218 Conn. 531 | Conn. | 1991
Lead Opinion
This consolidated appeal arises out of an alleged automobile accident between the named plaintiff, Debra A. Gurliacei,
The relevant portions of the complex procedural history of this consolidated appeal are as follows. On February 2, 1983, the alleged accident between the plaintiff and Mayer occurred. On February 1,1985, one day before the statute of limitations on the action passed, the plaintiff served her first complaint against Mayer and Stamford. On April 2, 1985, Mayer and Stamford moved to dismiss the action for lack of subject matter jurisdiction based on the fellow employee immunity provision of General Statutes (Rev. to 1983) § 7-465.
Thereafter, Stamford moved to strike the third count of the plaintiff’s amended complaint alleging liability
Mayer moved for summary judgment on the fourth and fifth counts of the plaintiffs complaint, relating to Louis Gurliacci’s claim against Mayer for loss of consortium. The court, Cioffi, J., granted the motion for summary judgment.
Mayer then moved to amend his special defenses to include a claim that the plaintiff’s amended complaint was barred by the statute of limitations, General Statutes § 52-584.
On March 21,1989, Stamford filed a motion to intervene as a plaintiff pursuant to General Statutes § 31-293 (a), claiming that it was not barred by the
Eventually, the case proceeded to trial. The court, Lewis, J., bifurcated the proceedings, with the issues of liability and damages and the issue of the exclusivity of the Workers’ Compensation Act tried separately. The jury determined that Mayer was negligent and awarded damages to the plaintiff in the sum of $485,000. The court denied Mayer’s motion to set aside the verdict. Thereafter, Stamford moved for apportionment of damages, and the court granted the motion in part.
The jury could reasonably have found the following facts. On February 2,1983, at approximately 1:30 a.m., the plaintiff, a Stamford police officer, was on patrol in an unmarked police car. As she was driving south on Glenbrook Road, the plaintiff noticed that the car behind her was driving very close to her, flashing its high beams, and then retreating. After this had occurred numerous times, she made a left turn onto Ely Place in order to allow the car to pass and to determine why the car was following her. The other car likewise turned onto Ely Place, and hit the rear of the plaintiff’s car causing her to be thrown around the inside of her car.
The plaintiff exited her car and approached the other car. At that time, she learned that the other driver was Mayer, the deputy chief of police of Stamford, who was also driving an unmarked police car. Mayer was intoxicated and abusive, having consumed four to six scotches with water in the preceding four to six hours.
The plaintiff summoned other officers to the scene. Those officers filed reports describing Mayer as intoxicated and abusive to the plaintiff and to them. At that time, the plaintiff reported no injuries, and finished her shift.
The next day, the plaintiff was sore and suffering from a stiff neck and pain in her shoulder blades. Upon arriving at work, she reported her injuries to the police department and went to Stamford Hospital for medical attention. Also at that time, the plaintiff examined the rear bumper of her car and noticed slight damage, which she reported to the police department.
The plaintiff intermittently missed work for one and one-half years as a result of neck and back pain. The jury also could have found that the plaintiff has been totally incapacitated from working as a police officer since July, 1984. From 1983 to 1986, the plaintiff was under the care of numerous doctors for treatment of her neck and back injuries. Since the accident, the plaintiff has been admitted to Stamford Hospital and St. Raphael’s Hospital, and has undergone extensive medical treatment and surgery for a herniated disk. She is presently suffering from a disability of her back, and, according to medical testimony, may never return to police work.
I
Mayer’s Appeal
On his appeal, Mayer claims that the court improperly: (1) refused to allow evidence of the plaintiff’s continued receipt of full pay as evidence of malingering;
A
We first consider Mayer’s claim that the court/ improperly denied his motion to dismiss the plaintiff’s original complaint for lack of subject matter jurisdiction. This claim raises the issue of whether a motion to dismiss is the correct procedural vehicle with which to challenge a complaint that, on its face, alleges a cause of action falling under the fellow employee immunity rule. General Statutes (Rev. to 1983) § 7-465 (a)
Mayer claims that the language of § 7-465 deprived the trial court of subject matter jurisdiction because the allegations of the plaintiff's complaint alleged a cause of action in negligence between fellow municipal employees. Therefore, Mayer argues, the court was required to grant the motion to dismiss. We disagree.
