288 Conn. 38

JULIANN STIFFLER v. CONTINENTAL INSURANCE COMPANY

(SC 17761)

Norcott, Katz, Vertefeuille, Zarella and Schaller, Js.

*39Argued February 8

officially released July 22, 2008

Michael A. Colombo, Jr., with whom was Devin Janosov, for the appellant (plaintiff).

Kerry R. Callahan, with whom was Eric D. Eddy, for the appellee (defendant).

Opinion

VERTEFEUILLE, J.

The principal issue in this appeal is whether, in an action to recover underinsured motor*40ist benefits, offer of judgment interest awarded pursuant to General Statutes (Rev. to 2005) § 52-192a (b)1 is based on the amount of the jury verdict (verdict amount), or on the amount of the judgment thereon after the trial court orders a remittitur due to the limits of the plaintiffs underinsured motorist coverage (judgment amount). The plaintiff, Juliann Stiffler, appeals2 from the judgment of the trial court in her favor, which included an award of prejudgment interest on the judgment amount rather than the verdict amount. The plaintiff claims that the trial court improperly calculated the interest due her. We disagree, and, accordingly, we affirm the judgment of the trial court.

*41The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiff originally brought this action against the defendant, Continental Insurance Company, now known as Encompass Insurance Company,3 seeking underinsured motorist benefits for personal injuries she sustained as a result of a motor vehicle accident. At the time of the accident, the plaintiff was insured under a policy issued to her parents by the defendant that provided uninsured and underinsured motorist coverage in the amount of $50,000. After exhausting the $20,000 limit of the tortfeasor’s policy, the plaintiff brought this action seeking additional compensation by way of underinsured motorist benefits. Before trial, the plaintiff filed an offer of judgment in the amount of $20,000. The defendant did not accept the offer, and, therefore, it was deemed to have been rejected pursuant to § 52-192a (a).4

Following a jury trial, a verdict was returned in favor of the plaintiff in the amount of $465,234.43. The defendant thereafter filed a motion for collateral source reduction, and the trial court reduced the verdict by $10,000 to $455,234.43, to reflect medical payments made on the plaintiff’s behalf. Subsequently, the defendant filed a motion for remittitur, asserting that the verdict was excessive as a matter of law given the $50,000 limit of the applicable underinsured motorist coverage. The trial court granted in part and denied in part the defendant’s motion, and reduced the award to *42$20,000.5 Thereafter, the court ordered that the defendant pay offer of judgment interest pursuant to § 52-192a (b) in the amount of $7800,6 which was computed using the judgment amount of $20,000 rather than the verdict amount. This appeal followed.

I

The plaintiff first claims that the trial court improperly calculated offer of judgment interest pursuant to § 52-192a (b) by calculating the interest based on the judgment amount rather than the verdict amount.7 Specifically, the plaintiff contends that the legislative intent and policy underlying § 52-192a (b), as well as this court’s decisions in Cardenas v. Mixcus, 264 Conn. 314, 823 A.2d 321 (2003), and Accettullo v. Worcester Ins. Co., 256 Conn. 667, 775 A.2d 943 (2001), support her contention that offer of judgment interest should be calculated on the verdict amount rather than the judgment amount. The defendant responds that this court’s decision in Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 544 A.2d 158 (1988), controls the outcome of this case, and that the legislative history and genealogy of § 52-192a (b) dictate that offer of judgment interest is to be calculated on the amount of the trial court’s judgment rather than on the verdict itself. We agree with the defendant.

The plaintiffs claim raises an issue of statutoiy interpretation, over which we exercise plenary review. See, *43e.g., Considine v. Waterbury, 279 Conn. 830, 836, 905 A.2d 70 (2006). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine the meaning, General Statutes § l-2z8 directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Id., 836-37.

