Gianettiv.Riether

This case is not covered by Casetext's citator
Connecticut Superior Court Judicial District of Fairfield at BridgeportAug 24, 2011
2011 Ct. Sup. 18137 (Conn. Super. Ct. 2011)

No. CV 02-0398555 S

August 24, 2011


MEMORANDUM OF DECISION


MELVILLE, J.T.R.

FACTS

The plaintiff, Charles Gianetti, M.D., filed the present action in Small Claims court on September 12, 2002, which was subsequently transferred to the regular Superior Court docket on/about October 25, 2002. The plaintiff filed an amended complaint on April 27, 2007. In his amended complaint, the plaintiff alleges five counts against the defendants, Charles Riether, Lee Drapkin (Mr. Drapkin) and Denise Drapkin (Ms. Drapkin). Specifically, in counts one and four, the plaintiff alleges breach of contract and unjust enrichment, respectively, against Riether. In count two, the plaintiff alleges breach of contract against Mr. Drapkin. In count five, the plaintiff alleges joint spousal liability under General Statutes § 46b-37 against Ms. Drapkin. In count three, the plaintiff further seeks recovery under a quantum meruit theory against all the defendants. Finally, the plaintiff seeks prejudgment interest pursuant to General Statutes § 37-3a. At the conclusion of the trial the parties were ordered to file post-trial briefs.

Charles Riether, Mr. Drapkin and Ms. Drapkin will be referred to collectively as "the defendants."

Section 46b-37 provides in relevant part: "[I]t shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of his or her parents."

Post-trial briefs were ordered to be filed on or before August 3, 2011. The plaintiff filed a timely brief. The court received defendants' four page brief on August 12, 2011, some six days late. Consequently, the court did not consider the defendants' brief in arriving at its decision in this case.

After hearing testimony and considering the submitted evidence, the court finds the following facts. On October 2, 1995, the plaintiff, a licensed physician, provided emergency plastic surgery (emergency medical services) to a patient, Mr. Drapkin, for injuries resulting from an automobile accident. The automobile accident occurred while in the course of Mr. Drapkin's employment. The plaintiff and Mr. Drapkin did not enter into a written agreement for the emergency medical services. Sometime after the accident, Mr. Drapkin retained Riether, an attorney, to prosecute his claim for personal injuries arising out of the accident.

Following the emergency medical services, the plaintiff provided follow up medical services to Mr. Drapkin consisting of four office visits: October 10, 1995, October 16, 1995, October 28, 1996, and July 6, 2001. At his first office visit, Mr. Drapkin signed a form prepared by the plaintiff titled "New Patient Information." The form, inter alia, collected basic routine patient information from Mr. Drapkin, including the name of an insurance carrier that would be covering his medical expenses along with the carrier's file number. In addition, the form also included the following authorization and agreement: "I hereby authorize Charles D. Gianetti, M.D., to furnish information to insurance carriers concerning my illness [and] treatments. I understand that I am responsible for the payment of all fees regardless of insurance. In the event that payment of such fees is not made by me, I will be responsible for any reasonable costs of collection, including attorneys fees."(Emphasis added.) Drapkin signed this agreement. (Ex. 3.) (Emphasis added.)

These medical services will be referred to as the "follow up medical services." The documentary evidence demonstrates that the follow up medical services consisted of four office visits totaling $545. (Exs. 4, 6, 10, 14.) The plaintiff was fully reimbursed for these charges. (Ex. 15.)

About fifteen months later, on January 6, 1997, Riether sent a letter of protection assuring the plaintiff of payment for all medical services rendered in connection with the automobile accident from the proceeds of any settlement or final disposition of Mr. Drapkin's claim. (Ex. 5.) About six months later, on June 7, 1997, the plaintiff sent Riether a statement indicating the medical charges incurred for Mr. Drapkin dating from October 2, 1995, through October 28, 1996, the sum of which was $11,845. (Ex. 6.) This statement did not include a demand for immediate payment.

Typically, a letter of protection is a document by an attorney notifying a creditor that payment will be made when the case is settled or judgment is obtained. It is this court's understanding that such letters are a common practice by attorneys representing personal injury plaintiffs in order to assure forbearance in the payment of medical expenses.