“ ‘Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.' ” LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). We begin with the premise that the Superior Court has subject matter jurisdiction over negligence suits between fellow employees where the injury arose when the employee was acting outside the scope of employment or wilfully or maliciously. General Statutes § 7-465. The question, therefore, is whether the failure of the plaintiff to allege sufficient facts to fall within either of these two exceptions deprived the court of subject matter
Our case law demonstrates that parties have employed and we have reviewed both motions to dismiss and motions to strike as procedures by which to challenge a complaint on the grounds that a cause of action falling under the fellow employee immunity rule was properly relegated to the workers’ compensation commission. Compare McKinley v. Musshorn, 185 Conn. 616, 441 A.2d 600 (1981) (motion to dismiss), and Pallanck v. Donovan, 105 Conn. 591, 136 A. 471 (1927) (plea in abatement), with Edmundson v. Rivera, 169 Conn. 630, 363 A.2d 1031 (1975) (demurrer to complaint), and Hope v. Cavallo, 163 Conn. 576, 316 A.2d 407 (1972) (demurrer for failure to state cause of action). Furthermore, in those cases where a motion to dismiss for lack of subject matter jurisdiction was used, the parties did not explicitly raise the issue of the propriety of the procedural posture. See, e.g., McKinley v. Musshorn, supra. We do not read our case law, therefore, as conclusively deciding that such a claim is subject matter jurisdictional.
Mayer argues that the court lacked subject matter jurisdiction because “[t]he Workers’ Compensation Commission has exclusive jurisdiction over intraworkplace claims, unless an exception is satisfied.” Mayer overlooks, however, the fact that the exclusivity of the workers’ compensation commission is not absolute, because § 7-465 provides that a municipal employee has a cause of action for negligence against
Therefore, the fact that the plaintiffs complaint failed to allege facts that would have removed it from the operation of the fellow employee immunity rule merely reflects that the complaint failed to state a legally sufficient cause of action. Practice Book § 152. We have previously held that if a “pleading ... on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted,” a motion to strike is required. Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984); see also Practice Book § 152. A motion to dismiss, by contrast, “properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis in original.) Baskin’s Appeal from Probate, supra. In this case, Mayer’s motion in effect challenged the failure of the plaintiff’s original complaint to invoke the statutory exceptions to the fellow employee immunity rule. Because this challenge was to the legal sufficiency of the complaint, Mayer’s motion to dismiss was improper.
An examination of the result of Mayer’s argument further supports our conclusion. Interpreting the language of § 7-465 as subject matter jurisdictional, taken to its logical conclusion, would require a trial court, after trial, to dismiss for lack of subject matter jurisdiction a complaint that at the outset properly alleged an exception to the fellow employee immunity rule, if the factfinder ultimately concluded that the defendant
Because of our determination that the plaintiff’s complaint was within the trial court’s subject matter jurisdiction, albeit subject to a motion to strike for failure to state a legally sufficient claim, we now determine whether the trial court properly considered the plaintiff’s motion to amend the complaint before ruling on the motion to dismiss. We conclude that the trial court should not have allowed the amendment before ruling on the motion to dismiss, but we determine that this was harmless in light of our conclusion that the defect in the plaintiff’s original complaint was not jurisdictional in nature.
It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989); Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). In this case, the trial court allowed the plaintiff to amend her complaint prior to ruling on the motion to dismiss. By considering the motion to amend prior to ruling on the challenge to the court’s subject matter jurisdiction, the court acted inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made. Statewide Grievance Committee v. Rozbicki, supra. This action of the trial court was harmless, however, because, even had the motion to dismiss been heard prior to the amendment of the complaint, it should have been denied.
