Opinion
No. CV07-5004869S
August 5, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S OBJECTION TO PLAINTIFF'S OFFER OF JUDGMENT (#110)
This case arises out of an action filed on May 31, 2007, by the plaintiff, Cory Waldo, against the defendant, Liberty Mutual Fire Insurance Company (Liberty Mutual). In her complaint, the plaintiff alleges that on April 10, 2004, the date she allegedly sustained bodily injury caused by an automobile accident, she was an insured under a Liberty Mutual policy of insurance. On June 30, 2008, the defendant filed an answer and special defenses. On July 9, 2008, the plaintiff filed an offer of judgment pursuant to Connecticut General Statutes § 52-192a in the amount of $25,000.00. The defendant objected to the offer of judgment on July 11, 2008; the plaintiff filed her "Memorandum Regarding Objection to Offer of Judgment" on July 18, 2008, and the defendant followed with its reply on July 29, 2008. The matter appeared on the short calendar as a non-arguable on August 4, 2008.
Connecticut General Statutes § 52-192a, as amended by Public Act 2007, NO. 07-141, provides, in pertinent part:
(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.
Section 52-192b provides, "sections 52-192a to 52-195, inclusive, of the General Statutes, revision of 1958, revised to January 1, 2005, shall be applicable to any cause of action accruing prior to October 1, 2005."
General Statutes § 52-192a(a), revised to January 1, 2005, provided, in pertinent part: "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. Upon such filing and the receipt by the plaintiff of such sum certain, the plaintiff shall file a withdrawal of the action with the clerk and the clerk shall record the withdrawal of the action against the defendant accordingly. 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. Any such offer of compromise and any acceptance of the offer of compromise shall be included by the clerk in the record of the case."
Essentially, the parties seek a determination from the court as to whether the plaintiff's cause of action accrued prior to or subsequent to October 1, 2005. If the plaintiff's cause of action accrued prior to October 1, 2005, then an offer of judgment, as opposed to an offer of compromise, is the proper vehicle. In its July 29th reply, the defendant posits that "the date of the underlying accident is not the appropriate date by which to determine the application of the change in the statute. The plaintiff has brought this matter seeking underinsured motorist benefits. An insurer's obligation to pay underinsured motorist benefits is not triggered until after the underlying policy limits have been exhausted. [Citation omitted.] Although the accident occurred in April 2004, the plaintiff did not exhaust the underlying policy limits until well after the October 2005 amendment to § 52-192a. As such, this matter did not "accrue" until after § 52-192a had been amended." In its July 18th memorandum, the plaintiff maintains that "[a]s this motor vehicle accident occurred in April of 2004, the old statute is still in effect."
The parties express no disagreement that offer of judgment law applies to a cause of action accruing before October 1, 2005, and offer of compromise law applies to a cause of action accruing on or after October 1, 2005.
"In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury." (Citations omitted, internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). Here, the plaintiff alleges in her complaint that her injuries and damages were due to an auto accident that occurred in April 2004.
As such, the complaint sets forth sufficient facts to establish that the plaintiff knew she was injured, due to conduct of the defendants, well before October 1, 2005. See Glover v. Turner, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. 05 4003471 (January 26, 2007) (Esposito, J.), (motor vehicle accident of May 21, 2003 gave rise to cause of action accruing prior to October 1, 2005 such that offer of judgment statute applied); Prims v. Ciccarelli, Superior Court, judicial district of New Britain, Docket No. 05 5000530 (September 21, 2007) (Shaban, J.) [44 Conn. L. Rptr. 343] (parties agreed that medical malpractice action rising out of October 24, 2003 surgery accrued prior to October 1, 2005; overruling defendant's objection to plaintiff's offer of judgment); D'Agostino v. Griffin Hospital, Superior Court, judicial district of Ansonia-Milford, Docket No. 06 5000435 (December 5, 2006) (Esposito, J.), (medical malpractice action accrued when plaintiff sustained injuries on October 29, 2003 overruling defendant's objection to plaintiff's offer of judgment).
The court therefore rejects the defendant's position that actionable harm accrued only when the plaintiff exhausted the underlying policy limits.
Accordingly, the defendant's objection to the plaintiff's offer of judgment is overruled.