Opinion
No. X07 CV 05 4025130S
September 24, 2007
MEMORANDUM OF DECISION
The plaintiff, TA Operating Corporation (TA), doing business as TravelCenters of America, filed the instant suit seeking damages against the defendants, Kenan Advantage Group, Inc. (Kenan), a Delaware fuel trucking corporation, and C. White Son, Inc. (White), a Connecticut fuel trucking company. TA alleges that the defendants spilled several thousands of gallons of diesel fuel while making a delivery to the plaintiff's facility in Willington on or around February 19, 2003. The matter was returned to court on July 12, 2005. On December 22, 2006, TA filed with the court, by facsimile, offers of compromise pursuant to General Statutes § 52-192a seeking to resolve the matter with Kenan for $475,000 and with White for $390,000. The offers were signed by TA's counsel and contained certifications that the offers were sent by first class mail to the defendants' attorneys on the same day. Both attorneys deny, however, receiving the offers; indeed, they both insist that they did not learn of the offers until being so advised at a February 7, 2007 status conference. The defendants now seek to strike the offers of compromise arguing that TA failed to comply with the notice requirement of § 52-192a. In the alternative, the defendants seek to have the offers deemed filed as of the date of notice, i.e., as of the status conference on February 7, 2007.
Section 52-192a, in relevant part, provides: "(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain. The plaintiff shall give notice of the offer of compromise to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself. Within thirty days after being notified of the filing of the offer of compromise and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise . . . If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled . . . (c) After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight percent annual interest on said amount. The interest shall be computed from the date the complaint in the civil action was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the offer of compromise was filed . . ." It is noted that § 52-192a was amended by Public Acts 07-141, § 16 in June of 2007. The amendment essentially provides for the application of the statute to counterclaim plaintiffs. Thus, the amendment is irrelevant in the present case. Additionally, the statute as amended is not applicable here as the offers of compromise were filed before the amendment of the statute. See Public Acts 07-141, § 16 ("[e]ffective from passage and applicable to application filed on or after said date").
In Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997), our Supreme Court reviewed the purpose of the interest provisions of § 52-192a in the context of a complex breach of contract claim. It noted that "[i]n construing § 52-192a, we first note that its purpose is to encourage pretrial settlements and, consequently, to conserve judicial resources . . . [T]he strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement . . . In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." (Citations omitted; internal quotation marks omitted.) Id., 742.
The court further added, "[t]he imposition of interest as a result of finding that the plaintiff was entitled to an award of damages in excess of the offer of judgment is mandatory. Our courts have consistently held that prejudgment interest is to be awarded by the trial court when a valid offer of judgment is filed by the plaintiff, the offer is rejected by the defendant, and the plaintiff ultimately recovers an amount greater than the offer of judgment after trial . . . Moreover, an award of interest under § 52-192a is mandatory, and the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts . . . The statute is admittedly punitive in nature . . . It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases." (Emphasis omitted; internal quotation marks omitted.) Id., 752.
The crux of the defendants' motions to strike is whether TA has met the requirements of § 52-192a; if TA has, and if it obtains judgment in excess of its offers, it will be entitled to the additional interest. Section 52-192a(a) mandates that "[t]he plaintiff shall give notice of the offer of compromise to the defendant's attorney . . ." See also Practice Book § 17-14. At the hearing on these motions on September 17, 2007, the plaintiff conceded that neither of the defendants' attorneys, as noted in their affidavits in support of their motions, received copies of the offers. Moreover, notwithstanding the certifications of service attached to the offers, TA did not submit an affidavit from anyone stating that copies of the offers were in fact mailed to the defendants' counsel. Ann G. Levy, the office manager for TA's attorney, testified in her affidavit that it is "the customary practice" in her office to send copies so certified; that "[o]n December 22, 2006, [she] was working in the office with a temporary employee. That employee worked part-time at our office between December 11, 2006 and December 29, 2006 . . . It is [her] recollection that the Offers of Judgment were prepared by and filed by the temporary employee"; and, finally, that "[t]o the best of my knowledge, our normal practice of mailing these types of documents was followed on December 22, 2006."
