Opinion
HHDCV156060616S
05-08-2017
Jeffrey A. Dimarco v. Liberty Mutual Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON POST-VERDICT MOTIONS
Robert B. Shapiro, Judge.
On January 27, 2017, after trial in this underinsured motorist action, the jury rendered a verdict in favor of the plaintiff, Jeffrey A. Dimarco, and against the defendant, Liberty Mutual Insurance Company. The defendant filed a post-verdict motion for remitttur and reduction (#141), and the plaintiff filed a motion for additur and/or new trial (#144), to which the defendant filed an objection (#145).
The court held a hearing concerning these motions on March 9, 2017. At that time, the parties stipulated that the plaintiff had no objection to the motion for remittitur, in that he agreed that the jury's verdict of $20, 000.00 should be reduced by the amount paid to by the tortfeasor, also $20, 000.00. As to the motion for additur and new trial, the parties rested on their papers.
The defendant contends that, if the motion for additur is denied, the resulting verdict would be zero and a defendant's verdict should be entered. The plaintiff contends that, if the verdict is reduced to zero, the plaintiff still prevailed and a defendant's verdict should not be entered.
After consideration, the court issues this memorandum of decision.
Background
The evidence presented at trial involved contested issues as to damages.
The jury rendered a verdict for the plaintiff as follows: past economic damages, $6, 375.50; future economic damages, $6, 375.50; non-economic damages, $7, 249.00, for a total award of $20, 000.00. References to the evidence are set forth below.
II
Standard of Review
" The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence ... [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] 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 ..." (Internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).
Similarly, " [a] motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 98, 956 A.2d 1145 (2008).
" [T]he award of damages, in particular, is a matter peculiarly within the province of the trier of facts." (Internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011).
" [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 their will." (Internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). " Wichers holds that 'a case-specific standard should apply to the instance in which a party seeks to have a verdict set aside on the basis that it is legally inadequate.' Wichers v. Hatch, supra, 252 Conn. 181 ... We read Wichers as an instruction to a trial court specifically to identify the facts of record that justify the extraordinary relief of additur ..." (Footnotes omitted.) Turner v. Pascarelli, 88 Conn.App. 720, 723-24, 871 A.2d 1044 (2005).
The Supreme Court also has established " the parameters of a trial court's discretion in ruling on a motion for additur. [It has] considered whether: (1) the jury award shocks the [sense of justice]; ... (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages; ... and (3) the verdict is inherently ambiguous." (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, supra, 235 Conn. 114-15. " [T]he 'shocks the sense of justice' standard provides vague guidance at best due, in part, to the uncertain limits of noneconomic damages. The language is intended to convey the extraordinary departure from reasonableness that is required before a court properly may exercise its authority to set aside the jury's award of damages." Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 282-83.
See General Statutes § 52-216a, which provides, in relevant part: " If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial."
In Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 279 n.6, the Supreme Court stated that the phrases " shocks the conscience, " employed in Childs v. Bainer, 235 Conn. 107, 114-15, 663 A.2d 398 (1995), and the more commonly used " shocks the sense of justice, " " hav[e] the same meaning ..."
The court's 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." (Footnote omitted.) Wichers v. Hatch, supra, 252 Conn. 188-89.
Several appellate court decisions provide guidance. For example, in Wichers v. Hatch, supra, the court upheld a verdict of zero noneconomic damages where the evidence before the jury reasonably could have led it to find that, after the accident, the plaintiff saw his chiropractor more frequently than usual, " but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his preexisting condition. Certainly, the jury reasonably could have found that the accident had not aggravated the plaintiff's condition, and that his pain was the same as what he had experienced before his accident with the defendant." Id., 252 Conn. 189-90. In Santa Maria v. Klevecz, 70 Conn.App. 10, 800 A.2d 1186 (2002), the Appellate Court found " that it was reasonable for the jury to conclude that the plaintiff's alleged pain and suffering was, at a minimum, exaggerated." Id., 15. Among the factors leading to this assessment was that " [t]he jury also heard testimony that the plaintiff previously had injured herself in a slip and fall. It was reasonable therefore for the jury to conclude that the fall or other stressors were at least partially responsible for the plaintiff's alleged pain and suffering." (Footnote omitted.) Id., 16.
Subsequently, in Smith v. Lefebre, 92 Conn.App. 417, 427, 885 A.2d 1232 (2005), where the Appellate Court directed that the jury's verdict be reinstated, the court stated that " on the basis of the evidence adduced during the trial, the jury could have concluded that the plaintiff embellished or exaggerated both the nature and the extent of her injuries ... [I]n light of the conflicting evidence with respect to the issue of damages, it was the jury's task to determine the credibility of the evidence ... In light of the evidence, it was reasonable for the jury to award zero noneconomic damages ... Moreover, the presence of such conflicting evidence curtailed the court's authority to replace the jury's damage award with its own." (Citations omitted.) Id., 426.
" Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury." (Internal quotation marks omitted.) Hunte v. Arnica Mutual Insurance Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). " The right to a jury trial is fundamental in our judicial system, and ... the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion ... passed upon by the jury and not by the court." (Internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 188.
" The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 783, 882 A.2d 653 (2005).
III
Discussion
The plaintiff requests the court to set aside the verdict and issue an order of additur, adding damages to the amount awarded by the jury. The plaintiff argues that the award of economic damages and noneconomic damages is contrary to the manifest weight of the evidence produced at trial.
In response, the defendant argues that the verdict is not against the law or the evidence, and contends that the jury made a credibility assessment as to the plaintiff's testimony and made their decisions accordingly.
After review of the evidence, the court concludes that the jury reasonably could have found that the plaintiff did not prove substantial injuries resulting from the August 2013 accident. See Childs v. Bainer, supra, 235 Conn. 107-18. The jury reasonably could have found that the plaintiff did not immediately seek medical attention after the rear-end collision. He sought treatment from a chiropractor, after which he acknowledged that his condition improved, for headaches and neck pain, which radiates to his right shoulder. He testified that he still has symptoms, and eventually had an MRI and was seen by an orthopedist, who prescribed a cortisone injection, which provided temporary relief. The plaintiff claimed a permanent injury. The chiropractor provided an opinion stating that the plaintiff had suffered a permanent, partial impairment. See plaintiff's Exhibit 4.
The plaintiff also testified that he had a subsequent motor vehicle accident where his vehicle was hit from behind. The plaintiff claimed that he injured his mid back and right shoulder blade in this accident.
The plaintiff also testified that he is able to exercise, but that his ability to lift weights has been limited. He acknowledged that he is able to go skiing and to play golf.
" The jury had the right to accept whatever portion of the evidence it chose and consider it in its calculations." (Internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 450, 815 A.2d 119 (2003). " [T]he jury is under no obligation to credit the evidence proffered by any witnesses, including experts ... even if that evidence is uncontroverted." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 690, 748 A.2d 834 (2000). As the weighers of the plaintiff's credibility, one of the jury's functions was to assess the veracity of the plaintiff's complaints. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972).
The jury reasonably could have assessed the plaintiff's credibility and concluded that it was not convinced by the plaintiff's claims of injury and pain and suffering caused by the accident. For example, the jury reasonably could have concluded that the plaintiff was exaggerating his claims. The jury also reasonably could have discounted his claims due to the gap in time between the initial accident and the time when the plaintiff sought treatment. The jury also may reasonably have found that the plaintiff did not suffer serious injury in the accident.
The jury was not required to believe the testimony of the plaintiff or to credit the opinions of his physicians. See Sigular v. Gilson, 141 Conn.App. 581, 594, 62 A.3d 564, cert. granted, 308 Conn. 948, 67 A.3d 291 (2013), appeal withdrawn, August 1, 2013.
As stated in Smith v. Lefebre, supra, 92 Conn.App. 422, where the Appellate Court directed that the jury's verdict be reinstated, " there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged ... Put another way, [i]t is the jury's right to accept some, none or all of the evidence presented." (Citations omitted; internal quotation marks omitted.) " [T]he jury was not compelled to accept the plaintiff's claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court ... Under the facts and circumstances of the present case, the evidence was sufficient to allow room for reasonable differences of opinion among fair-minded people and, therefore, even though the trial court may have reached a different conclusion, the jury's verdict must stand." (Citation omitted; internal quotation marks omitted.) Id., 426-27.
The jury also reasonably could have concluded that, since the plaintiff was, subsequent to the accident, able to continue to his normal activities, his claims of continuing pain were not credible. Here, the jury reasonably could have found that the plaintiff was exaggerating and embellishing his claimed damages.
In summary, the evidence provided a basis for the jury reasonably to conclude that the plaintiff did not experience significant pain and suffering as a result of the accident.
Under the facts of this case, the jury's award falls within the " necessarily uncertain limits of just damages ..." (Internal quotation marks omitted.) Margolin v. Kleban & Samor, P.C., supra, 275 Conn. 783. Accordingly, the jury award does not shock the conscience. The jury did not award inadequate damages. The jury's verdict is not inherently ambiguous. See Childs v. Bainer, supra, 235 Conn. 114-15.
Accordingly, in view of the agreement that the tortfeasor paid the plaintiff $20, 000.00, the verdict must be reduced to zero. Under these circumstances, where the jury's verdict did not exceed $20, 000.00, the court is required to " reduce the damages award to zero and to render judgment in favor of the defendant." Fileccia v. Nationwide Property and Casualty Insurance Co., 92 Conn.App. 481, 496, 886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006).
CONCLUSION
For the reasons stated above, the plaintiff's motion for additur and/or a new trial is denied and the defendant's motion for remitttur and reduction is granted. Judgment may enter for the defendant in accordance with the jury's verdict.
It is so ordered.