Opinion
CV136039686S
11-04-2016
Dwight Daley v. J.B. Hunt Transport, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE POST-VERDICT MOTIONS
William B. Rush, Judge
The plaintiff instituted the present action to recover monetary damages from his employer and its manager sustained as a result of the termination of his employment. The jury, in the answers to interrogatories, found that the termination of employment was not the result of discrimination because of race, color or any physical disability of the plaintiff. The jury, however, did return a verdict in favor of the plaintiff in the amount of $225,000 comprised of economic damages of $200,000 and non-economic damages of $25,000 on the basis of the theory of promissory estoppel, negligence, fraudulent misrepresentation, and the breach of the covenant of good faith and fair dealing.
Both parties have filed various motions to effect the result of the determinations made by the jury and rulings thereon are hereinafter set forth. However the first issue to be determined involves the integrity of the verdict itself. The verdict and the answers to interrogatories were accepted and ordered accepted by the Court shortly after 5:00 p.m. on Friday August 11, 2016. The following Tuesday, the undersigned was asked to come to the civil case flow office where one of the jurors (hereinafter referred to as " juror X") appeared for continued deliberations. The Court informed juror X that the verdict had been rendered by the jury and also informed juror X of the amount of the verdict. At this point, juror X appeared to become visibly upset and stated that she had no recollection of the end of deliberations or the rendering of the verdict. The Court then immediately arranged for conference with the attorneys for the plaintiff and the attorneys for the defendants, at which conference, the Court advised the attorneys of the events that transpired in the case flow office. At the conference, the Court also provided the attorneys with a copy of a letter (post-verdict Court exhibit A) written by juror X after the meeting in the case flow office which states, in part: " I came in today to finish deliberation and found to my surprise, that a verdict had been reached. I do not remember end of deliberations/verdict from yesterday. I don't have a history of memory gaps that I am aware of, but this definitely occurred at that time" and that she is " also concerned with the possibility of other gaps during the trial." The letter also states that she disagrees with the verdict and that she will be getting an evaluation for dementia/Alzheimer soon which has been recommended by a care giver because her mother had early onset of Alzheimer starting at 60 years old.
Based upon the foregoing facts the defendants have requested an evidentiary hearing to which the defendant has filed an objection. Juror X was subject to the usual voir dire questioning and was found acceptable to all parties. No issues were raised as to the competence of juror X during the lengthy evidentiary portion of trial nor during the jury deliberations and rendition and acceptance of the verdict. Juror X also signed in as being present on the morning the verdict was rendered. When the verdict was rendered, in the usual fashion, the roll call was taken and the verdict and the answers to interrogatories was read by the clerk to the jurors who were then asked if that was their verdict (so say you all) and all jurors, including juror X, responded in the affirmative. The Court then ordered the verdict to be accepted and recorded. The clerk then read the verdict and the answers to interrogatories to the jury for a second time and posed the same question to the members of the jury and, again, all six jurors, including juror X, responded in the affirmative. No issues as to the competence of juror X were raised during the rendition and acceptance of the verdict. There was no request to poll the jurors individually and, accordingly, no individual poll was taken.
Practice Book Sec. 16-34 provides as follows:
IMPEACHMENT OF VERDICT
Upon inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror, nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.