We next consider Mayer’s claim that the trial court improperly struck his special defense that the plaintiff’s amendment of her complaint was barred by the two year negligence statute of limitations set forth in General Statutes § 52-584.
The alleged accident occurred on February 2,1983. On February 1,1985, the plaintiff’s first complaint was served on Mayer. This complaint alleged that Mayer was acting negligently in operating his automobile while intoxicated, thereby injuring the plaintiff. After the limitations period had passed, the court allowed the plaintiff to amend her complaint to add the allegations that Mayer was acting either wilfully, wantonly and maliciously, or outside the scope of his employment.
Mayer raised the special defense that the amended complaint was barred by the statute of limitations because it stated a new cause of action that did not relate back to the original complaint. The court, Lewis, J., granted the plaintiff’s motion to strike this defense. The parties agree that if the amended complaint did not relate back to the original complaint, the plaintiff’s ultimate cause of action was barred by the statute of limitations. Sharp v. Mitchell, 209 Conn. 59, 71-72, 546 A.2d 846 (1988). We conclude that the amendment related back and that, therefore, the court properly granted the motion to strike the special defense. Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 240, 429 A.2d 486 (1980).
“ ‘A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff
We have previously recognized that our relation back doctrine “is akin to rule 15 (c) of the Federal Rules of Civil Procedure, which provides in pertinent part: ‘(c) relation BACK OF amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.’ ” Giglio v. Connecticut Light & Power Co., supra, 239-40; see also Sharp v. Mitchell, supra, 72. The policy behind rule 15 (c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford. 3 J. Moore, Federal Practice (2d Ed.) 115.15 [3]; see Sharp v. Mitchell, supra; Giglio v. Connecticut Light & Power Co., supra, 240. Because rule 15 provides that an amendment relates back where the original complaint has
Mayer argues that “the change of focus from actions within the scope of employment to actions outside the scope of employment is of such a magnitude as to preclude a relation back for statute of limitations purposes.” In support of this assertion, Mayer primarily relies on Sharp v. Mitchell, supra.
In Sharp v. Mitchell, supra, 72-73, the plaintiffs, in their first complaint, brought a wrongful death action against the defendant based on negligent supervision.
The amendment that occurred in this case is distinguishable from that in Sharp v. Mitchell, supra. In
C
We now turn to Mayer’s claim that the court improperly instructed the jury that, in order for the jury to determine that Mayer was acting in the scope of his employment at the time of the alleged accident, it had to find that he was: (1) “in fact actively engaged in some service for his employer, the Stamford Police Department”; and (2) capable of being so engaged.
The plaintiff was required to prove that Mayer was . acting outside the scope of his employment
Mayer does not challenge the first prong of the instruction, requiring the jury to find that he “was
Larson’s discussion simply notes that capability to engage in one’s employment is an element to be considered in determining whether an employee has, by virtue of his voluntary intoxication, abandoned his employment. 1A A. Larson, supra, § 34.21. Considering an employee’s capability in this limited context does not require, however, that capability to engage must be shown in order for a jury to find that an employee acted within the scope of his employment. Furthermore, the cases cited by Larson indicate that the intoxication of an employee at the time he suffers his injury is merely one consideration in the determination of whether the injury occurred during the course of his employment,
Larson’s discussion and these cases indicate that an employee’s intoxication will not render his conduct outside the scope of employment unless his intoxication is so severe that it incapacitates him from performing his work, as opposed to performing it in an improper manner.