On or about January 5, 1999, the plaintiff sent Mr. Drapkin and Ms. Drapkin a bill for $11,845 demanding immediate payment, which included a statement that "[i]nterest will start accruing on this account." (Ex. 7.) The bill also included a rubber stamped advisory: "This is an effort to collect a debt. Any information obtained will be used to do so." Id. The following month, on February 8, 1999, the plaintiff sent a second bill for $11,845, which included a charge of $100 for "[i]nterest." (Ex. 8.)

This amount later increased to $12,020 after charges of $175 were added in connection with follow up medical services provided on July 6, 2001.

By the court's calculation, ten percent interest per annum on $11,845 equals $1,184.50; $1,184.50 divided by twelve equals $98.71 per month; $98.71 per month divided by thirty equals $3.29 per day. The plaintiff, however, claimed $100 in interest for one month, which was $1.30 in excess of that provided for under § 37-3a. When this discrepancy was pointed out to the plaintiff in closing argument, his explanation for the excess charge was that the period was two days more than a thirty-day period. However, his numbers do not jibe, as $3.29 per day multiplied by two equals $6.58, meaning that he technically shortchanged himself by $5.28. The more logical explanation is that he merely miscalculated the interest and overcharged Mr. Drapkin and Mrs. Drapkin.

However, on June 15, 1999, consistent with Riether's letter of protection, the plaintiff sent a letter to Riether requesting the status of Mr. Drapkin's personal injury claim and inquired when the plaintiff could expect payment. (Ex. 9.) The plaintiff also attached a copy of the June 1997 statement of the charges for the medical services provided to Mr. Drapkin. The evidence discloses that this is the first time that the plaintiff advised Riether that interest was accruing on the debt from January 5, 1999. The evidence is devoid of any response to this communication by Riether.

Subsequently, Mr. Drapkin's claim was settled with the workers' compensation carrier. However, the precise date of the settlement is uncertain. On or about September 24, 2001, the Hartford Medical Management Center (the insurance) sent an "Explanation of Reimbursement" to the plaintiff. The insurance company reimbursed the plaintiff for all emergency medical services and follow up medical services with the exception of $75.46. This discrepancy is reflected in the first item on the "Explanation of Reimbursement." The plaintiff charged $425 for the first item, but was only reimbursed by the insurance company for $349.54. (Ex. 4, 15.) Therefore, the $75.46 difference accounts for the plaintiff's present claim on the principal debt. The plaintiff, however, is also seeking damages against all the defendants for $4,532.54 in prejudgment interest pursuant to § 37-3a. Nevertheless, there is an additional discrepancy in the plaintiff's calculation of interest as it appears on the plaintiff's final invoice dated October 1, 2006. This computation discrepancy substantially overcharges the defendant for interest pursuant to § 37-3a for the period indicated and tends to undermine the plaintiff's credibility.

The plaintiff conceded in oral argument, as he must, that he is not entitled to any interest due to an agreement to pay the same. The record is devoid of any evidence of an agreement by the defendants to pay interest on the outstanding debt. The plaintiff claims that the interest is based solely on § 37-3a. The plaintiff is also not entitled to attorneys fees, as he represented himself throughout this matter.

For example, in examining the interest charged since July 18, 2001, on the plaintiffs from October 1, 2006, invoice, the plaintiff charged the defendant $1,598 in statutory interest accruing after July 18, 2001; a period of five years and seventy days. The plaintiff, however, has acknowledged receipt of all, but $75.46, as of July 18, 2001; (Ex. 14.); which according to the evidence was the only amount unpaid as of that date. Therefore, the only amount on which the interest could attach was the $75.46. See Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 428, (2004), cert. denied, 268 Conn. 922 (2004) ("[t]o award § 37-3a interest . . . the claim to which the prejudgment interest attaches must be a claim for a liquidated sum of money wrongfully withheld . . .") (Emphasis Added.). However, by the court's rough calculations, $75.46 multiplied by ten percent equals $7.55 per year divided by 360 equals .02 per day. From this calculation, five years at $7.55 per year would yield $37.75. Seventy days at .02 per day yields $1.40 for a total accrued interest of $39.15. It would therefore appear that the plaintiff overcharged the defendant approximately $1,558.85 in statutory interest.

I Two Separate Obligations

In order to decide the present case, the court will first determine whether Mr. Drapkin owes an obligation to the plaintiff for the emergency medical services rendered on October 2, 1995. Additionally, it is necessary to decide whether this obligation includes the follow up medical services rendered on the four subsequent dates or alternatively, whether the follow up medical services are an entirely separate obligation.

