Opinion
CV146045827S
08-12-2016
Ernest DiPalma et al. v. Neal A. Rapoza et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR NEW TRIAL AND/OR ADDITUR (#159)
Robin L. Wilson, J.
This personal injury action was tried to a jury on May 24-27, 2016. This matter is before the court concerning the plaintiffs, Ernest and Laura DePalma's motion for new trial and/or additur (#159), to which the defendants, Neal A. Rapoza, Anthony Rapoza and Unitrin Preferred Insurance Company filed objections (#161, #160). The plaintiffs filed their motion for a new trial and/or additur and memorandum in support thereof on June 6, 2016. The objections to the motion were filed on June 30, 2016, by Unitrin Preferred Insurance Company, and on July 7, 2016, by Neal and Anthony Rapoza, along with memoranda of law in support of the objections. The matter was initially marked as take papers on the court's non-arguable calendar. The court scheduled oral argument on the matter which was heard on July 11, 2016, at short calendar. After consideration of the parties' briefs and arguments, and review of the evidential underpinnings of the verdict, the court issues this memorandum of decision.
I
BACKGROUND
On March 8, 2014, the plaintiffs, Ernest and Laura DiPalma commenced this negligence action by service of writ, summons and complaint against the defendants, Neal A. Rapoza, Anthony Rapoza and Unitrin Preferred Insurance Company (Unitrin). The return date is April 15, 2014, and the complaint was returned to court on March 21, 2014. The complaint dated March 4, 2014, which is the operative complaint is in six counts and alleges the following. On June 24, 2012, the plaintiff, Ernest DiPalma was operating his motor vehicle traveling westbound on the Boston Post Road in Guilford, Connecticut approaching the intersection with State Street, at which point the plaintiff's vehicle came to a complete stop due to traffic stopped in front of it. The plaintiff, Laura DiPalma was a passenger in the vehicle driven by Ernest DiPalma. On said date, the defendant, Neal Rapoza was operating a 1997 Toyota Celica with the consent of the owner, defendant Anthony Rapoza, and was also traveling westbound on the Boston Post Road in Guilford, Connecticut, approaching the intersection with State Street. The vehicle being operated by the defendant Neal Rapoza, suddenly and without warning struck the rear portion of the plaintiffs' vehicle. The plaintiffs allege that the collision was due to the negligence and carelessness of the defendant, Neal Rapoza, and that as a result they sustained injuries and losses. Counts one and two are as to Ernest and Laura DiPalma, respectively, and are against Neal Rapoza, operator of the vehicle; counts three and four are as to Ernest and Laura DiPalma, respectively, and are against Anthony Rapoza, owner of the vehicle; counts five and six are as to Ernest and Laura DiPalma, respectively and are against Unitrin, for underinsured motorist benefits.
All defendants filed answers to the complaints and on July 11, 2014, the plaintiff, Laura DiPalma withdrew her claims against defendants, Neal and Anthony Rapoza. The remaining counts one and three, are as to Ernest DiPalma against Neal and Anthony Rapoza and counts five and six are as to Ernest and Laura DiPalma against Unitrin.
On May 27, 2016, the jury returned verdicts in favor of the plaintiffs as follows. As to Ernest DiPalma the jury awarded economic damages in the amount of $2, 585 and non-economic damages in the amount of $7, 500 for a total award of $10, 085. The jury awarded the plaintiff Ernest DiPalma the full amount of medical bills claimed. As to the plaintiff, Laura DiPalma, the jury awarded economic damages in the amount of $37, 249.76, and non-economic damages in the amount of $27, 500, for a total award of $64, 749.76. The jury did not award the full amount of medical bills claimed by the plaintiff, Laura DiPalma, but rather awarded all of the plaintiff, Laura DiPalma's medical bills through September 8, 2015.
Pursuant to Practice Book § 16-35 and General Statutes § 52-228b the plaintiff filed a motion for a new trial and/or additur. During oral argument on the motion, counsel for the plaintiff indicated that she was not moving for a new trial, but rather to set aside the verdict as to damages only and for an additur. The court will therefore treat the plaintiffs' motion as a motion to set aside as to damages only and for an additur. As grounds for their motion, the plaintiffs claim that the jury's award of damages is unreasonable and unsupported by the evidence submitted.
Practice Book § 16-35 provides in relevant part that " . . . [M]otions to set aside a verdict, motions for additur, [and] motions for new trials must be filed with the clerk within ten days after the day the verdict is accepted, provided that for good cause the judicial authority may extend this time . . ."
Section 52-228b provides, " 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 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."
The defendants in their objections argue that the jury's award of damages is supported by the evidence and that the jury could have reached the verdicts it did based upon the evidence submitted.
II
DISCUSSION
" 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 . . ." (Citations omitted; internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).
The standards for a motion to set aside the verdict and a motion for additur are identical. Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). " A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). " The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only under the most compelling evidence 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. The amount of damages to be awarded is a matter particularly within the province of the jury." (Citations omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., supra, 541-42.