An examination of the challenged instruction in other contexts buttresses our conclusion that the intent of the legislature was not to impose a separate capability test under General Statutes § 7-465. The instruction effectively could decrease the level of responsibility imposed on municipalities under § 7-465, because a
An assertion of employee “incapability” would not be limited to a claim of intoxication. A municipality could defend an indemnification claim by an injured third party by claiming that a municipal employee, who had not slept in eighteen hours, was thereby incapable of driving, despite the fact that the employee was otherwise' acting in the course of the municipality’s business. Also, a municipality could seek to avoid a workers’ compensation claim by claiming that the employee, who lacked the physical strength to perform a certain task, was incapable of performing and, therefore, not within the scope of his employment. We do not believe that § 7-465 contemplates scenarios such as these, and we decline to interpret it so as to permit them.
The plaintiff argues that, even if the instruction was improper, any error was harmless. The plaintiff asserts that the instruction placed a higher burden of proof upon her because she was required to prove not only that the defendant was acting outside the scope of his employment, but also that he was incapable of so acting. On the contrary, the “capability” prong provided the plaintiff with an alternative method of taking her claim outside the operation of the fellow employee immunity rule based upon the defendant’s consumption of alcohol. The plaintiff’s burden was reduced by the instruction because the jury could have determined that the defendant was incapable of performing police work because he had been drinking, despite the fact that it may have also found that he actually was engaged in surveillance at the time of the alleged accident. Thus, the trial court’s instruction improperly
D
We next address Mayer’s claim that the trial court improperly excluded evidence of the plaintiff’s continued receipt of full pay since the date of the alleged accident.
Pursuant to a collective bargaining agreement with the Stamford police department,
The trial court sustained the plaintiffs objection to the evidence. The court believed that it had no discretion to determine whether to allow the evidence because the collateral source rule was an absolute bar to its admission.
The collateral source rule provides that “ ‘a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him.’ Lashin v. Corcoran, 146 Conn. 512,
We do not decide whether under the facts of this case the evidence in question should have been admitted. That determination is to be made by the trial court on remand, after exercising its discretionary function of weighing the probative value of the evidence against its potential prejudicial effect. Nor do we decide the full scope of exceptions to the collateral source rule.
Our sole concern here is whether the trial court had the discretion to permit Mayer to introduce evidence that the plaintiff continued to receive her full salary and benefits for the period preceding trial, where Mayer introduced corroborative evidence that the plaintiff had not attempted to find other employment or to pursue occupational rehabilitation or special placement, and that the plaintiff was performing activities alleged to have been beyond her capabilities, as demonstrated by a videotape. We conclude that the trial court did have that discretion, and that the court’s failure to exercise that discretion was improper. See State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).
E
Mayer finally claims that the trial court improperly refused to allow follow-up questions of a witness, Officer Robert Harrington, after the jury was permitted to submit questions to him pursuant to an experimental program. We disagree.
Harrington, an equipment mechanic with the Stamford police department, examined the vehicles of the plaintiff and Mayer the day after the alleged accident occurred, and testified that he saw no damage to either vehicle. Following his cross-examination, the court asked Harrington two questions that had been submitted by the jury: (1) “In the incident how did it get to the police garage by 9 a.m. that morning?” Harrington answered “I don’t know”; and (2) “Could a car traveling at ten miles an hour be hit by one going fifteen miles an hour or possibly a little faster and not show any visible damage because they were both heading in the same direction?” Harrington answered “[t]hat I really couldn’t say.” The court refused Mayer’s request for follow-up questions. Mayer excepted to this ruling.
The trial court implemented a procedure whereby jurors, at the completion of examination by counsel, were permitted to retire to the jury room in order to formulate questions for submission to the witnesses by
The trial court had instructed counsel that they would be permitted to ask follow-up questions of the witnesses after the questions by the jurors were answered. Because Harrington was a witness for Mayer, such follow-up questions would have constituted, in effect, redirect examination. “[A] witness is permitted on redirect examination to explain or clarify any relevant matters in his testimony which may have been weakened or obscured by his cross-examination.” State v. Conrod, 198 Conn. 592, 596, 504 A.2d 494 (1986). Furthermore, “[t]he extent and scope of redirect examination . . . may be limited within the discretion of the trial judge.” Id.