"The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 813, 3 A.3d 992 (2010). Furthermore,

The rules governing contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete. (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

"The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy . . . [T]he degree of certainty required may be affected by the dispute which arises and by the remedy sought." (Citations omitted; internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 223, 972 A.2d 666 (2009).

"Whether a term is essential turns on the particular circumstances of each case." (Internal quotation marks omitted.) Coady v. Martin, 65 Conn.App. 758, 766, 784 A.2d 897 (2001), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002).

Therefore, a court will not make for parties a contract which they themselves did not make. Electric Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007).

At the same time, this court recognizes the principles surrounding an implied in law contract.

"[A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made." (Internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 224 n. 7, 975 A.2d 1266 (2009).

Moreover, an implied in law contract is an obligation to pay imposed by law because of some special relationship between the parties. Black's Law Dictionary (9th Ed. 2009). The special relationship in this case was that of Doctor-Patient. When the trier of fact determines that an implied contract for services existed between the parties, the plaintiff is entitled to the reasonable value of services rendered. Stewart v. King, 121 Conn.App. 64, 73, 994 A.2d 308 (2010).

The court finds that the circumstances under which the emergency and follow up medical services were rendered, the time span between the first and second series of treatments, and the location of the treatments administered as well as the nature of Drapkin's obligations support the conclusion that the events in this dispute were the subject of two separate obligations. Specifically, the court finds that the first agreement includes all of the emergency medical services rendered on October 2, 1995, which constitutes an implied in law contract. The medical services underlying the first agreement occurred in an emergency room where Mr. Drapkin underwent extensive and apparently painful plastic surgery requiring topical anesthesia. The plaintiff's evidence does not indicate that there was any discussion of financial arrangements. Furthermore, under these circumstances, it is evident that Mr. Drapkin was in no condition to fully understand that he was agreeing to pay the doctor the actual charges, and therefore, did not enter into an oral or written agreement to do so. Although Mr. Drapkin did not enter into an expressed contract with the plaintiff, the present circumstances warrant a finding that the emergency medical services rendered on October 2, 1995, resulted in an implied in law contract. Mr. Drapkin received considerable medical services, and thus, the court finds that justice requires the law to find an obligation to pay for the reasonable value of those services. Stewart v. King, supra.

Although an implied in law contract is more of an obligation rather than an agreement, for discussion purposes, the two obligations will be referred to individually as "the first agreement" and "the second agreement."

In contrast, the second agreement includes the follow up medical services. This agreement occurred eight days after the emergency medical services were rendered. The second agreement was in the form of a written agreement in which Mr. Drapkin promised to pay the plaintiff's fees for future medical treatment. The promise to pay the fees was irrespective of whether they were covered by any insurance. This was not an extension of the first agreement, as the emergency medical services had already been performed and an obligation to pay had been established. Rather, it was a new, different and more onerous agreement, where Mr. Drapkin explicitly assumed the obligation to pay the plaintiff for any follow up medical services and agreed to pay the reasonable costs of collection of any amount unpaid.

Furthermore, the court notes that because the second agreement was prepared by the plaintiff and presented to Mr. Drapkin before any additional medical services were administered, Mr. Drapkin had little choice in the matter other than to "take it or leave it" if he wanted the plaintiff to continue treating him. Consequently, it was a contract of adhesion. See Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 264 n. 6, 757 A.2d 526 (2000) ("[the] most salient feature [of a contract of adhesion] is that they are not subject to the normal bargaining processes of ordinary contracts" [internal quotation marks omitted]). "[Adhesion contracts] tend to involve standard form contract[s] prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms . . ." (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 504, 909 A.2d 43 (2006). As such, where there is any ambiguity regarding the second agreement's terms, it is to be resolved in favor of Mr. Drapkin, who did not draft the contract and occupied the weaker bargaining position. David M. Somers Associates, P.C. v. Busch, 283 Conn. 396, 405 n. 10, 927 A.2d 832 (2007) (under "the doctrine of contra proferentem . . . ambiguities in a contract are construed against the party who had drafted the contract").

See also Black's Law Dictionary (9th Ed. 2009) ("a standard-form contract prepared by one party, to be signed by another party in a weaker position . . . who adheres to the contract with little choice about the terms").