TA argues that the offers were, in light of that customary practice, sent to the defendants' counsel. It does not maintain that counsel, in fact, received notice. Indeed, as mentioned above, it concedes that they did not receive the offers.
Nevertheless, TA argues that under Practice Book § 10-13 when service or notice is permitted to be given by mail, service is complete upon mailing and actual notice is not required. Section 10-13, in relevant part, provides, "Service upon the attorney or upon a pro se party . . . may be . . . by mailing it to the last known address of the attorney or party . . . Service by mail is complete upon mailing . . ." In this context, service is defined as "the act of bringing a legal writ, process, or summons to notice actually or constructively as prescribed by law." Webster's Third New International Dictionary. Nevertheless, "service of process must furnish reasonable notice to the defendant of the proceedings to afford him the opportunity to appear and be heard." Chemical Specialty Sales Corp. — Industrial Division v. Basic, Inc., 296 F.Sup. 1106, 1107 (D.Conn. 1968); see also Webster Bank v. Zak, 71 Conn.App. 550, 561, 802 A.2d 916 ("[t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner" [internal quotation marks omitted]), cert. denied, 261 Conn. 938-39, 808 A.2d 1135 (2002). "The word `notice' may be defined as that which imparts information to the one to be notified." LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953); Greene v. Ives, 25 Conn.Sup. 356, 360, 204 A.2d 412 (1964).
TA cites to Bittle v. Commissioner of Social Services, 249 Conn. 503, 506-15, 734 A.2d 551 (1999) as support for this argument. There was, however, no issue of actual notice in Bittle as the defendants were clearly served; the issue was whether the service on the 48th day as opposed to the 45th day complied with the statute. Id. Therefore, Bittle is not controlling.
In the present case, while the defendants may have been served if the offers were deposited in the mail, they did not receive the offers and, through no fault of their own, were, therefore, not informed of them. As they had no notice, TA has not met the requirements of § 52-192a. Levy's affidavit stating that, to the best of her knowledge, the customary practice was followed does not remedy this defect even though, if the offers were mailed, this type of service would comply with Practice Book § 10-13.
Furthermore, this situation is like those cases in which abode service, presumptively valid, may be successfully challenged. "The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Emphasis added; internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 771, 789 A.2d 528 (2002), citing Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996). Sufficient evidence, including the affidavits of the defendants' attorneys and TA's concession, requires this court to conclude that defense counsel never received notice as required by § 52-192a.
TA argues, however, that because it sent notice — whether or not it was received — this court should construct a new time period for the defendants to consider the offer of compromise and then follow all other aspects of the statute. The court rejects this proposal. First and foremost, it cannot and will not rewrite the statute and the practice book. See Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006) ("It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." [Internal quotation marks omitted.]).
Second, the legislature in § 52-192a(a) stated that "[t]he plaintiff shall give notice of the offer of compromise to the defendant's attorney." (Emphasis added). "Our Supreme Court previously has recognized the significance of the [drafter's] choice in electing to choose `shall' or `may' in formulating a . . . directive. Absent an indication to the contrary, the [drafter's] choice of the mandatory term `shall' rather than the permissive term `may' indicates that the . . . directive is mandatory." (Citation omitted; internal quotation marks omitted.) Vargas v. Doe, 96 Conn.App. 399, 412, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). Thus, the notice requirement of the statute is mandated by the legislature.
Finally, as discussed at the hearing, in a situation where notice was never sent, which, despite the plaintiff's argument, would appear to be the actual case here, it is inconceivable that this plaintiff, or any litigant, would argue that the plaintiff would be entitled to the interest penalty as long as it simply filed the offer within the eighteen-month period. The statutory quid pro quo for the interest penalty is that the defendant has the opportunity to conclude the litigation at a relatively early date and save costs and expenses; this would not be possible without notice. Hence, TA's proposal would surely undercut this incentive and more than likely lead to unwarranted results. The legislature did not grant any litigant such a tactical or strategic advantage.
This court concludes that in order to benefit from the interest provisions of § 52-192a, along with filing the offer of compromise within eighteen months of filing the complaint, the plaintiff must give notice to the defendants. As this was not done in this case, the defendants' motions to strike are granted.