Although we generally begin with the text of the statute, we note that we are not writing on a clean slate as the purpose and structure of our offer of judgment statute have been identified. The purpose of § 52-192a (b) is to “encourage pretrial settlements and, consequently, to conserve judicial resources.” Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 742, 687 A.2d 506 (1997). The statute is intended to “[encourage] defendants to accept reasonable offers of judgment,” and requires defendants who *44fail to accept such offers to pay penalty interest. (Internal quotation marks omitted.) Id. Section 52-192a (b) therefore “requires a trial court to award [12 percent annual] interest to the prevailing plaintiff from the date of the filing of a complaint to the date of judgment whenever: (1) a plaintiff files a valid offer of judgment within eighteen months of the filing of the complaint in a civil complaint for money damages; (2) the defendant rejects the offer of judgment; and (3) the plaintiff ultimately recovers an amount greater than or equal to the offer of judgment.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 55, 717 A.2d 77 (1998). The interest awarded pursuant to § 52-192a (b) “is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 742.

We turn next to the text of the statute. General Statutes (Rev. to 2005) § 52-192a (b)9 provides in relevant part: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ 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 stated in the plaintiffs ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .” (Emphasis added.) The text of § 52-192a (b) calls for interest to be calculated on the “amount so recovered,” which phrase is not defined in the statute. The statute also does not use the terms “verdict” or “judgment.”

*45This court previously has considered the question of the amount on which offer of judgment interest is to be calculated, although not in the present context of a verdict that has been reduced due to the limits of the plaintiffs insurance coverage. See General Statutes § 38a-336 (b).10 In Civiello v. Owens-Corning Fiberglass Corp., supra, 208 Conn. 84-85, the court considered whether the term “recovered” in § 52-192a (b) referred to the verdict amount or the judgment amount when the jury returned a verdict in excess of the amount in the offer of judgment, but the court subsequently ordered a remittitur, resulting in a judgment of less than the offer of judgment amount. More specifically, the plaintiffs brought an action against multiple defendants and thereafter filed an offer of judgment in the amount of $125,000. Id., 83 n.l, 84. Prior to trial, two defendants settled with the plaintiffs for $36,000. Id., 83 n.l. The jury, unaware of this prior settlement, returned a verdict of $153,522 against one of the two remaining defendants. Id., 83, 88. In an effort to avoid unjustly enriching the plaintiffs, the trial court ordered a remittitur of $36,000, thereby reducing the plaintiffs’ recovery to an amount less than the amount of the offer of judgment. Id., 89. The plaintiffs appealed from the trial court’s judgment refusing to order offer of judgment interest on the verdict amount. Id., 84. On appeal, this court considered, inter alia, the issue of “whether a plaintiff who has obtained a jury verdict for an amount in excess of his offer of judgment, when that verdict later is properly reduced by the trial court to a sum less than that *46offer, is entitled to interest pursuant to § 52-192a (b) for having ‘recovered an amount equal to or greater than’ his offer of judgment.” Id., 84-85. This court determined that, given the particular fact situation presented in Civiello, the plaintiffs were not entitled to offer of judgment interest, reasoning that, “[w]here a jury verdict is properly deemed excessive and accordingly reduced by a remittitur when judgment is rendered, [§ 52-192a (b)] could not have been intended to impose the interest penalty upon a defendant for failing to accept an offer of judgment exceeding the upper limit of reasonable compensation as determined by the court.” Id., 91. This court further noted that in such a case, “to make the amount of the jury verdict rather than the judgment thereon the criterion for determining whether a plaintiff has recovered more than his offer of judgment would create a disparity between court and jury trials inconsistent with the legislative intention that § 52-192a (b) apply to both in the same manner.” Id., 92-93.11

