No. CV 04 4001534 S
March 21, 2007
MEMORANDUM OF DECISION RE #116 OBJECTION TO MOTION FOR ADDITUR MOTION #117 MOTION FOR ADDITUR MOTION
The plaintiff alleges in her complaint that on August 26, 2003 she was involved in an automobile accident with an uninsured tortfeasor. She alleges that as a result of the tortfeasor's negligence she sustained an exacerbation of a pre-existing injury to her cervical spine. She also alleges that she sustained two thousand and sixty dollars ($2,060.00) in medical expenses and one thousand six hundred and twenty dollars and sixty-six cents ($1,620.66) in loss wages.
The plaintiff alleges that she filed a claim with her insurance company pursuant to the uninsured motorist provisions of her insurance policy, but the defendant failed and refused to cooperate with the plaintiff and breached the provisions of the insurance contract.
On January 18, 2007 the matter was tried before a jury and the jury returned a plaintiff's verdict of two thousand three hundred and ten dollars ($2,310.00) in economic damages and zero ($0.00) in noneconomic damages. The court notes that this number is equal to the total of the amount of the medical expenses claimed by the plaintiff in Plaintiff's Exhibit 2.
On January 26, 2007, pursuant to the provisions of § 52-216a C.G.S. the plaintiff filed a motion for additur. She asserts that the motion should be granted for reason that the issue of damages was a contested issue of fact and that at trial the plaintiff's medical expert offered that she had sustained a permanent partial impairment of 1% of the cervical spine. She further argues that she submitted evidence to the jury that she had incurred medical expenses of $2,060.00 and lost wages of $1,620.66, and that said lost wages were caused because of missed work due to medical treatment.
The plaintiff asserts that: "Because the jury awarded the plaintiff the full amount of economic damages for the medical expenses claimed, the jury necessarily must have found that all of the lost wages also proximately were caused by the subject accident so that its failure to award the full amount of economic damages for past lost wages is inadequate." The plaintiff further asserts that: "The jury award of zero non-economic damages for a plaintiff who has sustained a 1% permanent impairment of the cervical spine and who has a remaining life expectancy of 33.5 years also is inadequate as a matter of law."
On February 1, 2007, the defendant filed an objection to the motion for additur. The defendant asserts that: "The jury had the discretion to determine the facts of the case and award only part of the special damages and no non-economic damages."
A trial court possesses inherent powers to set aside a jury verdict where in the court's opinion, said verdict is against the law or evidence. O'Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). The Supreme Court has held that when a trial court is confronted with a jury verdict awarding economic damages and no non-economic damages, the trial court must determine on a case-by-case basis whether that verdict is adequate as a matter of law. Wichers v. Hatch, 252 Conn. 174, 188-89, 745 A.2d 789 (2000); Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002); Elliott v. Larson, 81 Conn.App. 468, 476, 840 A.2d 59 (2004). "The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption." (Internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 422, 885 A.2d 1232, (2005).
The court will address the plaintiff's arguments in the order that they were presented. Her first argument is that: "Because the jury awarded the plaintiff the full amount of economic damages for the medical expenses claimed, the jury necessarily must have found that all of the lost wages also proximately were caused by the subject accident so that its failure to award the full amount of economic damages for past lost wages is inadequate."
The verdict form that was returned by the jury indicates that they awarded the plaintiff two thousand three hundred and ten dollars ($2,310.00) in economic damages and zero ($0.00) in noneconomic damages. This is the exact amount of the total of the medical billings found in Plaintiff's Exhibit 2. However, although the plaintiff asserts in her motion that the jury award her all of her "economic damages for the medical expenses claimed," she conceded at oral argument that in light of the fact that there were no jury interrogatories, this court would be speculating as to what portion of the verdict the jury may have attributed to medical expenses and what portion, if any was attributable to loss wages. Whereas this Court would have to speculate on the issue of whether the jury intended all of the economic damages to go towards compensation for the medical bills or instead intended some to go towards the medical bills and some towards the loss wage claim, it concludes that the Plaintiff has failed to meet her burden of proof regarding this issue and the requested relief is denied as to said issue.
