208 Conn. 82 | Conn. | 1988
In this action to recover damages for the collapse of the roof and walls of a building in the town of Glastonbury, owned by the plaintiff Daniel Civiello and leased to the plaintiff Cycle World, Inc., a jury returned a verdict of $153,522 against the defendant National Lumber Company.
This appeal presents two issues: (1) a jurisdictional question, whether a plaintiff who has accepted a remittitur order may, nevertheless, appeal from the judgment containing that order;* *
I
A
The parties appear to have assumed that the jurisdictional issue is one of first impression in this state. This court, however, in Beers v. New York, N.H. & H. R. Co., 89 Conn. 711, 713, 94 A. 919 (1915), rejected the suggestion of a plaintiff, who had refused to file a remittitur and had taken an appeal from an order conditionally setting aside the verdict, that, if his appeal should prove unsuccessful, we should direct judgment for the amount to which the verdict would have been reduced if the remittitur had been accepted. “[The plaintiff] cannot be allowed to speculate upon his chances, and now, without a new trial, recover a judgment for the amount which he rejected in the Superior Court.” Id. In an earlier case approving the practice of ordering a remittitur where the damages awarded by a jury were clearly excessive, we recognized that an order of remittitur presented a plaintiff with a choice of two alternatives: “The plaintiff is not compelled to remit the sum suggested by the trial court, but may elect either to submit to a new trial, or to seek,
While the vintage of our most significant precedent, Beers v. New York, N.H. & H. R. Co., supra, exceeds a half century, the United States Supreme Court more recently has resolved conflicts among the federal courts in favor of adhering to “[a] line of decisions stretching back to 1889” holding that a plaintiff cannot, by accepting the order under protest, “appeal the propriety of a remittitur order to which he has agreed.” Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S. Ct. 835, 51 L. Ed. 2d 112 (1977). The court upheld the Second Circuit Court of Appeals in dismissing the appeal for lack of a final judgment. Donovan v. Penn Shipping Co., 536 F.2d 536 (2d Cir. 1976). The Second Circuit majority opinion, in addition to reliance upon precedent, had stressed three grounds in support of its position: (1) “[t]he proliferation of appeals would be the inevitable consequence” of permitting a plaintiff, who “would have nothing to lose” after guaranteeing himself a minimum verdict, to appeal under protest in an attempt to restore the original verdict; id., 537; (2) the policy against piecemeal appeals embodied in the final judgment rule would be violated by sanctioning an appeal from a conditional order for a new trial; and (3) “in
A majority of the state courts that have considered the issue have held that at common law the plaintiff who accepts a remittitur in lieu of a new trial is bound by his election and cannot appeal from the judgment ordering the remittitur. Annot., 16 A.L.R.3d 1327, 1329; W. Maywhort, “Remitting Parties’ Right to Cross-Appeal,” 49 N.C.L. Rev. 141 (1970). The rule has been abrogated by statute in at least one state. Tenn. Code Ann. §§ 20-10-102, 20-10-103. It has been modified by statute or judicial decision in several states to permit a plaintiff to file a cross appeal from a remittitur order where the defendant has initiated the appeal, a situation in which considerations of efficient judicial administration would favor the disposition of all of the issues in one appeal. Neb. Rev. Stat. § 25-1929 (1943); Mulkerin v. Somerset Tire Service, Inc., 110 N.J. Super. 173, 264 A.2d 748 (1970); Plesko v. Milwaukee, 19 Wis. 2d 210, 120 N.W.2d 130 (1963).