More recently, in Cardenas v. Mixcus, supra, 264 Conn. 315 n.1, on which the plaintiff relies, we construed § 52-192a in the context of an employer who intervenes pursuant to General Statutes § 31-293 (a), a provision “ailow[ing] an employer to intervene in an action brought by an employee against a third party tortfeasor . . . .” In Cardenas, the plaintiff, who had been injured during the course of his employment, brought an action against the defendants for personal injuries that he allegedly had suffered in a fall at their home. Id., 317. The plaintiffs employer had paid workers’ compensation benefits to the plaintiff, and subsequently intervened in the action pursuant to § 31-293 (a) to recover these payments. Id. We considered the *47issue of “whether, when an employer intervenes pursuant to ... § 31-293 (a) in an action brought by its employee against a third party tortfeasor, offer of judgment interest awarded pursuant to ... § 52-192a must be based on the amount of the jury verdict, or on the amount of the judgment after apportionment of the damages between the employee and the employer.” Id., 315-17. We concluded that “under the particular circumstances of the present case” the jury verdict rather than the amount of the award due the plaintiff after apportionment should be used in calculating offer of judgment interest. Id., 320-21. Specifically, we reasoned that using the verdict amount was appropriate because, pursuant to § 31-293 (a), the employer effectively stood in the shoes of the employee, and the amount of the verdict reflected the amount properly due the employee. Id., 324. Additionally, we emphasized in Cardenas the purpose of § 52-192a, which is to encourage pretrial settlements, as well as the concern that calculating offer of judgment interest on the judgment amount, given the facts of Cardenas, would have created a dual system of recovery based on whether the plaintiff was an employee at the time she was injured. Id., 322. Finally, we distinguished the circumstances of Civiello, observing that the court’s decision in Civiello to look to the amount of the judgment, rather than the jury’s verdict for purposes of § 52-192a (b), was due to the fact that the jury’s verdict was excessive as a matter of law and the trial court was required to order a remittitur pursuant to General Statutes § 52-216a. Id., 324.

We find the reasoning of Civiello to be particularly instructive. As in Civiello, the plaintiff in the present case stood to recover a jury verdict that was excessive as a matter of law given the limit of her insurance coverage, and the trial court correctly ordered a remittitur pursuant to § 38a-336 (b). By contrast, in Cardenas, “there [was] no question that the verdict actually *48reflected full and fair compensation for the damages suffered.” Cardenas v. Mixcus, supra, 264 Conn. 324. Indeed, as we stated in Cardenas, “[i]n contrast to cases in which a trial court orders a remittitur, a postverdict apportionment pursuant to § 31-293 has no effect on the amount of damages paid by the defendants in a case.” Id. Our prior case law thus strongly suggests that § 52-192a (b) requires that offer of judgment interest is to be calculated on the judgment amount rather than the verdict amount.

This construction of our offer of judgment statute is consistent with another statutory provision that suggests that offer of judgment interest awarded pursuant to § 52-192a (b) is to be calculated on the judgment amount rather than the verdict amount. It is well established that “the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutoiy construction . . . requires [this court] to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 238-39, 915 A.2d 290 (2007).

In the present case, the trial court granted the defendant’s motion for remittitur due to the limit of the plaintiffs underinsured motorist coverage pursuant to § 38a-336 (b),12 which imposes a cap on the amount recoverable by an individual in the plaintiffs situation. This statute is meant to promote the public policy that “every insured recovers the damages he or she would have been able to recover if the uninsured or underinsured *49motorist had maintained an adequate policy of liability insurance . . . equal to the amount of the insured’s uninsured/imderinsured motorist coverage.” (Internal quotation marks omitted.) Dimmock v. Allstate Ins. Co., 84 Conn. App. 236, 242, 853 A.2d 543, cert. denied, 271 Conn. 923, 859 A.2d 577 (2004). Indeed, the underlying purpose of underinsured motorist coverage is “simply ... to provide an insured who is injured in an accident with the same resources he would have had if the tortfeasor had liability insurance equal to the amount of the insured’s uninsured/underinsured motorist coverage.” J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed. 2004) § 1.3, p. 23; see Florestal v. Government Employees Ins. Co., 236 Conn. 299, 310, 673 A.2d 474 (1996) (noting that purpose of underinsured coverage is “neither to guarantee full compensation for a claimant’s injuries nor to ensure that the claimant will be eligible to receive the maximum payment available under any applicable policy . . . [and that] underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor” [internal quotation marks omitted]).