"The premise behind the rule is simple. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests . . . A further, related rationale for the rule is that [s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter . . . Although the contra proferentem rule traditionally has been applied in the context of insurance contracts, we see no reason to distinguish between insurance companies and other drafters with superior knowledge, particularly in the fiduciary context . . ." (Citation omitted; internal quotation marks omitted.) David M. Somers Associates, P.C. v. Busch, supra, 283 Conn. 405 n. 10.

The significance of finding two separate obligations is that it establishes the framework for the various theories of recovery litigated by the plaintiff within this case. The first agreement is consistent with the plaintiff's quantum meruit theory, as alleged in count three of the amended complaint. On the other hand, the second agreement supports the plaintiff's theory of an express contract, as alleged in count one and count two. Based on this premise, the court will now address the issues in connection with the two separate agreements.

II Count Three: Quantum Meruit

In count three, the plaintiff seeks to recover against all the defendants pursuant to the theory of quantum meruit. Quantum meruit literally means "as much as he has deserved." Blacks Law Dictionary 7th Ed., 1999. Quantum meruit is a form of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties. Stewart v. King, supra, 72-73. Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, therefore, the plaintiff is entitled to the reasonable value of services rendered. It is the remedy available to a party when the trier of fact determines that an obligation to pay is imposed by the law. The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to him that he would be compensated in the future, impliedly promised to pay for those services. Id., 73.

"[Q]uantum meruit . . . has been utilized when the benefit received was the work, labor, or services of the party seeking restitution." (Internal quotation marks omitted.) Schirmer v. Souza, 126 Conn.App. 759, 766, 12 A.3d 1048 (2011).

In the present case, the plaintiff seeks to recover $75.46 pursuant to the first agreement. Of the $11,475 billed under the first agreement, all but $75.46 was paid to the plaintiff. (Exhibit 15.) This amount is reflected in the evidence submitted at trial. On the first item of the plaintiff's statement dated September 3, 1996, the plaintiff charged $425 for the particular treatment. The insurance company, however, only reimbursed the plaintiff for $349.54 for this treatment. (Exs. 4, 15.) Therefore, $75.46 is the only amount included in the first agreement that remains outstanding.

The record, however, is devoid of any evidence that $425 was the reasonable value of such service, and the plaintiff failed to set forth any evidence in support of his position. The plaintiff failed to offer additional evidence concerning the reasonable value of the services. The plaintiff provided no evidence as to what similar doctors or physicians charge for similar work. The plaintiff provided no evidence concerning his usual and customary charges for similar work. The plaintiff provided no evidence as to the number of hours spent, his hourly rate, or the cost or value of any materials provided. In short, the plaintiff failed to sustain his burden of proving the reasonable value of this particular medical service.

The plaintiff alleges the reasonable value of his charges in his amended complaint. (Am. Compl. Count Three ¶ 14.) In proof of such allegations the plaintiff offered the insurance company's invoice (exhibit 15). That document, however, indicated that the value of the first item in his invoices was worth only $349.54, not the $425 of which he charged. This was in conflict with his own self-serving assessment of the value for the same item.

Additionally, there is evidence from which the court can and does find that the reasonable value of the first item was only $349.54. The court takes judicial notice that health insurance companies typically reimburse physicians for the usual and customary charges for similar medical services by area physicians. The amount reimbursed is prima facie evidence of the reasonableness of such charges. The plaintiff has failed to rebut such evidence. Consequently, the court finds that the plaintiff was fully compensated therefor. Accordingly, the plaintiff is not entitled to the outstanding balance of $75.46. Based on the foregoing, judgment shall enter on count three of the amended complaint in favor of all the defendants with costs taxed to the plaintiff.

"Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed . . . The underlying theory is that proof by evidence concerning a proposition may be dispensed with where the court is justified, by general considerations, in declaring the truth of the proposition without requiring evidence from the party . . . This theory goes no further, however, than to mean that the proposition is taken as true without an offer of proof by the party who should ordinarily have offered it . . . The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion . . . Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case . . . Whether to take judicial notice of a fact is a function of the exercise of judicial discretion." (Citations omitted; internal quotation marks omitted.) State v. Martin, 77 Conn.App. 818, 825-26, 827 A.2d 1 (2003).