" In 2000 the Supreme Court decided Wichers v. Hatch, supra, 252 Conn. 174, which expressly overruled the per se rule of Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), in favor of a case-by-case determination of whether the verdict was adequate. Although Wichers involved a situation where the jury had awarded economic damages and no non-economic damages, the basic holding is applicable to the present situation as well. The trial court should examine the evidence to determine whether the jury reasonably could have found that the plaintiff had failed in his or her proof on a given issue. The decision should be made, not on the assumption that the jury made a mistake, but rather, on the supposition the jury did exactly what it intended to do. Wichers, supra at 188-89. In deciding a motion to set aside a verdict, the court must therefore put itself in the position of the jury and determine whether the verdict was unfair, unreasonable and in contradiction of the evidence. The court must determine if the jury's findings were so manifestly unjust that it shocks the conscience." Vestergaard v. Klein, Superior Court, judicial district of Middlesex, Docket No. CV01 0095341S, (December 22, 2003, Silbert, J.).
The Supreme Court 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 conscience; . . . (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, 235 Conn. 107, 114-15, 663 A.2d 398 (1995).
In the present case, as to Ernest DiPalma, the jury awarded all of the medical bills claimed in the amount of $2, 585, and non-economic damages in the amount of $7, 500. As to Laura DiPalma, the jury awarded $37, 249.76 of the claimed $48, 304.44 medical bills and $27, 500 in non-economic damages.
As noted by Judge Bellis in Lamkhantar v. Travisano, Superior Court, judicial district of New Haven, Docket No., CV03 480835S, (January 14, 2009, Bellis, J.), " [s]ince Wichers, the courts have occasionally been called upon to address the propriety of an additur where there has been some award of non-economic damages along with the economic damages award. Arguably, this is perhaps the least troublesome area, where the jury has evaluated the plaintiff's claim of pain and suffering and made some monetary award for it, rather than rejecting or ignoring the claim for non-economic damages outright. While there are only a handful of post- Wichers decisions in this area, it appears that motions for additur have been denied where the plaintiff was medically non-compliant, there was evidence of a pre-existing injury, the jury rejected one of the claimed injuries or some of the claimed treatment, there was a gap in treatment and/or the treating physician did not have a complete medical history, and have been granted where the treatment was for pain, there was no evidence of prior injury and/or the jury made an award for future economic damages with no corresponding award for future non-economic damages." Id.
Here, although the jury had evidence that Ernest DiPalma sustained a 13% permanent partial impairment to his cervical spine as a result of the accident, they also had evidence that Mr. DiPalma sustained a prior cervical injury which resulted in a permanent impairment. In addition, there was evidence upon which the jury could rely, which demonstrated that Mr. DiPalma had no medical treatment since 2013, and no permanent restrictions on his activity level. It is clear that the jury did not wholly reject Dr. Marino's assessment of permanent impairment attributable to the subject car accident, however, it is equally clear, that they took into account evidence of the plaintiff's prior cervical injury, and resulting permanent impairment Based upon this evidence, the jury concluded an award of non-economic damages in the amount of $7, 500 was fair, just and reasonable. Accordingly, because it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion, this court cannot conclude that the jury's award of $7, 500 non-economic damages was inadequate, shocks the conscience or ambiguous. Clearly there was evidence upon which the jury could conclude as it did. The court will therefore let the jury work its will. The motion to set aside and for additur as to Ernest DiPalma is denied.
With respect to the plaintiff, Laura DiPalma, the jury did not award all of the claimed medical bills and awarded $27, 500 in non-economic damages. The plaintiff claimed, and there was evidence submitted that, as a result of the accident she sustained an 8% permanent impairment to the lumbar spine. There was also evidence submitted at trial, that the plaintiff had significant pre-existing degenerative arthritis in the lumbar spine, particularly in the facet joints. In addition, Mrs. DiPalma suffered from pre-existing psoriatic arthritis and osteoarthritis. There was also evidence submitted that Mrs. DiPalma's treatment as of September 8, 2015, focused exclusively on the localized arthritic pain in the degenerative facet joints. Interrogatories listing all of the medical bills claimed by Laura DiPalma were submitted to the jury. The jury did not award medical bills claimed after September 8, 2015. It is therefore clear that the jury believed that treatment after September 8, 2015, was not related to the subject car accident, but related to the pre-existing condition. There was also evidence submitted that the plaintiff's ongoing lumbar pain was intermittent and that she had prior symptoms of lumbar pain which were similar to the symptoms she had after the subject car accident. In addition, there was evidence presented that the plaintiff's level of activity had not been significantly impacted by the subject car accident. The jury clearly concluded that the plaintiff sustained a low back injury as a result of the accident and awarded fair, just and reasonable economic and non-economic damages it found to be causally related to the accident, based upon the evidence it had before it. The court cannot conclude that the award shocks the conscience, is wholly inadequate or ambiguous. Accordingly, the motion to set aside as to damages only and for an additur as to Laura DiPalma is denied.
III
CONCLUSION
For the foregoing reasons, the plaintiffs' motion to set aside as to damages only and for an additur is denied.