The procedure to be employed upon a claim of misconduct is well established. See generally Sawicki v. New Britain General Hospital, 302 Conn. 514, 29 A.3d 453 (2011). A specific claim of juror misconduct would generally require some inquiry by the trial court. Harrison v. Hamzi, 77 Conn.App. 510, 823 A.2d 446 (2003), cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). However, the failure to remember that deliberations took place resulting in the rendition of verdict is not misconduct by a juror or jurors. " [T]he final assent of the jurors given after the verdict has been read aloud by the clerk, accepted and ordered recorded by the Court, and read aloud a second time by the clerk makes the verdict final . . . Ample opportunity is thus afforded, and designedly so, for the Court, counsel, and the jurors to comprehend the verdict and to cure any misunderstanding before the final assent." Josephson v. Meyers, 180 Conn. 302, 309, 429 A.2d 877 (1980) quoting from Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106 (1959). Evidence may be received " for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself as that a juror was improperly approached by a party, his agent or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner." Aillon v. State, 168 Conn. 541, 551, 363 A.2d 49 (1975). Examples of testimony that cannot be considered include " any matter which does essentially inhere in the verdict itself as that the juror did not assent to the verdict, that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors or other matters resting alone in the juror's breast." Josephson v. Meyers, supra, 180 Conn. at 310-11.
What we do know is that as a result of the voir dire process all attorneys had the opportunity to question juror X and found her to be acceptable to all parties; no issue of the competency of juror X was raised during the evidentiary portion of the trial; no issues of competency were raised during the rendition and acceptance of the verdict which included not only the reading of the verdict itself but also included, on two occasions, the reading of ten interrogatories and the answers thereto by the jury as well as returning the jury to respond to the issue of the apportion of damages. The instructions to the jury by the Court also instructed the jury that each juror must decide the case for themselves and not merely acquiesce in the verdict of their fellow jurors. The fact that, after the lengthy deliberations and the process rendering and acceptance of the verdict, a juror does not remember those events does not mean that they did not take place in accordance with our laws. The notes of the Court indicate the instructions to the jury were completed at 11:03 a.m. and that the verdict was accepted shortly after 5:00 p.m. so that it is not a short period of time that juror X cannot recall. However the failure to recall those events is itself a post-verdict event. The holding of a hearing on issue of the competence of Juror X during the course of the trial, the deliberations of the jury and the rendition and acceptance of the verdict would require, for a thorough analysis, an inquiry into areas which, under the law, the Court cannot do. If the juror cannot recall the deliberations and the rendition of the verdict it is doubtful that Juror X could reliably recall the state of her competency during the trial itself and any further inquiry would involve the Court directly in the process of the deliberations.
Accordingly, the request of the defendants to hold a hearing and the Motion to Set Aside the Verdict on the issues raised by juror X is hereby denied.
The defendants also assert that the Court grant their Motion for a Directed Verdict and that the Court set aside the verdict on the grounds that the evidence is insufficient to support a verdict in favor of the plaintiff. The plaintiff was an at will employee and therefor could be terminated by the employer, with certain limitations, at any time. However, the employment plaintiff was terminated because he did not keep the corporate defendant advised of his intention to return to work and knew that his failure to do so would make him subject to termination. The defendant had a published policy that if an employee was out of work for approximately six weeks the employee had a duty to keep the company advised of the employee's intention and ability to return to work. The plaintiff was involved in an automobile accident while driving a private car and immediately had a relative bring a copy of the police report to the company manager to demonstrate that the accident was not his fault and that he had been hospitalized. Prior to the expiration of the six-week period, the plaintiff gave the individual defendant a letter from his treating chiropractor stating that the plaintiff was released to return to work and the plaintiff stated that he was prepared to return to work. The plaintiff was then told that the letter was insufficient and that he needed to have a letter from his orthopedic surgeon. The plaintiff then contacted the office of the orthopedic surgeon and returned to tell the defendant manager that the doctor was away and could not see the plaintiff until February 8th which would be after the expiration of the six-week period. The manager told the plaintiff that there was no problem and just bring in the letter after the plaintiff kept the appointment with the orthopedic surgeon. On February 8th the plaintiff kept the appointment with the surgeon and provided the manager with a proper letter releasing the plaintiff for return to full-time work. The plaintiff was then told that his employment had been terminated approximately a week earlier. The fact that the plaintiff had been in an accident, had been injured, that he desired to return to work upon release from the medical providers, that the treating chiropractor had authorized his return to work and the delay in his ability to see the orthopedic surgeon was never placed in the company's computer system. The termination actually took place at the home office of the corporate defendant in Arkansas because the computer system showed no activity relating to the plaintiff's desire and ability to return to work. The jury was also entitled to find that extension of the six-week period was a common practice and would have been readily been extended if the pertinent information had been placed in the computer system.
