40 Conn. App. 577 | Conn. App. Ct. | 1996
Lead Opinion
This matter is currently before us on remand from our Supreme Court.
The relevant facts regarding the plaintiffs employment history at Posi-Seal and events leading to his termination are included in our original opinion. Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 3, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).
I
FRONT PAY AWARD
The defendant claims that there was insufficient evidence adduced at trial to support the front pay damage award.
The following additional facts are relevant to this claim. The plaintiff had been employed by the defendant for more than ten years, and was earning an hourly wage
“Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true. . . . It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. ...” (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 528, 657 A.2d 230, cert. denied, 232 Conn. 907, 659 A.2d 1207 (1995).
“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... It has traditionally been
We have already set out in detail the facts that the jury could reasonably have found. The issue that remains to be determined is whether the jury could reasonably have concluded, on the basis of the evidence before it, that the damage attributed to future wage loss-impairment of earning capacity amounted to $271,775. The plaintiff has, by obtaining employment elsewhere, either avoided or mitigated the loss.
“Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. . . . The only practical test to apply to a
After a thorough review of the record, we conclude that the award is not supported by the evidence and shocks the sense of justice. The jury awarded damages of $271,775 to the plaintiff for future wage loss-impairment of earning capacity despite the fact that the plaintiff called no witness to testify as to the impairment of his earning capacity. To the contrary, the only evidence in the record regarding his earning capacity was that he earned more money per hour working at Electric Boat at the same type of job than he would have earned at Posi-Seal. Although there were rumors of layoffs at Electric Boat, the plaintiff failed to call any witnesses to testify regarding his job security, or any other matter related to his employment there. At both Posi-Seal and Electric Boat, the plaintiff had insurance benefits and received employer contributions into a pension fund, but he did not call any witness to testify as to the comparative value of the medical, dental, life insurance
The plaintiff testified that compared to Posi-Seal, he was entitled to less vacation time and no sick pay at Electric Boat. He also testified that, at the time of trial, he could not work the day shift at Electric Boat as he had at Posi-Seal. There was no testimony, however, as to the value of such differences. We conclude that the evidence presented was insufficient to support any award of damages for future wage loss-impairment of earning capacity, and the front pay award must, therefore, be set aside.
II
PUNITIVE DAMAGES
The defendant next claims that the trial court improperly failed to grant its motion notwithstanding the verdict as to the punitive damages award. The plaintiff, in his cross appeal, claims that the trial court improperly reduced the punitive damages award on remittitur. The following additional facts are relevant to these claims. The trial court instructed the jury that punitive damages may be awarded only for malicious and outrageous conduct, that is, actions done with a bad motive or reckless indifference to the interest of others. It further instructed the jury that the amount to be awarded as punitive damages, if any, should be reasonable attorney’s fees incurred by the plaintiff. The jury returned a verdict for the plaintiff, awarding him punitive dam
We agree with the defendant’s claim that the punitive damages award cannot stand in the absence of a verdict in the plaintiffs favor on a cause of action sounding in tort.
In Connecticut, punitive damages are rarely allowed for breach of contract. The single reported case in which an award of punitive damages for breach of contract was upheld is L. F. Pace & Sons, Inc., a case in which the plaintiff was damaged by the defendant’s breach of its implied contract to issue certain surety bonds. Id., 30. In making that decision, we found instructive the California precedent set out in Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., 34 Conn. Sup. 46, 375 A.2d 428 (1977), another case in which the plaintiff claimed injury due to an insurer’s failure to perform its obligations under a contract.
In both L. F. Pace & Sons, Inc., and Grand Sheet Metal Products Co., the principles articulated in Gruenberg v.
The California courts have previously considered this question. In Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (1988), the California Supreme Court overruled a line of California Court of Appeals cases holding that punitive damages could be recovered for a bad faith breach of the implied covenant of good faith and fair dealing in an employment contract.
We find the reasoning in Foley persuasive. In particular, we agree with the California Supreme Court that the role of an employer with respect to its employee differs from the role of a “quasi-public” insurance company with respect to the customer to whom it sells protection from harm. The employer does not sell protection to its employee in the same way that an insurer sells protection. Instead, the financial security sought by an employee from the employer is not so very different from the financial security sought by one who enters into an ordinary commercial contract. Just as breach of
Furthermore, there is a fundamental distinction between insurance and employment relationships. The interests of the insurer and insured are at odds, payment of a claim benefits the insured and diminishes the resources of the insurer. By contrast, the employer and employee, generally speaking, share the goal of the employer’s retaining in its employ good productive workers. It is not in the employer’s interest to discharge an employee without cause; if the job must be done, the employer still must pay someone to do it. “This is not to say that there may never be a ‘bad motive’ for discharge not otherwise covered by law. Nevertheless, in terms of abstract employment relationships as contrasted with abstract insurance relationships, there is less inherent relevant tension between the interests of employers and employees than exists between that of insurers and insureds. Thus the need to place disincentives on an employer’s conduct in addition to those already imposed by law
Consequently, we hold that, at least where there is no allegation or proof that the termination of employ
In light of our holding, there is no need to address the plaintiffs claim that the trial court should not have ordered a remittitur with regard to the punitive damages award.