The plaintiffs in this case do not dispute the force of precedent barring a plaintiff from appealing from a remittitur order that he has accepted. They contend that their appeal can be maintained, nevertheless, because they do not contest the propriety of the $36,000 reduction in the jury verdict, corresponding to the payments received from other tortfeasors, and seek only to challenge the refusal of the trial court to award interest pursuant to § 52a-192a (b), a wholly separate deter
B
The reduction of $36,000 in the jury verdict effectuated by the remittitur order in this case did not result from a conclusion of the trial court that the jury had awarded excessive damages based on the evidence presented to it. In accordance with the practice established by General Statutes § 52-216a,
Accordingly, we conclude that the reduction in the verdict ordered by the trial court was a final judgment from which the plaintiffs are entitled to appeal. There could properly be no further proceedings in the trial
II
The plaintiffs’ claim for interest is based on the provision of § 52-192a (b) that requires the court, when “the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ ” to “add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981.” The offer of judgment for $125,000 was filed by the plaintiffs on November 22, 1979. The jury verdict of $153,522 was returned on April 10,1987, and the judgment on the verdict, ordering that the plaintiffs recover that sum less a remittitur of $36,000, subject to their option for a new trial, was rendered on June 3, 1987.
The plaintiffs contend that, because the verdict of $153,522 without the $36,000 reduction ordered by the court exceeds their offer of judgment, they have recovered more than their $125,000 offer of judgment and, therefore, are entitled to interest pursuant to § 52-192a (b). The issue turns upon whether the term “recovered” in the statute refers to the verdict as returned by the jury or the judgment thereon as rendered by the court after making appropriate adjustments. Some of the definitions of “recover” in the legal context are “to gain by legal process”; Webster’s Third New International Dictionary; “to acquire by means of litigation”; Ballentine’s Law Dictionary (3d Ed.); “to
Apart from this lexicographical illumination of the subject, it would be incongruous to reward a plaintiff with interest pursuant to the statute where his offer of judgment proves to be excessive in the light of the ultimate judgment of the court. Where a jury verdict is properly deemed excessive and accordingly reduced by a remittitur when judgment is rendered, the statute 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. A defendant is not bound at his peril to accept an offer of judgment that is excessive as a matter of law simply because of the possibility that a jury may award such an exorbitant sum. The proposition advanced by the plaintiff that the amount of the verdict and not the judgment should be determinative of the allowance of interest under § 52-192a would provide an incentive for a plaintiff to make an offer of judgment far in excess of what the law would deem reasonable.
The plaintiffs contend that the policy of encouraging settlements, which is the underlying purpose of § 52-192a, will be defeated if we construe the term “recovered” to refer to the judgment rather than the verdict. They maintain that “[i]f partial settlements are held to reduce a plaintiff’s ‘recovery’ below the offer
Furthermore, 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
There is no error.
In this opinion the other justices concurred.
The action was brought against six defendants. Before trial it was withdrawn against four original defendants, two of which, Hydro Air Engineering, Inc., and Edmund Cox paid a total sum of $36,000 in settlement of the claims against them. In the trial against the remaining defendants, Quality Lumber Company and National Lumber Company, the jury returned a verdict for the former but against the latter. The opinion refers to National Lumber Company, the appellee, as the sole defendant.
General Statutes § 52-192a (b) provides: “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 his ‘offer of judgment,’ the court shall add
It should be noted that General Statutes § 52-228a provides expressly that in any jury case where the court orders a remittitur or an additur, the party aggrieved “may appeal as in any civil action.” The statute also provides that “[t]he appeal shall be on the issue of damages only, and judgment shall enter upon the verdict of liability and damages after the issue of damages is decided.”
The legislative history of this enactment indicates that its purpose was to limit the issues to damages when a new trial is ordered pursuant to a remittitur or additur, making it unnecessary to retry the issue of liability
“[General Statutes] Sec. 52-216a. reading of agreements or RELEASES TO JURY PROHIBITED. ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”
“[General Statutes] Sec. 52-228b. setting aside of verdict in action claiming money damages. No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”
In 1982, the legislature amended the provision concerning the calculation of interest on the amount “contained in such offer” by substituting the amount “of the verdict,” corresponding to the provision for adding such interest “to the verdict.” Public Acts 1982, No. 82-228. A further amendment in 1983 substituted “add to the amount so recovered [interest] on said amount” for “add to the verdict [interest] on the amount of the verdict.” Public Acts 1983, No. 83-295. This 1983 amendment apparently was occasioned by the legislative intention to make it clear that General Statutes § 52-192a is applicable to court as well as jury trials. See Kusha v. Respondowski, 3 Conn. App. 570, 575, 490 A.2d 1014 (1985).