The jury was also entitled to find that the plaintiff was a good employee and did not mind being assigned deliveries in New York City which many drivers did not like because of the congestion. The corporate defendant had recently assumed the delivery aspects for the Bushwick Steel Company and some trucks did not yet have proper license plates for all vehicles. The plaintiff was assigned a truck with a cardboard license plate with handwritten numbers written on it and was stopped in New York State for driving a vehicle with improper plates. However the incident says more about the defendants than it does about the plaintiff. After the termination, the corporate defendant advertised its need for drivers at Bushwick Steel. The plaintiff applied, was interviewed but was not offered a job in the Connecticut area. Therefore, forgetting about the legal niceties of terminating an at will employee, the jury had sufficient evidence to conclude that the defendant did not treat the plaintiff fairly and to be inclined in his favor if the law would permit compensation.
The defendants claim the evidence was insufficient to sustain a verdict for the plaintiff on any of the grounds identified by the jury in the answers to interrogatories, to wit: promissory estoppel, negligence, fraudulent misrepresentation, and breach of the covenant of good faith and fair dealing as to the cancellation of his medical insurance. A determination of the sufficiency as to any one of the grounds is probably sufficient to sustain the verdict.
The defendants claim, correctly, that under the doctrine of promissory estoppel " a promise which the promissor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement only of the promise." D'Ulisse-Cupo v. Bd. of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). The jury found in the answer to interrogatory 4 that the manager of the defendant " made a clear and definite promise to the plaintiff that he could bring in a letter from Dr. Katz after August 8, 2011 and that there would be no problem if the plaintiff did so." Given the circumstances under which the statement was made by the manager, including plaintiff's desire to return to work immediately, the jury was entitled to find that statement constituted a clear and definite promise in light of the probability of a short extension by the home office had they had access to the relevant facts. In short, the plaintiff did what his boss said he could do. The plaintiff did forbear to his detriment and therefore lost his job and the injustice can be avoided only by the enforcement of the promise. Even if action were required of the plaintiff, there is no need to create a focus group to list all the actions the plaintiff could have taken if he were aware that his job depended upon it.
The evidence was also sufficient to permit the jury to return a verdict in favor of the plaintiff on the remaining claims, i.e., negligence, breach of the covenant of good faith and fair dealing and even fraudulent misrepresentation although that claim is more problematical. The manager did, as found by the jury, find that the manager did make the statements attributed to him when he knew, or should have known, that: the plaintiff had been injured in an automobile accident in a private vehicle; the plaintiff wanted to return to work as soon as possible; that the plaintiff had produced a letter from a medical provider stating that he could do so; that there would be a short delay, not attributable to the plaintiff, in obtaining a letter from the orthopedic surgeon (which was eventually obtained); that there was nothing in the computer records relating to any of these events; that the home office would only know that they hadn't heard from the plaintiff in six weeks and would probably therefore terminate his employment and medical benefits because they wanted to know who was an employee and who was not. The jury could also find that the actions of the manager were performed with actual knowledge of all these facts and were therefore intentional.
Therefore, all requests and post-verdict motions filed by the defendants are denied.
The plaintiff has also filed various motions requesting the Court to award prejudgment interest, post-judgment interest, punitive damages, as well as a Motion to amend the complaint. All post-verdict motions filed by the plaintiff are denied.