III Breach of Contract Against Mr. Drapkin

In count two, the plaintiff alleges breach of contract against Mr. Drapkin. The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). In the present case, the second agreement was a written contract entered into approximately a week after the plaintiff rendered the emergency medical services to Mr. Drapkin. The second agreement includes the follow up medical services rendered on October 10, 1995, i.e., October 16, 1995, October 28, 1996, and July 6, 2001. As previously noted, the documentary evidence demonstrates that the follow up medical services consisted of four office visits totaling $545. (Exs. 4, 6, 10, 14.) Inasmuch as the evidence demonstrates that the plaintiff was fully reimbursed by the insurance company for these charges. (Ex. 15.) there was no breach. Accordingly, for the foregoing reasons, judgment shall enter on count two of the amended complaint in favor of Mr. Drapkin with costs taxed to the plaintiff.

As previously noted, quantum meruit only applies when there is no express contract between the parties. The second agreement, however, was an express contract, and therefore, a quantum meruit claim pursuant to the second agreement is inapplicable.

IV Breach of Contract Against Riether

In count one, the plaintiff alleges breach of contract against Riether based on his conditional promise to pay the plaintiff from proceeds received by his office in settlement or final disposition of Mr. Drapkin's claim. In support of this claim, the plaintiff submitted the letter of protection sent by Riether. For the following reasons, the court finds that based on the letter of protection, the plaintiff is not entitled to recover $75.46 pursuant to a breach of contract claim.

At the outset, it should be noted that since the plaintiff is not legally entitled to recover the principal sum of $75.46 for the reasons already indicated by the court, a fortiori, the plaintiff is not entitled to recover from Riether on his guarantee. Additionally, Riether's liability is conditioned on him actually receiving the $75.46. "A conditional guaranty contemplates as a condition of liability on the part of the guarantor the happening of some contingent event other than the default of the principal debtor." (Internal quotation marks omitted.) Morrissey v. Ottman, 23 Conn. Cir.Ct. 109, 112, 177 A.2d 223 (1961). Pursuant to the letter of protection, Riether is not responsible under his conditional promise to pay out of a fund held by him unless he has in fact received those funds. There is no evidence in the record indicating that Riether ever received the $75.46 or retained any funds to which he was not entitled. Consequently, Riether is not liable for the $75.46.

"A guarant[y] is a contract." D'Amato Investments, LLC v. Sutton, 117 Conn.App. 418, 423, 978 A.2d 1135 (2009). "[A] guarantee is a promise to answer for the debt, default or miscarriage of another . . . It is simply a species of [a] contract." (Citations omitted; internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners, 59 Conn.App. 160, 164, 756 A.2d 299 (2000). "To establish a prima facie case of entitlement to recover on [a] [g]uaranty . . . [the] plaintiff must show (1) that it is owed a debt from a third party; (2) that [the] defendant made a guaranty of payment of the debt; and (3) that the debt has not been paid by either the third party or [the] defendant." (Emphasis in original.) Chase Manhattan Bank, N.A. v. Harris, 899 F.Sup. 64, 67 (D.Conn. 1995).

Neither party could with any degree of certainty recall if they received payment from the insurance company. Indeed, the plaintiff claimed that he was never informed of any settlement. Since it is the plaintiff's burden to prove that Riether actually received funds from any settlement of the defendant's claim, which he failed to remit, the court concludes that there was a fatal failure of proof on that issue.

With regard to the prejudgment interest, the letter of protection specified that the subject of the guaranty was the plaintiff's claim for medical services; not accrued interest. There is no evidence in the record that interest of any kind was a part of the agreement contained in the letter of protection. Furthermore, the plaintiff conceded at trial that he is not relying on any agreement to pay interest. Rather, the plaintiff is seeking to recover statutory interest under § 37-3a against all the defendants, including Riether on the basis of his letter of protection.

For all the foregoing reasons, the court concludes that there was not a breach of a contract predicated on the letter of protection as alleged in the count one of the amended complaint. Accordingly, judgment shall enter in favor of Riether on count one of the amended complaint with costs taxed to the plaintiff.

V Unjust Enrichment Against Riether

In count four, the plaintiff seeks to recover against Riether pursuant to a theory of unjust enrichment.

[W]herever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed . . . Under such circumstances, the basis of the plaintiff's recovery is the unjust enrichment of the defendant . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment. (Internal quotation marks omitted.) Stewart v. King, supra, 121 Conn.App. 70-71.

