Opinion
HHDCV146052317S
01-02-2020
Richard Vichas v. Timothy Heckman et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Budzik, Matthew J., J.
MEMORANDUM OF DECISION RE POSTJUDGMENT MOTIONS
Budzik, J.
Before the court are several postjudgment motions. Pursuant to General Statutes § 52-216a, defendant T&T Landscaping, LLC (T&T) moves to open the judgment and for remittitur (Doc. No. 374.00) because after the verdict, but before the court’s September 18, 2019 decision upholding the verdict and entering judgment in favor of plaintiff Richard Vichas, Mr. Vichas reached a confidential settlement with defendant Timothy Heckman. T&T argues that the jury’s damages award is excessive as a matter of law when combined with the settlement monies provided by Mr. Heckman. Mr. Vichas objects to T&T’s motion. For his part, Mr. Vichas moves for discovery sanctions (Doc. No. 380) because T&T failed to disclose that its insurer had disclaimed coverage in this case until after trial was completed. Mr. Vichas also moves for an order of compliance (Doc. No. 378.00) compelling T&T to sit for a deposition for the purpose of discovering assets sufficient to satisfy the judgment. Finally, Mr. Vichas moves for an award of pretrial interest (Doc. No. 371.00) in accordance with his offer of compromise. T&T objects to each of Mr. Vichas’ motions.
On September 18, 2019, the court issued a memorandum of decision (Doc. No. 367.00) upholding the jury’s verdict and entering judgment in favor of plaintiff Richard Vichas in the amount of $1, 843, 335.13.
The settlement amount was $500, 000.00.
For the reasons set forth below, the court denies T&T’s motion to open the judgment and for remittitur. For the reasons set forth below, the court grants Mr. Vichas’ motion for sanctions and for an order of compliance. Pursuant to General Statutes § 52-192a and the plaintiff’s offer of compromise, the court awards Mr. Vichas interest in the amount of $516, 133.83 up to September 18, 2019 (the date of the court’s memorandum of decision re post-trial motions), and a per diem rate of $409.63 for each day thereafter.
LEGAL ANALYSIS
On September 18, 2019, the court issued a memorandum of decision on the parties’ post-trial motions setting forth the facts that could have been reasonably found by the jury from the evidence presented at trial. The court presumes familiarity with the facts as recited in its September 18th memorandum and so does not repeat them here.
a. Motion to Open the Judgment and for Remittitur
Generally, § 52-216a provides a trial court with the discretion to reduce a jury award against one joint tortfeasor by the amount of any pretrial settlement paid to the plaintiff by another joint tortfeasor, if the combined settlement amount and jury award would be excessive as a matter of law. See Mahon v. B.V. Unitron Manufacturing, Inc., 284 Conn. 645, 668 (2007), citing Peck v. Jacquemin, 195 Conn. 53, 71 (1985) (stating that "this court construed ... § 52-216a ... to permit a payment by one joint tortfeasor resulting from a settlement before trial to reduce a jury verdict against another joint tortfeasor only where the verdict otherwise would be excessive as a matter of law"). This is particularly the case where the amount of damages is fixed and certain, as in a claim for property loss. See Alfano v. Insurance Center of Torrington, 203 Conn. 607, 611 (1987); see also Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 589 (1993). Nevertheless, our Supreme Court has made clear that trial courts should be cautious in applying the Alfano analysis in personal injury cases. "Because of the nature of personal injuries and the pain and suffering ancillary to the injuries, the amount awarded by a jury is not absolute." Mahon v. B.V. Unitron Manufacturing, Inc., supra, 284 Conn. 669, n.13, quoting Mauro v. Yale-New Haven Hospital, supra 31 Conn.App. 589. Such is the case here.
As set forth in the court’s September 18th memorandum, Mr. Vichas seeks recovery for personal injuries to his health and life as a result of T&T’s intentional exposure of Mr. Vichas to high levels of poisonous lead. The harms done to Mr. Vichas are not the type of "fixed," "certain," "undisputed," or "absolute" harms dealt with in Alfano. Instead, in exercising its discretion under § 52-216a, the court, in this case, must determine only whether the combined jury award and settlement amount falls within "a spectrum of possible sums that could have been awarded as damages," Mahon, 284 Conn. 669, n. 13, or "is plainly excessive or exorbitant," Johnson v. Pike, 136 Conn.App. 224, 231 (2012). The court concludes that a combined recovery of $2, 343, 335.13 (1, 843, 335.13 + $500, 000.00) is well within the spectrum of reasonable damage awards that Mr. Vichas may properly receive as compensation for his injuries and is in no way excessive as a matter of law. As set forth more fully in the court’s September 18th memorandum, Mr. Vichas has sustained permanent damage to his physical health and cognitive functions, and will likely have a shortened life expectancy. The negative health effects resulting from T&T’s intentional exposure of Mr. Vichas to high levels of lead are grievous, incurable, and likely to worsen over time. Set against such a dreadful factual backdrop, an award of approximately $2.35 million in noneconomic damages is wholly within the broad spectrum of reasonable damages Mr. Vichas may be permitted to recover without becoming excessive as matter of law or providing Mr. Vichas with an improper windfall.
Finally, the court addresses T&T’s argument that failing to reduce the verdict by the settlement amount would contravene the court’s statements to the jury to the effect that even though T&T and Mr. Heckman are jointly and severably liable for the entirety of any damage award, Mr. Vichas would not be able to recover the entirety of any damage award from both defendants. In other words, in response to a question from the jury during deliberations, the court informed the jury that joint liability on the part of the defendants did not mean that Mr. Vichas could recover twice the amount of any jury award.
