Opinion
No. CV07-5003333
June 30, 2009
MEMORANDUM OF DECISION
In this underinsured motorist claim, the defendant moves for summary judgment on the basis that the plaintiff is collaterally estopped from bringing a claim against it for underinsured motorist benefits. The plaintiff, who sustained injuries as the result of a motor vehicle collision, filed suit against the tortfeasors. The plaintiff and the tortfeasors agreed to submit the case to private arbitration. In his decision, the arbitrator addressed the issues of liability and damages. The arbitrator determined that the plaintiff was 50 percent at fault for the accident. The arbitrator then awarded the plaintiff past and future economic damages including medical expenses for a total of $425,000 in damages which was then reduced to $238,000. The plaintiff issued a release in the amount of the policy limits of $100,000 to the defendant. The plaintiff then filed the instant claim for undersinsured benefits against her insurance carrier. The defendant now seeks summary judgment on the basis that the plaintiff had the opportunity to and did litigate issues pertaining to liability and damages during the arbitration, and therefore is precluded as a matter of law from relitigating liability and damages pursuant to the doctrine of collateral estoppel.
In its argument opposing summary judgment, the plaintiff contends that collateral estoppel does not apply to the instant case because the issues of liability and damages were decided by way of arbitration and because the arbitration award was not affirmed by the Superior Court. As a result, there was no judgment rendered on the merits for the purposes of collateral estoppel. The plaintiff also contends that because she incurred additional medical treatment and expenses after the arbitration, she did not have a full and fair opportunity to litigate her claim. Further, the plaintiff argues that because an action for uninsured motorist benefits sounds in contract and her claim against the tortfeasor sounded in negligence, the present action is not the same action for the purposes of collateral estoppel. The plaintiff also submits that it is against public policy to allow the defendant to apply collateral estoppel to the present case because it allows the insurer the benefit of retrying cases whenever it so chooses without allowing the plaintiff the same opportunity. Finally, the plaintiff argues that issues of fact remain as to the amount of the arbitrator's award because the defendant failed to attach a certified arbitration award and there are factual disputes as to the amount of collateral source credits and setoffs.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Emphasis in original; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). "In order for collateral estoppel to apply . . . there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 38, 694 A.2d 1246 (1997).
"Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party." (Emphasis added; internal quotation marks omitted.) Willard v. Travelers Ins. Co., 247 Conn. 331, 336, 721 A.2d 894 (1998). When collateral estoppel is asserted against a prior party to the action, privity is not required. See Young v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 107, 118-19, 759 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000). In Young, the Appellate Court concluded that where an insurer sought to use collateral estoppel against its insured after the plaintiff had received a judgment as to the tortfeasor's negligence, the doctrine of privity was not invoked. The court concluded that an underinsured motorist carrier could use "the doctrine of collateral estoppel defensively to prevent [an insured who was a party to the first action] from getting a second opportunity to litigate the same issue." (Emphasis in original.) Id., 118. The court reasoned that "[t]he doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." (Emphasis in original; internal quotation marks omitted.) Id.; see also Tierney v. Renaud Morin Siding, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5014179 (October 29, 2008, Gilardi, J.) (46 Conn. L. Rptr. 599, 601) ("Further, the plaintiffs in the first action are the same in the present matter . . . Thus, there is no issue of privity because the parties against whom res judicata is to be asserted are the same in both actions . . .). In the instant case, privity is not required because the plaintiff was a party to the action.
As to the plaintiff's first argument that there was no final judgment on the merits because the case was resolved by arbitration, our Supreme Court has held that "as a rule, the decision of an arbitration panel is binding as res judicata in a subsequent judicial proceeding." Haynes v. Yale New Haven Hospital, 243 Conn. 17, 21 n. 5, 699 A.2d 964 (1997). This rule applies "especially in a case in which the decisions [of an arbitration panel] are made for a purpose similar to those of a court and in proceedings similar to judicial proceedings." Fink v. Golenbock, 238 Conn. 183, 195, 680 A.2d 1243 (1996). "[A]n arbitration proceeding should [also] be given the effect of a judgment for the purposes of . . . collateral estoppel." Busconi v. Dighello, 39 Conn.App. 753, 768, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996). As our Appellate Court has explained, "the doctrine of collateral estoppel bars [relitigating the issues] to the extent that they were already litigated in the arbitration proceedings." Id., 769. This is true even where the arbitrator's decision has not been affirmed by the trial court. One Superior Court has held that an arbitration decision is considered a final judgment for purpose of collateral estoppel, regardless of whether the award is confirmed. See Tierney v. Renaud Morin Siding, Inc., supra, 46 Conn. L. Rptr. 602. In this instant action, the decision of the arbitrator was a valid, final judgment for the purpose of res judicata regardless of whether the court affirmed the arbitration award. The plaintiff had a full and fair judgment on the merits regardless of the fact that the first action was resolved by way of arbitration. Accordingly, the plaintiff's first argument is without merit.