To allow a plaintiff to recover offer of judgment interest on the verdict amount, an amount that is excessive as a matter of law under § 38a-336 (b), would contravene the public policy that § 38a-336 (b) is meant to further. Indeed, it would be incongruous for one provision of our statutory scheme, § 38a-336 (b), to dictate that a plaintiffs recovery cannot exceed a certain level in view of various well established policy concerns, and for another provision, § 52-192a, simultaneously to be construed to allow for this excessive sum to serve as the basis for farther recovery. Construing our offer of judgment statute together with § 38a-336 (b) thus suggests that interest awarded pursuant to § 52-192a (b) *50is to be based on the judgment amount rather than the verdict amount.13

The plaintiff also relies on Accettullo v. Worcester Ins. Co., supra, 256 Conn. 667, in support of her claim. The plaintiff asserts that Accettullo supports her position because this court concluded in that case that the contractual dealings of the parties do not control whether offer of judgment interest is awarded, thus *51suggesting that the offer of judgment interest due the plaintiff should not be limited due to the terms of the insurance policy at issue. In Accettullo, the defendant insurer had claimed that it was not obligated to pay offer of judgment interest pursuant to § 52-192a (b) because the insurance policy between the insurer and the insured did not expressly provide for it. Id., 668-69. This court concluded that the parties’ “contractual policy limitations have no effect on the punitive nature of the statute or the clear legislative intent of § 52-192a to promote settlements and preserve judicial resources,” and therefore upheld the trial court’s award of offer of judgment interest to the plaintiff. Id., 673. The plaintiff in the present case overlooks the existence of § 38a-336 (b), which limits the judgment amount in this case to the amount of the plaintiffs underinsured motorist coverage. Consequently, Accettullo is inapposite.

We therefore conclude that the trial court in the present case correctly awarded offer of judgment interest based on the judgment amount rather than the verdict amount.

II

The plaintiff next claims that the trial court improperly failed to award her attorney’s fees pursuant to § 52-192a (b). We conclude that the record is inadequate to review this claim.

The following additional procedural history is necessary to our resolution of this claim. After the jury returned a verdict in the plaintiffs favor, the plaintiff filed a memorandum in which she advocated a particular method for calculating offer of judgment interest, and also requested attorney’s fees in the amount of $350 pursuant to § 52-192a (b). The defendant filed an objection to the plaintiffs method of calculating offer of judgment interest and subsequently filed its own *52computation of offer of judgment interest. The trial court sustained the objection, and thereafter ordered offer of judgment interest in the amount of $7800 in accordance with the defendant’s computation. The trial court’s order made no mention of attorney’s fees, and the plaintiff failed to file a motion for articulation regarding the court’s failure to address this issue. Although the plaintiff filed a motion for articulation with the trial court regarding the court’s offer of judgment interest calculation, the motion did not request articulation of the trial court’s failure to award attorney’s fees.14

An award of attorney’s fees is discretionary under § 52-192a (b). In the present case, it is unclear from the trial court’s order why the court failed to order them. “Under these circumstances, the plaintiff should have filed a motion for articulation to preserve an adequate record for review. See Practice Book §§ 61-1015 and 66-5.”16 Stone-Krete Construction, Inc. v. Eder, 280 Conn. *53672, 685, 911 A.2d 300 (2006). It is the appellant’s responsibility “to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 704 n.5, 945 A.2d 927 (2008). In the absence of an articulation, we are unable to determine the basis for the trial court’s decision, or whether the trial court simply overlooked the award of attorney’s fees. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other justices concurred.

Stiffler v. Continental Insurance
288 Conn. 38

Case Details

Name
Stiffler v. Continental Insurance
Decision Date
Feb 8, 2008
Citations

288 Conn. 38

Jurisdiction
Connecticut

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