The court is unpersuaded by T&T’s argument. Mr. Vichas is not receiving a double recovery under the verdict. Mr. Vichas is simply recovering additional monies outside the court process. As stated by the court in Mahon when addressing a similar argument, "[the defendant] ... has failed to provide any support for the premise underlying its claim, namely, that the jury award represents a constitutional limitation on the total payments that a plaintiff may receive in compensation for his or her injuries. When a jury trial results in a verdict against a defendant, the verdict does place a constitutional cap on the amount that a defendant may be required to pay to the plaintiff. Contrary to [the defendant’s] assertion, however, a defendant’s right to a jury trial does not include the right to bar the plaintiff from receiving the benefit of any pretrial settlement amounts that the plaintiff has negotiated with other alleged tortfeasors. In other words, whether a jury verdict should be reduced in light of any pretrial settlement payments is an issue ultimately to be resolved by the legislature as a matter of public policy; it is not an issue that implicates any fundamental rights of the defendant. Thus, [the defendant] is entitled to the protection afforded it under § 52-216a and no more." Mahon, 284 Conn. at 672. This court can think of no reason why the Mahon court’s analysis should be inapplicable here simply because this case involved a post-trial settlement rather than a pretrial settlement. The fundamental principle remains the same: the amount of a jury award does not prevent a plaintiff from recovering additional monies through settlement as compensation for the same injuries, so long as the combined amounts are not excessive as a matter of law or provide the plaintiff with an improper windfall. Such is not the case here.
b. Discovery Motions
Mr. Vichas seeks sanctions for T&T’s failure to inform him that T&T’s insurer was defending this case under a reservations of rights due to Mr. Vichas’ allegations of intentional tort. Mr. Vichas argues that he has been prejudiced by T&T’s failure to disclose because Mr. Vichas had been litigating this case under the mistaken impression that any verdict in his favor could be satisfied by insurance. T&T’s counsel admits that T&T’s May 19, 2016 responses to Mr. Vichas’ August 11, 2014 interrogatories and requests for production were not accurate because T&T’s responses failed to state that T&T had received a reservation of rights letter from its insurer dated August 6, 2014. This mistake has now been compounded by the fact that the jury found in favor of Mr. Vichas on his intentional tort claim and therefore T&T’s insurer has disclaimed coverage for T&T’s intentional acts. Nevertheless, T&T argues that because it is common knowledge that insurance does not cover intentional acts, plaintiff’s counsel ought to have known that T&T’s insurer would disclaim coverage. Regardless, T&T argues, even had Mr. Vichas known earlier in the case that T&T would lack insurance coverage for any verdict in Mr. Vichas’ favor, plaintiff’s counsel could not have litigated this case any differently.
The court notes that this argument is a double edged sword for T&T in that, based on the same rationale, T&T ought to have known that its discovery responses were false.
The court disagrees. First, it is beyond dispute that a party is obligated to respond to discovery accurately and that an opposing party is entitled to rely on those responses. Mr. Vichas is not required to second guess coverage decisions, or engage in an analysis of legal or litigation strategies made by his opponent’s insurer. Appropriate discovery was served; a party is entitled to rely on the (sworn) responses received. Second, the court disagrees with the notion that had Mr. Vichas known earlier in this case that there was no insurance coverage, there is nothing more that he could have done. That is not true. Mr. Vichas might well have attempted to avail himself of his rights under General Statutes § 52-278a et seq., Connecticut’s prejudgment remedies statute. Mr. Vichas might well have attempted to do exactly what he is doing now: exercise his discovery rights in an attempt to discover sufficient assets to satisfy any judgment. Additionally, Mr. Vichas might well have sought some order from the court, or a stipulated agreement among the parties to preserve T&T’s assets. Thus, the court finds, Mr. Vichas was prejudiced by T&T’s failure to respond to discovery accurately.
On the basis of the foregoing, the court rules as follows. The court grants Mr. Vichas’ motion for sanctions because T&T admittedly failed to accurately respond to discovery and Mr. Vichas has been prejudiced thereby. Mr. Vichas may file an appropriate fee affidavit to recover the legal fees associated with preparing and arguing the motion for sanctions. For the same reasons, the court also grants Mr. Vichas’ motion for an order of compliance. Pursuant to Practice Book § 13-14 and General Statutes § 52-351b(c), the court, in the interests of justice, hereby orders an appropriate representative of T&T to sit for a deposition within 30 days of the date of this memorandum of decision and/or that T&T answer such additional discovery as may be propounded by the plaintiff as necessary to identify assets of T&T sufficient to satisfy the judgment in this case. Such additional discovery may include requests for financial records sufficient to show the flow of all monies and assets into and out of T&T from May 19, 2016 (the date of T&T’s inaccurate discovery responses and the date on which Mr. Vichas would have otherwise been able to take action to attempt to preserve the assets of T&T) to the present. The court sustains T&T’s objection to any postjudgment discovery sought from David Thibodeau. Mr. Thibodeau is not a judgment debtor in this case. Pursuant to General Statutes § 52-351b(c), the court provides notice that failure to comply with this order may subject T&T to contempt of court.
c. Interest
At oral argument on the instant motions, plaintiff’s counsel agreed to the interest calculations submitted by the defendant. Therefore, pursuant to General Statutes § 52-192a and the plaintiff’s offer of compromise, the court awards Mr. Vichas interest in the amount of $516, 133.83 up to September 18, 2019 and a per diem rate of $409.63 for each day thereafter.