It is the plaintiff's burden to prove each element of this cause of action if he is to recover under this theory. Gianetti v. Gerardi, Superior Court, judicial district of Fairfield, Docket No. CV 01 0384501 (December 23, 2010, Bellis, J.), citing Garwood Sons Construction Co. v. Centos Associates Ltd. Partnership, 8 Conn.App. 185, 187-88, 511 A.2d 377 (1986).

In the present case, the plaintiff fails to provide any evidence that Riether ultimately retained any insurance proceeds for his own benefit. Inasmuch as the plaintiff has failed to prove the first element of an unjust enrichment claim, i.e. that Riether was benefited therefore judgment shall enter in favor of Riether on count four of the amended complaint with costs taxed to the plaintiff.

See Gianetti v. Gerardi, supra, Superior Court, Docket No. cv01 0384501 (finding that the record did not provide evidence that the attorney retained insurance proceeds for his own benefit).

VI Count Five: Section 46b-37

In count five, the plaintiff alleges that Ms. Drapkin is responsible for the necessary medical services under § 46b-37. Inasmuch as the court has found that Mr. Drapkin is not liable for the $75.46 for the reasons already articulated, a fortiori, Ms. Drapkin is not responsible for that amount under § 46b-37. Additionally, in view of the court's discussion of quantum meruit supra, Ms. Drapkin is not liable under count three for the reasonable value of the alleged unreimbursed services. Accordingly, judgment shall enter in favor of Ms. Drapkin on counts three and five of the amended complaint with costs taxed to the plaintiff.

VII Prejudgment Interest under § 37-3a

Section 37-3a provides in relevant part:

[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . . (Emphasis added.)

To award § 37-3a interest, two components must be present. First, the claim to which the prejudgment interest attaches must be a claim for a liquidated sum of money wrongfully withheld and, second, the trier of fact must find, in its discretion, that equitable considerations warrant the payment of interest. Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 428, 840 A.2d 578, cert. denied, 268 Conn. 922, 846 A.2d 881 (2004). Furthermore,

Connecticut's case law has established that such interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted . . . If interest is due, it is an element of damages . . . Whether to include interest as damages is an equitable determination for the trial court and interest may be awarded at the statutory rate from the time the money becomes due. (Citation omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 568, 905 A.2d 1214, cert. denied, 280 Conn. 942, 912 A.2d 479 (2006).

A

In the present case, the plaintiff cites to Kevin W. Conway's comment in the Connecticut Bar Journal entitled "Interest as Damages in Connecticut," for the proposition that section § 37-3a "interest [is] . . . awarded as a matter of right . . ." 30 Conn B.J. 407-11 (1956). This argument, however, is misplaced. Our Supreme Court recently stated:

It is well settled . . . that [t]he court's determination [as to whether interest should be awarded under sec 37-3a] should be made in view of the demands of justice rather than through the application of any arbitrary rule . . . Sosin v. Sosin, 300 Conn. 205, 229 (2011).

and, "Because § 37-3a provides that interest may be recovered . . . it is clear that the statute does not require an award of interest in every case which money has been detained after it has become payable." (Emphasis in original; internal quotation marks omitted.) Id. at 228; see also Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005) ("[t]he fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful" [emphasis added; internal quotation marks omitted]).

Aside from the fact that the Connecticut Bar Journal is merely persuasive authority, the article is inconsistent with the latest holdings of our appellate courts with respect to the proper construction of § 37-3a. Current law is consistent with the proposition that the award of interest is discretionary, not a matter of right. This court is required to follow current law as it applies to this case.

B

Next, the plaintiff claimed at trial that he is entitled to prejudgment interest at the maximum rate provided in the statute because the debt is liquidated. The court disagrees. The debt in question is not liquidated nor is a claimant entitled to the maximum interest rate as a matter of law. Our Supreme Court has defined a liquidated debt as follows:

The plaintiff argues that he is entitled to recover interest on the interest that has already accrued because that accrued interest has become a liquidated sum. The court is unaware of any authority for such an interpretation of § 37-3a nor has the plaintiff cited any. Consequently, the court rejects this argument.

When a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one . . . An amount claimed to be due is a liquidated sum when it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged. (Internal quotation marks omitted.) Forster v. Gianopoulos, 105 Conn.App. 702, 707, 939 A.2d 1242 (2008).

Furthermore,

Unliquidated damages, on the other hand, are those which are not yet reduced to a certainty in respect to amount, nothing more being established than the plaintiff's right to recover; or such as cannot be fixed by a mere mathematical calculation from ascertainable data in the case. (Internal quotation marks omitted.) Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 166, 475 A.2d 310 (1984).