The plaintiff's remaining argument, is that: "The jury award of zero non-economic damages for a plaintiff who has sustained a 1% permanent impairment of the cervical spine and who has a remaining life expectancy of 33.5 years also is inadequate as a matter of law."
"[T]he jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, 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. . ." "The evidential underpinnings of the verdict itself must be examined. . . [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will." (Citations omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 188-89, 745 A.2d 789 (2000) (en banc).
Evidence was presented to the jury that the plaintiff had sustained an injury in an automobile accident prior to the accident that is the subject of this lawsuit. Furthermore, evidence was also introduced that the plaintiff had sustained a permanent partial disability as the result of said accident and previous injuries were symptomatic prior to the subject accident. Furthermore said injuries involved the same body parts that are the subject of this action.
It is helpful to survey some of the many cases that have dealt with the issue presented by the defendants' claim. In cases in which it was appropriate to set aside the verdict and to order an additur, the jury reasonably could not have declined to award noneconomic damages. See, e.g., Schroeder v. Triangulum Associates, 259 Conn. 325, 332-34, 789 A.2d 459 (2002) (jury inconsistently found defendant liable for plaintiff's surgery expenses but not liable for pain attendant to that surgery and clearly did not credit evidence of plaintiff's unrelated injuries); Fileccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 488-89, 886 A.2d 461 (2005) (jury necessarily found plaintiff had experienced pain, and there was no evidence plaintiff had preexisting condition), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Snell v. Beamon, supra, 82 Conn.App. 146-47 (jury's failure to award noneconomic damages palpably against evidence); Elliot v. Larson, 81 Conn.App. 468, 477, 840 A.2d 59 (2004) (jury necessarily found plaintiff suffered pain and could not work.) In cases in which it was not appropriate to set aside the verdict and to order an additur, the jury reasonably could have chosen not to award noneconomic damages. See, e.g., Medes v. Geico Corp., 97 Conn.App. 630, 638-39, 905 A.2d 1249 (conflicting evidence as to extent of injuries and their effect on plaintiffs' daily lives), cert. denied, 280 Conn. 940, 912 A.2d 476 (2006); Smith v. Lefebre, 92 Conn.App. 417, 423-27, 885 A.2d 1232 (2005) (conflicting evidence as to nature and extent of injuries); Turner v. Pascarelli, 88 Conn.App. 720, 728-31, 871 A.2d 1044 (2005) (conflicting evidence as to severity and duration of pain and extent to which plaintiff recovered from prior injuries); Schettino v. Labarba, 82 Conn.App. 445, 449-50, 844 A.2d 923 (2004) (conflicting evidence as to cause of injuries).
Lombardi v. Cobb, 99 Conn.App. 705, 708 (2007).
The plaintiff testified that after the first accident, she underwent physical therapy and although she found the therapy to be helpful she would still rate her level of pain or discomfort after that accident as a number four on a scale of zero to ten. She further testified that after the accident that is the subject of this lawsuit her pain increased to a six out of ten. She also testified that physical therapy did not help her this time.
. . . [I]n several cases where jury awards of substantial economic damages with no or little accompanying noneconomic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some preexisting condition. See, e.g., Wichers v. Hatch, supra, 252 Conn. 177; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004); Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). In those cases, it was held that the jury reasonably could have concluded that the prior condition was the cause of the pain alleged, rather than the tortious actions of the defendant. See Wichers v. Hatch, supra, 189-90; Turner v. Pascarelli, supra, 730; Schettino v. Labarba, supra, 449-50; Daigle v. Metropolitan Property Casualty Ins. Co., supra, 479; Compare Elliott v. Larson, 81 Conn.App. 468, 840 A.2d 59 (2004) (court properly granted additur when jury awarded plaintiff economic damages of all medical expenses and lost wages claimed but no noneconomic damages, and no evidence presented that preexisting condition caused plaintiff's pain).
Although the plaintiff testified that her pain was exacerbated by the accident that is the subject of this action, however based on the evidence presented at trial the jury may have chosen to believe that the plaintiff did not meet her burden of proof to show that the defendant's negligence was the proximate cause of her pain or an increase in the amount thereof.
The motion for additur is denied and the objection thereto is sustained.