reversed for ordering a $40,000.00 remittitur of the non-economic damages. See Johnson v. Chaves, 78 Conn.App. 342, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). The Appellate Court ruled in that case as follows:
"[I]n ruling on a motion for remittitur, the trial court was obligated to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby." (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn.App. 165, 184, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur. See Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). Proper compensation for noneconomic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages. See Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984). The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp. 245 Conn. 1, 65, 717 A.2d 77 (1998). A generous award of noneconomic damages should be sustained if it does not shock the sense of justice. Campbell v. Gould, supra, 40.
Johnson v. Chaves. supra. 78 Conn.App. 346-47.
In light of the above, this court finds no justification to disturb the jury's verdict in the instant case.
III
As mentioned earlier, the jury awarded $48,661.47 in economic damages, consisting of medical and dental bills. The defendant has moved for collateral source reductions pursuant to General Statutes § 52-225a. That statute generally requires the court to reduce the award for such medical and dental bills by any collateral source payments, such as by payments by medical insurance covering those bills, and for certain bill adjustments that excused payment. However, it allows a credit for the amount of premiums paid to obtain those collateral source benefits. The defendant does not dispute that the plaintiff is entitled to some credits in this case. Rather, it disputes her calculations. Plaintiff, on the other hand, claims that the insurance premiums she paid, or that were paid on her behalf, exceed all of the collateral source payments, so, there should be no collateral source reduction. The court agrees with the plaintiff.
General Statutes § 52-225a provides as follows:(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid, contributed or forfeited under subsection (c) of this section, except that there shall be no reduction for (A) a collateral source for which a right of subrogation exists, and (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.
(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.
(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.
General Statutes § 52-225a (emphasis added).
This statute was enacted as part of the tort reform efforts of the 1980s. The purpose behind the enactment is to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant, and also receiving collateral source payments, such as medical insurance payments, on the same items. Jones v Kramer, 267 Conn. 336, 346, 838 A.2d 170 (2004). The issues call for the court to construe the above statute, particularly the emphasized portions.
"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Citations omitted; internal quotation marks omitted.) Grady v. Town of Somers. 294 Conn. 324, 333, 984 A.2d 684 (2009).
The court finds that the language of the statute is unambiguous with respect to the present issues. A plain reading indicates that the calculation of the collateral source reduction under these rules requires the court to (1) identify the economic damages, (2) subtract any collateral source payments, and (3) offset the collateral source payments with credits for any premium payments. The remainder, if any, is the permissible award for economic damages. The burden is on the defendant to prove the collateral source payments. The burden is on the plaintiff to prove the credits. Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 9, 848 A.2d 373 (2004).
The parties have provided the court with numerous medical bills, statements and financial records on the issues. Applying these rules to the evidence, the court finds as follows: (1) The economic damages awarded in this case totaled $48,661.47, consisting of $47,841.47 in medical bills and $820.00 in dental bills. (2) The collateral sources consisted of $21,384.82 for Medicare adjustments; $5,222.87 for Medicare payments not subject to subrogation; $671.20 for dental bills paid for by dental insurance; and $3,454.34 for medical bills paid for by Anthem insurance. The remaining bills were either paid for by the plaintiff out-of-pocket, or were subject to Medicare subrogation rights, or the payments were not documented, or were otherwise not proven or not claimed to be eligible for collateral source reduction. (3) The credits consisted of $37,135.68 for Anthem insurance premiums paid and $1,528.00 for dental insurance premiums paid. The plaintiff also claims an $11,472.00 credit for Medicare premiums paid, however, the records purporting to show that are actually Medicare refunds, not payments. Absent proof of premium payments, no additional credits will be considered. Nevertheless, the totals show that the insurance premiums paid exceeded the insurance payments or adjustments in this case even after adjusting for the plaintiff's percentage of negligence pursuant to General Statutes § 52-225a(a)(2)(B). Therefore, there should be no collateral source reductions in this case.
Adjustments required by an insurance agreement or any contract or agreement are treated as collateral sources just as much as payments would be collateral sources. See Hassett v. New Haven, 49 Conn.Sup. 7, 10, 858 A.2d 922 (2004) [ 37 Conn. L. Rptr. 735], aff'd 91 Conn.App. 245, 247, 880 A.2d 975 (2005). Medicare write-offs are adjustments required by agreement or law and, thus, are collateral sources. See McInnis v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Doc. No. CV 03-480767 (August 15, 2008, Skolnick, J.) [ 46 Conn. L. Rptr. 176].
Medicare payments for which rights of subrogation exist are not collateral sources. General Statutes § 52-225a(a)(2)(A): Brennan v. Burger King Corp., 46 Conn.App. 76, 84, 698 A.2d (1997), aff'd 244 Conn. 204, 707 A.3d 30 (1997). Medicare subrogation rights are calculated under a formula in 42 C.F.R. § 411.37. "Medicare's recovery is limited when the conditional Medicare payments that the beneficiary received are less than the amount obtained as a result of a judgment or settlement from a liable tortfeasor or its insurer. In that case, Medicare's right of recovery is limited by a proportional share of the beneficiary's procurement cost in obtaining a judgment or settlement from the liable tortfeasor." Brennan v. Burger King Corp., supra, 46 Conn.App. 85. Medicare payments for which a right of subrogation does not exist, therefore, are collateral sources. Id. at 86
"The plaintiff is entitled to a credit for premiums paid to secure [her] right to collateral source benefits starting with the initial date of the insurance policy period during which the injury occurred." Brennan v. Burger King Corp., supra, 46 Conn.App. 83.
Defendant argues that the court should not consider the totals. Rather, it argues that the court should only offset Anthem premiums against Anthem payments, and dental insurance premiums against dental insurance payments, and nothing against the Medicare adjustments or other Medicare collateral sources in this case. The court is not persuaded. The statute, in the emphasized portions cited earlier, clearly directs the court to consider totals. The statute does not suggest separate calculations for each payment and each collateral source. Therefore, the total premiums paid should count to offset the total collateral sources. Accord, Hecht v. Staskiewicz, Superior Court, judicial district of New Haven, Doc. No. CV 99 423243 (February 26, 2002, Arnold, J.). The cases cited by defendant in support of its argument are inapposite.
Defendant also argues the plaintiff should not benefit from all insurance premiums paid because the policies covered both her and her husband. Therefore, it argues, only half of the premiums should be offset. That type of argument prevailed in Piper v. Farm Family Casualty Ins. Co., Superior Court, judicial district of Hartford, Doc. No. CV 02-819836 (April 6, 2005, Miller, J.) [ 39 Conn. L. Rptr. 58]. That court, however, had available a cost schedule that permitted the court some basis to isolate the premium costs associated with the claimant or claimant's class. There is no such schedule in evidence in this case. In such situations, the court should not speculate as to how the premium payments could be divided, but, rather, should count all premium payments as the credit. See Pajor v. Town of Wallingford, Superior Court, judicial district of New Haven, Doc. No. CV 94-366807 (June 7, 1996, Hodgson, J.) [ 17 Conn. L. Rptr. 255].
IV
For all of the foregoing reasons, the defendant's motion for remittitur is denied. Also, the court finds that eligible credits offset the eligible collateral source payments, so, there should be no collateral source reductions. Therefore, the court enters judgment in favor of the plaintiff and against the defendant, Kohl's Department Stores, Inc., in accordance with the jury's verdict in the amount of $258,054.85, plus costs.