Robinson v. Hartford Ins.

Full title: MATTIE ROBINSON v. HARTFORD INSURANCE COMPANY OF THE MIDWEST

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Sep 23, 2005

2005 Ct. Sup. 13144 (Conn. Super. Ct. 2005)

Opinion

No. CV-03-4013543 S

September 23, 2005

MEMORANDUM OF DECISION

JOHN C. FLANAGAN, JUDGE TRIAL REFEREE.

The plaintiff was involved in an automobile accident on January 4, 2002. The operator of the adverse vehicle was one Jose Ardon. The limit of coverage on said vehicle was $20,000.00 which was paid to the plaintiff who alleged that fair, just and reasonable compensation for her injuries and losses exceeded said sum.

The plaintiff thereafter instituted suit against her own insurer, the defendant herein, under the provision of the policy affording underinsured motorist coverage.

The defendant admitted that coverage was in order, that the plaintiff was an insured under the policy and that the tortfeasor was legally liable for the accident. Thus the case proceeded to trial as a "hearing in damages." The jury concluded that fair, just and reasonable compensation consisted of $5,097.65 in economic damage and $5,000 in non-economic damage.

Because the funding with respect to fair, just and reasonable was less than the $20,000 paid by tortfeasor's insurer the court entered judgment in favor of the defendant by agreement of counsel.

The legislative purpose in enacting uninsured and underinsured legislation was the protection of insureds who were legally entitled to recover damages from owners or operators of uninsured and underinsured vehicles. Section 38a-336 Connecticut General Statutes. Keystone Ins. Co. v. Raffile, 225 Conn. 223, 232.

An underinsured vehicle means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability coverage under the uninsured motorist portion of the policy against which claim is made. § 38a-336(e). Also see § 38a-336a(e) which defines an underinsured motor vehicle as a motor vehicle with respect to which the sum of all payments received by or on behalf of the insured from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the insured.

I. Claim Court Erred in Comments To Voir Dire Panel and Charge to Jury

The instant lawsuit is based on a policy of insurance which is contractual in nature.

Because the action was predicated on a contract the court correctly informed the voir dire panel and the jury when seated of the nature of the contractual provision which provided one insured thereunder with underinsured coverage.

The court explained that said coverage was mandated by statute and that it provided protection to an insured in a situation involving an underinsured motor vehicle.

The court further defined a "underinsured motor vehicle and explained that the obligation of the defendant-insurer was triggered only after the limits of liability coverage available to the tortfeasor had been exhausted by settlement or payment of a judgment. The court also instructed the voir dire panel and jury when seated that in the case at hand the plaintiff alleged that the limit of coverage on the tortfeasor's vehicle was inadequate to fairly, reasonably and justly compensate her for the injuries and monetary losses caused by the negligent operation of a motor vehicle by the tortfeasor. The court emphasized the function of the jury was to make an independent determination of what is fair, just and reasonable compensation for those injuries and losses causally related to the accident and in assessing damages the fact the plaintiff had received some money was not to be considered. (Emphasis added.) (These instructions were repeated several times.)

The complaint offered concerning the court's comments is not that they were inaccurate but rather they should not have been given.

Under the circumstances of this case it was entirely appropriate for the court to instruct the voir dire panel and the jury when seated concerning the nature of the case and the elements required to trigger an obligation on the part of the defendant insurer to make payment.

II Re Application of § 52-219a Connecticut General Statutes

The plaintiff references § 52-219a in support of her claim that the court erred in mentioning that the plaintiff had received limit of coverage from the tortfeasor. As stated above an underinsured claim is triggered by that very fact coupled with the plaintiff's claim that monies received were inadequate to fairly and reasonably compensate her for the injuries and monetary losses sustained in the accident in question. Section 52-219a applies to a situation involving joint tortfeasor and hence is inapplicable herein.

III. Claim That Court Erred in Failing to Specifically Charge Concerning Plaintiff's Entitlement to Compensation for Emotional Distress and/or Mental Anguish

No exception was taken to the court's detailed instruction concerning damages which included entitlement to compensation for pain and suffering as well as the impact of any injury upon the ability to carry on life's activities. The only exception to the charge was that the court did not specifically mention the entitlement to compensation for emotional distress and/or mental anguish.

There was no mention of this condition in Dr. Lundborg's reports or its causal connection to the accident in question.

The plaintiff was never diagnosed for any emotional injury nor was any treatment for any emotional injury tendered.

The plaintiff failed to offer any expert evidence that she in fact suffers from any emotional difficulty or that such a condition was caused by the auto accident. Labieniec v. Baker, 11 Conn.App. 199, 205.

To prevail the plaintiff must prove the nature of the injury sustained and that the defendant's act was a legal cause thereof.

In Labieniec v. Baker, 11 Conn.App. 199, 205, the court directed a verdict for the defendant on the plaintiff's claim of emotional distress because of his failure to prove that the emotional distress was caused by the defendant's alleged wrongful conduct.

As concerns a claim for emotional distress the plaintiff must provide "sufficient evidence" of the emotional distress and that the defendant's wrongful act was "more likely than not the cause of the distress." See also Esposito v. Schiff, 38 Conn.App. 726, 728 (affirming directed verdict for defendants where there was no evidence of causation between defendant's act and alleged injury of distress.)

The plaintiff's evidence did not as a matter of law provide a causal connection between the defendant's act and emotional difficulties alleged to have been caused thereby. Thus the plaintiff was not entitled to a jury instruction on this issue.

IV. Verdict Inadequate

There was evidence from which the jury could have concluded that the plaintiff sustained a fractured collar bone and contusion of the left knee; that she was seen in the emergency room at the Milford Hospital although not admitted, and that she lost 1 day from work.

X-Rays of the knee were completely normal. Dr. Lundborg awarded the plaintiff a 5 percent residual disability of the knee "for discomfort." With respect to the clavicle the reports of Dr. Lundborg indicated that finally there was full range of motion of the right shoulder with no pain or disability. The plaintiff did testify as to ongoing discomfort and compromise in her ability to carry on life's activities. These issues are peculiarly within the province of the jury to assess.

The jury awarded the plaintiff all of her economic damages and $5,000.00 in non economic damage.

A substantial portion of the economic damages consisted of charges for a visit to the Emergency room in the hospital; 1 day lost wages, ambulance, x-rays and MRI Charges for "treatment" were reflected in the bills rendered by Dr. Lundborg and physical therapist.

Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinions among fair minded people as to the amount to be awarded. The amount of a damage award is a matter peculiarly within the providence of the trier of fact in this case, the jury and should not be tampered with by the court unless the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption. Carrol v. Allstate Ins. Co., 262 Conn. 433, 449, 450; Bruneau v. Seabrook, 84 Conn.App. 667, 673.

"Proper compensation for non-economic damages cannot be computed by a mathematical formula and there is no precise rule for the assessment of damages." Bruneau v. Seabrook, supra, 674.

In the ultimate analysis the task before the court is to determine whether the verdict rendered by the jury falls somewhere within the uncertain limits of fair, just and reasonable compensation or so shocks the sense of justice as to compel the conclusion that the jury was improperly motivated. Carrol v. Allstate, supra p. 450.

The court finds no basis for disturbing the verdict. The court finds that the verdict passes muster under the applicable standards and there was no evidence that the jury was improperly motivated.

Motion denied.

The court

John C. Flanagan, J.