II
Louis Gurliacci’s Cross Appeal
In his cross appeal, Louis Gurliacci claims that the trial court improperly granted Mayer’s motion for summary judgment regarding his claim of loss of consortium. The facts concerning this claim are undisputed. In October, 1981, the plaintiff and Louis Gurliacci became engaged to be married, and in February, 1982, they began to cohabit. On February 2,1983, the alleged accident occurred. On September 2, 1983, they were married and remain married. Louis Gurliacci claims that the trial court improperly granted Mayer’s motion for summary judgment because “[n]o Connecticut case on point exists as to [the] proposition that a husband’s entire claim for loss of consortium is defeated simply because his marriage to the injured party occurs after the injury.”
“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well estab
In Hopson v. St. Mary’s Hospital, 176 Conn. 485, 493, 408 A.2d 260 (1979), this court abolished the rule set forth in Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911), that disallowed a married person whose spouse had been injured from bringing a claim for loss of consortium. The court in Hopson defined “consortium” as “encompassing the services of the wife, the financial support of the husband, and the variety of intangible relations which exist between spouses living together in marriage. ” (Emphasis added.) Hopson v. St. Mary’s Hospital, supra, 487. The “intangible” factors have been defined as “ ‘constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage. ’ ” (Emphasis added.) Id. We concluded that “[sjhould the victim be married, it follows that the spouse may suffer personal and compensable, though not physical, injuries as a direct result of the defendant’s negligence and that such injuries should not go uncompensated.” (Emphasis added.) Id., 493.
The language and reasoning in Hopson focus on the marital relationship as it existed on the date of the
Furthermore, virtually all of the jurisdictions that have considered the question
The rationale behind this requirement is that “the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance.” Schroeder v. Boeing Commercial Airplane Co., 712 F. Sup. 39, 41 (D.N. J. 1989) (applying the law of New Jersey).
Stamford’s Appeal
We turn now to the claims of the intervening plaintiff, Stamford, on its appeal, and to a related claim of the plaintiff, Debra Gurliacci, on her cross appeal.
The relevant factual and procedural history of these issues is as follows. After the jury awarded the plaintiff $485,000 in damages, Stamford moved for apportionment in order to recover sums alleged to have been paid as workers’ compensation benefits. In particular, Stamford sought reimbursement of: (1) medical expenses
With respect to Stamford’s claims for reimbursement of medical expenses, the court awarded Stamford $18,741.38, less one third for the plaintiff’s attorney’s fees, and found that the city would not be responsible for any future medical bills. The court denied Stamford’s claim for reimbursement of two thirds of the plaintiff’s salary purportedly paid as temporary total disability benefits, finding that Stamford had paid the plaintiff her salary pursuant to a collective bargaining agreement and not pursuant to its workers’ compensation obligations. Regarding Stamford’s claim for the present value of a specific award based on a purported 20 percent permanent partial disability of the plaintiff’s back, the court found that, because the plaintiff had not filed an application for a specific award, Stamford could not be reimbursed, but awarded Stamford a credit should the plaintiff ever make a claim for such specific benefits.