The plaintiff's second argument, that she did not have an opportunity to fully litigate her claim because she incurred additional treatment after the arbitration, is equally unpersuasive. The Superior Court addressed a similar argument in Bertanza v. Fidelity Guaranty Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 05 5005745 (July 16, 2007, Radcliffe, J.) (43 Conn. L. Rptr. 747). In that underinsured motorist claim, the plaintiff claimed that after a verdict was rendered against the tortfeasor in the underlying claim, she learned that she might need surgery as a result of her injuries from the accident. She then brought the action for damages pertaining to that treatment against her underinsured motorist carrier and contended that she did not have the opportunity to fully litigate her damages in light of the potential future medical treatment. Her insurer argued that because she had recovered damages from the tortfeasor, collateral estoppel applied as to her claim for damages. The court concluded that collateral estoppel did apply, because although the jury did not award her future damages, she pleaded and put on evidence of future damages and thus the jury most likely considered her future damages in awarding damages. Id. In so holding, the court reasoned that "[u]nderinsured motorist coverage is designed to place the injured party, the insured, in the same position she would have been had the tortfeasor . . . been insured in an amount sufficient to satisfy any judgment rendered . . . Since [the plaintiff] cannot seek additional compensation from [the tortfeasor], and cannot relitigate the issue of damages against [the tortfeasor] in light of the jury verdict, she cannot relitigate the identical issue simply because a claim is made against another defendant." Id., 749.
In the present case, the plaintiff fully and fairly litigated her damages during the arbitration proceeding against the tortfeasor. A review of the arbitrator's decision reveals that arbitrator, in awarding damages, examined the medical records and not only awarded the current medical expenses but future medical expenses as well. Additionally, a review of the plaintiff's complaint filed against the tortfeasor in the previous case also reveals that the plaintiff requested relief for future medical expenses. Thus, similar to the plaintiff in Bertanza, the plaintiff has pleaded and put on evidence of future damages which the arbitrator clearly considered in his award. As in Bertanza, the plaintiff in seeking underinsured motorist coverage is only entitled to the damages she would have received from the tortfeasor. Accordingly, the plaintiff has fully and fairly litigated her future medical expenses and her new post-arbitration treatments do not bar the defendant from using the doctrine of collateral estoppel against the plaintiff.
The plaintiff's third and fourth arguments are equally unavailing. In arguing that the plaintiff's first action against the tortfeasor and the present action are not the same action, the plaintiff misconstrues the doctrine of collateral estoppel. All that is required, "[i]n order for collateral estoppel to apply . . . [is] an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, supra, 241 Conn. 38. Nothing in the doctrine of collateral estoppel requires that the issues to be precluded stem from the same type of action. The arbitrator decided the issues of damages and liability in full. The defendant may seek to invoke collateral estoppel regardless of the nature of the previous action.
With regard to the plaintiff's public policy argument, she overlooks the basic purpose and requirements of the doctrine of collateral estoppel to efficiently resolve an issue that a party had previously had the opportunity to fully litigate. "[T]he `crowning consideration' in collateral estoppel cases and the basic requirement of privity [is] that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable." (Emphasis added.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 818, 695 A.2d 1010 (1997). The party against whom issue preclusion is sought, here the plaintiff, has had a full and fair opportunity to sufficiently represent her interests during the arbitration proceeding. It is axiomatic that the defendant insurer be allowed to retry cases when it so chooses because it was not a party nor in privity to the action. See id., 818. In allowing the defendant to apply collateral estoppel, the defendant does not receive any unfair benefit. Thus, the mere fact that the defendant gets to choose when to apply collateral estoppel will not bar its application to the present case.
Finally, the plaintiff's fifth argument, that there remain issues of material fact as to the amount of the damages awarded because the defendant did not attach a certified arbitration award, and because there are issues pertaining to collateral source credits and setoffs that are still in dispute, is unpersuasive. The defendant attached a signed copy of the arbitration decision, upon which the plaintiff relies at several points in her argument. Further, the plaintiff cites no case law describing the certification requirements pertaining to arbitration decisions. The issues of collateral sources, set-offs and credits were raised by way of special defenses. Factual issues as to collateral source credits and setoffs will not operate as a bar to collateral estoppel relating to issues of liability and damages as it is a post-verdict issue decided in a hearing apart from the fact finder's determinations as to liability and damages. See Practice Book §§ 10-78 and 10-79; Bertanza v. Fidelity Guaranty Ins. Co., supra, 43 Conn. L. Rptr. 737 (allowing an underinsured carrier to use collateral estoppel against plaintiff after jury verdict in favor of plaintiff despite lack of collateral source hearing). Therefore, there are no remaining factual issues to be decided by the arbitration in the underlying case.
For the foregoing reasons, the defendant's motion for summary judgment is granted.