Specifically, in order to recover under § 37-3a, the plaintiff must have alleged and proven the debt was liquidated. Furthermore, a recent appellate decision has rejected the notion that a claimant may recover unliquidated damages under sec 37-3a despite an early 20th century case holding that unliquidated damages could be recovered under 37-3a.

"We have found one contrary case as to the lack of a need for a liquidated sum in order to obtain [§ 37-3a] interest, penned in the early years of the twentieth century. Loomis v. Gillett, 75 Conn. 298, 53 A.581 (1902). Although the case has never been overruled, it has never been cited for the proposition that prejudgment interest is appropriate when damages are unliquidated. We conclude that the reasoning of that case has not been adopted in cases decided after 1902." Travelers Property Casualty Co. v. Christie, supra, 99 Conn.App. 765, n. 13. (2007).

As previously noted, the $75.46 sought by the plaintiff was based on the reasonable value of services pursuant to the implied in law contract, and therefore, the damages sought thereunder were necessarily unliquidated. See General Supply Construction Co. v. Goelet, 149 App.Div. 80, 88, 133 N.Y.S. 978 (1912) ("[t]he plaintiff's claim on the theory of a quantum meruit is necessarily unliquidated and incapable of determination by . . . an arithmetical calculation"); see also George v. Double-D Foods, Inc., 155 Cal.App.3d 36, 46, 201 Cal.Rptr. 870 (1984) ("[a]s a rule, the amount of damages in an action on quantum meruit is held to be an unliquidated claim, in that the amount due must be determined from a presentation of evidence as to the extent, character and value of the plaintiff's services"). As a result, the court finds that § 37a-3, prejudgment interest does not apply to the plaintiff's present claim.

With regard to plaintiff's claim that he is entitled as a matter of right to the maximum amount of interest specified in the act, our Supreme Court has construed the terms "and no more" in § 37-3a to mean that the 10% rate is the maximum that may be recovered. Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 765-66, 699 A.2d 81 (1997). Therefore, the rate of interest to be awarded is also subject to judicial discretion. Id.

C CT Page 18150

Finally, aside from the fact that the court finds that the medical charges subject to the second agreement have been paid in full, the court also finds that the second prerequisite to awarding such interest has not been satisfied in that there are no equitable considerations in this case that warrant the award that the plaintiff seeks for the following reasons.

First of all, the plaintiff, almost two years after the follow up medical services were rendered, unilaterally purported to change the terms of the agreement in mid-stream to require the payment of statutory interest on the principal debt. The plaintiff had no right to do so, as this type of interest or its rate is not to be awarded as a matter of right, but rather, is subject to judicial discretion. Ceci Bros, Inc v. Five Twenty-one Corp., supra. Moreover, any such addition to the written agreement represented a substantial change to the original agreement and would therefore require the consent of the debtor. The record is devoid of any such consent. See, Duplissie v. DeVine, supra.

Next, even if interest were to be awarded, the plaintiff claims a higher rate of interest than he would have been entitled to when he knew or should have known better. See n. 9, supra. Nevertheless, the plaintiff persisted in billing and invoicing Mr. Drapkin and Ms. Drapkin for the higher rate of statutory interest as if the plaintiff were entitled to it as a matter of right when he knew the law to be to the contrary. The court finds this course of conduct to be unfair, unconscionable and unacceptable, especially from a person who practices the honorable profession of medicine. Although a laymen, the plaintiff has brought numerous pro se lawsuits for the recovery of medical services in this judicial district.

Moreover, the plaintiff surely understands the basic legal rules applying to debt collection; the rubber stamped caveat on exhibits seven and eight are a perfect example. Therefore, the plaintiff was well aware of the laws governing collection of debts.

Lastly, the court is unaware of any legal authority authorizing the court to award the losing party § 37-3a interest nor has the plaintiff offered any such authority in his brief. In fact, § 37-3a interest may only be awarded to the prevailing party. See, Sosin v. Sosin, supra, 230. For the foregoing reasons, the court declines to award any damages to the plaintiff under § 37-3a.

CONCLUSION

In summary, judgment is hereby entered in favor of all defendants on all counts of the amended complaint; no 37-3a interest is awarded in this case. Costs to be taxed to the plaintiff.


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