A
Stamford first claims that the court improperly concluded that it was not entitled to reimbursement of two thirds of the plaintiff’s salary under General Statutes § 31-293 (a)
Stamford’s claim involves the question of whether the collective bargaining agreement, which provides
The collective bargaining agreement provides that “all employees are subject to the Workmen’s Compensation Law . . . .” This language necessarily implies that an employee is subject to all provisions of the Workers’ Compensation Act, not solely to those provisions which benefit the employee. General Statutes § 31-293 (a) provides that an employer who has paid or who has become obligated to pay compensation under the Workers’ Compensation Act may bring an action, or join an action brought by the employee,
Our conclusion that two thirds of the plaintiff’s payments represented workers’ compensation benefits is buttressed by Professor Larson, who, in addressing contractual supplements to compensation, states that where, for example, an employer agrees by contract to pay an employee $250 a week instead of the statutory amount of $200, “[o]ne cardinal principle . . . should ordinarily settle most such questions [that arise]. That principle is the simple proposition that the contractual excess is not workmen’s compensation. It performs the same functions, and is payable under the same general conditions, but legally it is nothing more than the fruit of a private agreement to pay a sum of money on specified conditions.” (Emphasis added.) 4 A. Larson, Workmen’s Compensation Law § 97.53. Although this principle has not been universally accepted by other courts; compare Evans v. Missouri
Although we conclude that Stamford may be entitled to recover temporary total disability payments, should
B
Stamford next claims that the trial court incorrectly applied General Statutes § 31-308
Under § 31-293 (a), an employer’s claim, after the employee has recovered damages from a third party, consists of: “(1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” (Emphasis added.) We recently have held, in interpreting § 31-293, that “the employer [has] the right to immediate reimbursement for the present worth of future compensation payments to the extent that the future payments were known and formalized by a commissioner’s ‘award’ prior to the disposition of the third party action. ” (Emphasis added.) Enquist v. General Datacom, supra, 24.
In this case, the amount of a specific award to the plaintiff, should she choose to seek one, is unknown. Furthermore, it is the province of the workers’ compensation commission to determine whether such an award is proper. Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 186, 588 A.2d 194 (1991) (“a future claim for specific benefits would require a separate proceeding before the commissioner”). As provided by one
The plaintiff also claims, however, that “[t]he City has waived its rights as to any recovery of the specific award” because it had the opportunity to present evidence at trial as to the present value of the future specific award and failed to do so. This claim is meritless because no request for a specific award has been filed with the commissioner and no award has been made. Therefore, Stamford had no evidence of present value to present to the trial court, and has not waived its rights to receive a credit should the plaintiff recover an award from Mayer on retrial. See Enquist v. General Datacom, supra, 26.
C
Stamford next claims that the trial court improperly failed to follow the statutory method of apportionment provided by § 31-293 (a). We agree.
Pursuant to Stamford's motion for apportionment, the trial court allowed reimbursement “with respect to medical, hospital and related bills in the amount of $18,741.38,
Section 31-293 (a) provides, in pertinent part, that “[i]f such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery.” (Emphasis added.) The statute then provides that “[i]f the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee.” (Emphasis added.) General Statutes § 31-293 (a).
The legislature specifically stated in § 31-293 (a) that “damages shall be assessed” in the employer’s favor, if sufficient, after deduction of the employee’s expenses from the total of the award. Therefore, we must determine whether the trial court improperly bypassed the statutory method of apportionment by assessing to Stamford a portion of the plaintiff’s attorneys’ fees from its medical reimbursement. In determining whether the use of “shall” is mandatory or directory, the test is “whether the prescribed mode of action is of the essence of the thing to be accomplished.” Var
One of the principal purposes of § 31-293 (a) is to reimburse an employer for the expenses it has incurred on account of a workers’ compensation claim, when the employee has recovered damages in a third party action in which the employer has properly intervened. J. Asselin, supra, p. 272. “The right of recovery of the employer is superior to the right of the employee to the proceeds of any third party claim. The two purposes served by this provision are: (1) [i]t insures that the party responsible for an injury will not benefit by payments made to the injured employee by the employer[; and] (2) [i]t denies the injured employee double compensation for the same injury.” Id.
In light of the purposes of § 31-293 (a), it is clear that the legislature’s use of “shall” is mandatory. Therefore, the trial court improperly bypassed the statutory method of apportionment by not awarding to Stamford the total amount of the medical bills that it paid to the plaintiff as workers’ compensation. On remand, should the plaintiff recover damages from Mayer, the trial court must first deduct from the total awarded damages the plaintiff’s expenditures, including attorneys’ fees, and then, if an excess remains, award to Stamford the total amount of medical bills, and other relevant expenditures, that it paid for the plaintiff as workers’ compensation. See Bizzoco v. Chinitz, 193 Conn. 304, 306, 476 A.2d 572 (1984); see also J. Asselin, supra, p. 276.