The plaintiff asks the Court to exercise its discretion and award prejudgment and post-judgment interest pursuant to General Statutes sec 37-3a and 37-3b. The jury was informed, in the Court's instructions, that should they return a verdict in favor of the plaintiff they should award fair, just and reasonable compensation for the losses sustained by the plaintiff. In addition, the claims of the plaintiff did not involve a liquidated sum of money wrongfully detained by corporate defendant. No sums were due and payable until at least until the verdict was rendered by the jury. See Sys. Pros v. Kasica, 166 Conn.App. 732, 771-72, 145 A.3d 241 (2016); Ceci Bros, Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 428, 840 A.2d 578 (2004), cert. denied, 268 Conn. 922, 846 A.2d 881 (2004). The jury was asked to compensate the plaintiff, if appropriate, for the losses sustained by the plaintiff and they did so.
The plaintiff has also filed a post-verdict motion to amend the complaint " to conform to the proof." The defendants object to the filing of the proposed amended complaint asserting that it adds new claims such as ancestry, violation of important public policy, redesign of hiring procedures and the application of the covenant of good faith to claims other than termination of medical benefits. It is true that the Court has discretion to allow post-verdict motions to amend the pleadings to conform to the proof considering such factors as the length of the delay and the fairness to the opposing party. Fiallo v. Allstate Insurance Co., 138 Conn.App. 325, 331-32, 51 A.3d 1193 (2012). See also Leone v. Knighton, 196 Conn. 494, 493 A.2d 887 (1985); Kelley, Admr. v. New Haven Steamboat Co., 75 Conn. 42, 52 A. 261 (1902); McAlister v. Clark, 33 Conn. 253 (1866). The proposed amendment by the plaintiff does more than amend the pleadings to conform to the proof as to issues of which the defendants were aware or should have been aware. The proposed amendment, if allowed, would deprive the defendants of the opportunity to meet additional factual and legal issues not succinctly raised in the operative complaint upon which the case was submitted to the jury. The Motion to Amend the Complaint is therefore denied.
The plaintiff has also filed a Motion for an award of punitive damages based upon the affirmative answer by the jury to interrogatory 9 which established that the statements by the manager that there would be no problem if the plaintiff brought in a note from the orthopedic surgeon after the visit of Feb. 8th were false at the time and known to be so. The plaintiff asserts that such an answer supports a verdict for fraudulent misrepresentation thereby entitling him to an award of punitive damages. False misrepresentation can be established where: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so when made; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. McCann Rent Equities XXVII, LLC. v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 518, 890 A.2d 140 (1906) cert. den. 277 Conn. 928, 895 A.2d 798 (2006).
" Punitive damages are awarded when the evidence shows a reckless indifference to the rights of another or an intentional and wanton violation of those rights." (Punitive damages) " are not awarded as a matter of right, but rather as a matter of discretion to be determined by the court upon a consideration of all the evidence." " Recklessness is a state of consciousness with references of one's acts . . . It is more than negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be more than a failure to exercise reasonable degree of watchfulness to avoid damages to others or to take reasonable precautions to avoid injury to others. Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety or the consequences of the action." Avery v. Medina, 151 Conn.App. 433, 449-50, 94 A.3d 1241 (2014). " In order to award punitive or exemplary damages evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Wagner v. Our Lady of Mount Caritas OSB, Inc., 157 Conn.App. 788, 799, 118 A.3d 103 (1995); Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). No interrogatory was requested or submitted to the jury with respect to the entitlement of the plaintiff to punitive damages and, accordingly, there was no determination of the jury on that issue.
In the present situation, the basis for fraudulent misrepresentation is based upon a single statement in a single meeting. The manager should have known that the absence of relevant information in the computer system meant that a problem did exist and would be relied upon by the home office. The manager knew that a problem did exist and that his statement of " no problem" was untrue. However there is no evidence that the manager acted with an evil intent or motive nor is there any evidence of repeated actions regarding the representations which the jury found that, in one instance, he did make the statements attributed to him by the plaintiff. In short, the evidence does not merit an award of punitive damages.
For the reasons stated, all requests and post-verdict motions filed by the defendants as well all post-verdict motions filed by the plaintiff are denied.