Opinion
UWYCV146024727S
08-23-2016
Richard Stanco v. Liberty Mutual Fire Insurance Co
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION FOR COLLATERAL SOURCE REDUCTION (# 145) AND JUDGMENT
Robert Nastri, Jr., Judge.
This underinsured motorist action, brought by writ of summons and complaint dated July 22, 2014, with a return date of August 19, 2014. On April 1, 2016, after two days of trial, the jury returned a verdict in favor of the plaintiff in the amount of $30,000. (# 142.) The court accepted the verdict on the same date.
The plaintiff adduced evidence at trial that he had incurred $28,147.10 in past medical expenses as a result of the automobile collision underlying his claims. The jury awarded him only $14,073.49 in past medical expenses. For each of the seventy-nine claimed medical expenses the jury awarded approximately one-half of the claimed amount. April 1, 2016 Jury Interrogatories Regarding Medical Bills. (# 141.)
The jury also awarded the plaintiff $8,820 in future medical expenses, $5,694 in past non-economic damages, and $1,412.51 in future non-economic damages for a total award of $30,000.
When the claimed medical expense was an odd number, the jury alternated rounding up and down. For instance, of the ten medical bills in the amount of $147.03 generated by Neurosurgery, Orthopaedics and Spine Specialists, PC between February 6, 2014 and February 18, 2016, the jury awarded $73.51 for five of them and $73.52 for five of them.
Following the verdict, the defendant moved to have the jury's award reduced for collateral source payments pursuant to General Statutes § 52-225a(a). That statute provides, in relevant part, that in the instant circumstances " the court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid, contributed or forfeited under subsection (c) of this section . . ." Section 52-225a(c) provides " The court shall receive evidence . . . concerning any amount which has been paid, contributed or forfeited . . . to secure [the plaintiff's] right to any collateral source benefit . . ." " Thus, under § 52-225a(a), calculation of the collateral source reduction is a two-part process: (1) the total amount of collateral source benefits a claimant has received is determined in accordance with § 52-225a(b); and (2) that amount is then decreased, pursuant to § 52-225a(c), by the total amount that has been paid, contributed, or forfeited . . . by, or on behalf of, the claimant or members of his immediate family to secure those benefits." (Internal quotation marks omitted.) Alvarado v. Black, 248 Conn. 409, 413, 728 A.2d 500 (1999).
In common parlance--and in the simplest terms--the verdict is reduced by the amount an insurer paid toward the plaintiff's medical bills but the plaintiff receives a credit for the premiums he paid to buy that insurance. The court is required to determine the economic damages, deduct any collateral source payments, and give the plaintiff credit for premium payments. The defendant must prove the amount of the collateral source payments; the plaintiff has the burden to prove the amount of the premium payments. Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 9, 848 A.2d 373 (2004). This statutory scheme was enacted to prevent a plaintiff from recovering twice, once as a result of a payment made on his behalf and then again from the jury's award of economic damages. Jones v. Kramer, 267 Conn. 336, 346, 838 A.2d 170 (2004).
The parties agree that Medicare paid $4,459.86 for medical expenses on the plaintiff's behalf. They also agree that the plaintiff's health care providers made contractual reductions--or write-offs--in the amount of $20,989.03. The defendant argues the court should set off the award of economic damages by $12,724.45, which represents half of the $25,448.89 paid by Medicare and contractually reduced by the plaintiff's health care providers. Although the plaintiff agrees the award should be reduced by half the amount paid by Medicare, he relies on Hernandez v. Marquez, Superior Court, judicial district of Fairfield, Docket No. CV-00-0377482 S (January 5, 2004, Levin, J.) [36 Conn.L.Rptr. 351, ], to argue that the health care providers' contractual reductions are not payments.