Finally, the defendant has asked us to reconsider on remand the disposition in our original decision ordering a new trial on both liability and damages. We ordered supplemental briefs from the parties on this issue, and we now conclude that a new trial is not necessary. As we originally noted, generally the issues of liability and damages are so interwoven that they may not be separated without injustice to one of the parties and, therefore, if a remand is ordered, the order restricting the issues to be retried is the exception and not the rule. Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). In this case at this juncture, however, we see no reason to order a retrial. The surviving damage award is for back pay only, due to the breach of the implied contract of employment. Neither the defendant nor the plaintiff raised any claim on appeal that the amount awarded for back pay was inappropriate, and there is
Furthermore, the damage awards that have been set aside, i.e., damages for future lost wages and punitive damages, were clearly separable from the surviving back pay award. The future lost wages award was based on a different time period, and the punitive damages were based on the amount of attorney’s fees. Damage awards that were separable from other damages have been set aside without requiring a new hearing in damages. See, e.g., Kenny v. Civil Service Commission, 197 Conn. 270, 496 A.2d 956 (1985) (back pay award set aside and award for future lost wages reduced; judgment directed in amount of remaining damages); Lembo v. Schlesinger, 15 Conn. App. 150, 543 A.2d 780 (1988) (punitive damage award set aside and judgment directed in amount of compensatory damages only).
Under the circumstances of this case, we do not think further proceedings in the trial court would serve the interests of justice.
The judgment is reversed with respect to the award of damages for future lost wages and the award of punitive damages, and the case is remanded to the trial court with direction to render judgment for the plaintiff in the amount of $52,275.
In this opinion SPEAR, J., concurred.
Petitions for certification were filed by the plaintiff and the defendant and denied on December 12, 1994. Barry v. Posi-Seal International, Inc., 231 Conn. 942, 653 A.2d 822 (1994). After the Supreme Court ruling in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34, 662 A.2d 89 (1995), holding that loss of future wages, or “front pay,” can be awarded in an action for breach of an employment contract, the court reconsidered and, on July 26, 1995, granted the plaintiffs petition for certification and remanded the matter to this court “for further consideration in light of this court’s decision in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., [supra, 1].” Barry v. Posi-Seal International, Inc., 235 Conn. 901, 664 A.2d 1124 (1995).
In light of the Supreme Court’s remand in Torosyan, we do not address the defendant’s claim as to the existence of an employment contract.
The record is devoid of any testimony concerning the plaintiffs wages during this period of time.
In his brief, the plaintiff suggests the jury found several facts as to his employment based on the testimony presented to them. A reading of the record fails to show this. Moreover, as to these facts, there is an absence of citations to testimony that would direct us. See Practice Book § 4066 (c).
Even if we were to find the differences that the plaintiff claims between the two companies’ pension plans could be quantified, he has already received any such differences as part of his back pay award, set out in the jury’s interrogatories. The jury was specifically instructed by the trial court to include in Barry’s back pay award “any future pension loss you may find he has sustained.”
The jury awarded the plaintiff the following damages: $52,275 back pay, $271,775 future wage loss, $42,315 infliction of emotional distress and negligent misrepresentation, and $50,000 punitive damages.
The jury returned a verdict in the plaintiffs favor on the counts sounding in intentional infliction of emotional distress and negligent misrepresentation. In our earlier opinion in this case, we held that the trial court correctly
In Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., supra, 34 Conn. Sup. 46, the Superior Court overruled a demurrer to the plaintiffs cause of action for tortious breach of the covenant of good faith and fair dealing that is implied in an insurance contract. We leave for another day the question of whether a separate cause of action, in tort or in contract, ever lies for the breach of an implied covenant of good faith and fair dealing, absent a claim that the breach constitutes a violation of public policy. Cf. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984) (at-will employee has cause of action in contract for violation of covenant of good faith and fair dealing when termination claimed to be in violation of public policy). No claim of a violation of public policy was made in the present case.
We note that the California Supreme Court has recently acknowledged the continued validity of Foley v. Interactive Data Corp., supra, 47 Cal. 3d 654, in Nedlloyd Lines B. V. v. Superior Court, 3 Cal. 4th 459, 485, 834 P.2d 1148, 11 Cal. Rptr. 2d 330 (1992).
In this state such protections include, among other things, statutory prohibitions against discharge of employees who report an employer’s illegal activities; General Statutes § 31-51m; discharge due to an employee’s exercise of first amendment rights as long as the exercise of the rights does not interfere with the employee’s work; General Statutes § 31-51q; discharge for exercise of rights under the Workers’ Compensation Act; General Statutes § 31-290a; discharge for filing a complaint under the Connecticut Occupational Safety and Health Act; General Statutes § 31-379; and discharge of an employee based on the employee’s status as a member of certain protected classes. General Statutes § 46a-60 et seq.
See, e.g., the statutes referred to in footnote 9.
Cf. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984); Battista v. United Illuminating Co., 10 Conn. App. 486, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987), both cases where the employee, unlike the employee here, was an employee at will.
We are mindful of the Supreme Court’s decision in Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 222 A.2d 220 (1966). In that case, which did not involve termination of employment, the Supreme Court acknowledged the evolving law of contract damages that allows recovery of punitive damages if the breach of contract has elements that bring it within the field of tort. The Supreme Court did not uphold the damage award in that case, however, and, as discussed in the text, the principles announced in Triangle Sheet Metal Works, Inc., have been followed only in regards to insurance.
Concurrence Opinion
concurring. I remain persuaded that there was insufficient evidence to find an implied contract of employment. See Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 22-28, 647 A.2d 1031 (1994) (Foli,