After Hernandez was decided, another Superior Court concluded that " the forgiveness of a debt is as much a payment as a transfer of money." Hassett v. City of New Haven, 49 Conn.Supp. 7, 10, 858 A.2d 922 (2004) , aff'd, 91 Conn.App. 245, 247, 880 A.2d 975 (2005). In Hassett, the court found the write-offs in question were not collateral sources because they were voluntary on the part of the medical providers. They were not " by or pursuant to: (1) [a]ny . . . insurance . . . or (2) any contract or agreement within the meaning of § 52-225b." (Internal quotation marks omitted) Hassett v. New Haven, supra, 49 Conn.Supp. 10. The Appellate Court adopted the trial court's decision in Hassett as a " proper statement of the issues and the applicable law concerning" write-offs as collateral sources. Hassett v. New Haven, 91 Conn.App. 245, 247, 880 A.2d 975 (2005).
Eligibility as a Medicare provider under federal law requires a health care entity to enter into an agreement with the Secretary of Health and Human Services to write off any charge in excess of the amount Medicare pays for particular medical items or services. 42 U.S.C. 1395cc(a)(1)(A)(i). In the present case, the plaintiff's medical providers were required by operation of law and contract to write off any amount over and above the amount covered by Medicare. Consequently, the write offs were involuntary. Unlike the write-offs in Hassett, the write-offs here were " by or pursuant to: (1) [a]ny . . . insurance . . . or (2) any contract or agreement" within the meaning of § 52-225b.
The plaintiff argues he should receive a credit for the premiums he paid to obtain the collateral sources. The defendant does not disagree and the plain language of § 52-225a(a) supports the plaintiff's position. The plaintiff also seeks credit for two other amounts: $1,166.83, which he asserts he paid toward his medical bills as " co-pays" and two separate liens he owes to Medicare totaling $5,849.43. Those liens are described in the plaintiff's memorandum as " $3,544.42 paid in the underlying settlement with the tortfeasor's insurance carrier and $2,305.01 owed to Medicare currently." May 18, 2016 Objection to Amended Motion for Collateral Source Reduction at 2.
The court hesitantly uses the phrase " plain language" with respect to General Statute § 52-225a. Not since Edward Bulwer-Lytton was writing in the eighteenth century has the English language been so tortured.
Co-pays do not fall within the definition of a collateral source nor are they an amount " which has been paid, contributed or forfeited . . . to secure . . . any collateral source benefit . . ." General Statute § 52-225a(c). When a jury awards compensation for some or all of a medical expense, included within that award is compensation for some or all of the plaintiff's co-pays. The plaintiff would be the beneficiary of a double recovery if he were to keep the jury's award and also receive a credit or a reduction in collateral sources for the same amount at the same time.
The Medicare liens do not fall within the ambit of § 52-225a either. Section 52-225a provides " there shall be no reduction for (A) a collateral source for which a right of subrogation exists . . ." Such a lien is neither a collateral source nor a premium paid to obtain a collateral source: See Brennan v. Burger King Corp, 46 Conn.App. 76, 84, 698 A.2d 364 (1997).
The court makes the following findings:
The plaintiff received $25,000 from the allegedly underinsured tortfeasor before commencing this action.
The plaintiff sought compensation for $28,147.10 in medical costs he incurred as a result of the underlying motor vehicle collision.
In its verdict, the jury awarded the plaintiff economic damages of $14,073.49 for past medical costs.
The plaintiff had collateral sources of $12,724.45 as a result of payments made to his medical providers on his behalf or involuntarily written off by his medical providers that, when deducted from the $14,073.49, leaves an award of $1,349.04.
The plaintiff is entitled to a credit of $5038.20 for the cost of procuring the collateral sources.
The economic award to the plaintiff after deduction of the collateral sources and the addition of the credit is $6387.24.
The net non-economic award taken together with the other portions of the jury's verdict brings the total jury verdict to $22,313.75, slightly below the $25,000 the plaintiff recovered from the tortfeasor.
The court enters judgment for the defendant.