IV
The Plaintiff’s Cross Appeal
On her cross appeal with respect to Stamford, the plaintiff claims that the trial court improperly:
A
The plaintiff first claims that the trial court improperly granted Stamford’s motion to intervene, thereby allowing it to obtain reimbursement of compensation. We disagree.
The plaintiff’s original complaint named as defendants both Mayer and Stamford. The office of corporation counsel for Stamford represented both Mayer and the city in this action pursuant to General Statutes § 7-465.
On March 21,1989, Stamford filed a motion to intervene, claiming that it was not barred by the thirty day time limitation of § 31-293 (a) because it had never received formal statutory notice of the commencement of the action. The trial court granted the motion to
General Statutes § 31-293 (a) “specifically grants an employer who has paid workers’ compensation benefits to an employee the right to join as a party plaintiff in the employee’s actions against third party tortfeasors.” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). This right to join is contingent, however, on its timely exercise. Id., 537. “An employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 ‘[cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given, the time does not begin to run.’ ” Id.; see also Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967).
It is undisputed that the plaintiff did not give Stamford statutory notice of the third party action against Mayer. She argues, however, that because Stamford’s corporation counsel represented Mayer, that office was necessarily aware of the third party action and, therefore, the knowledge of the attorney should be imputed to the client, Stamford. Section 31-293 (a) provides for no such exception.
Section § 31-293 (a) states that “[i]f either such employee or such employer brings such action against' such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable.” The statute also provides that “[t]he bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section.” General Statutes § 31-293 (a). If filing of the action against the employer
The notice requirements are clearly set forth in § 31-293 (a), and the plaintiff did not comply with these requirements. On the facts presented here, we decline to accept the plaintiffs invitation to whittle out an exception to the notice requirements, contrary to the clear legislative intent.
B
The plaintiff next claims that the trial court improperly ruled that Stamford will no longer be obligated to pay for the plaintiffs future medical bills. In light of our recent decisions in Enquist v. General Datacom, supra, and Love v. J. P. Stevens & Co., supra, we agree.
In Enquist, we considered the effect of the 1951 amendment to § 31-293 (a) which added the following language: “ ‘The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner shall thereafter deem payable to such injured employee.’ ” Enquist v. General Datacom, supra, 23. We concluded that, although an employer remains liable for future compensation payments to an injured employee, including medical payments, the employer has the right to obtain a credit for unknown future benefits “to the extent that there are excess proceeds from a third party recovery.” Id., 25; see also Love v. J. P. Stevens & Co., supra, 49-50.
Based upon these recent interpretations of § 31-293 (a), the trial court improperly relieved Stamford of future liability for all medical payments. On remand, should the plaintiff recover another award of
The judgment is reversed and the case is remanded for a new trial.
In this opinion Peters, C. J., Covello and Hull, Js., concurred.
Louis Gurliacei, the named plaintiffs husband, also sued for loss of consortium. The trial court, Ciojfi, J., rendered a summary judgment against him on that claim because at the time of the alleged accident the plaintiff and Louis Gurliacei were not married. Louis Gurliacei pursues his claim in his cross appeal against the named defendant, George Mayer. For convenience and clarity, we refer herein to Debra Gurliacei as the plaintiff; to George Mayer as Mayer; to Louis Gurliacei by name; and to the city of Stamford, see footnote 2, infra, as Stamford.
At the initiation of the lawsuit, the plaintiff and Louis Gurliacei also named the city of Stamford as a defendant. Stamford was later eliminated as a defendant pursuant to a motion to strike, but it thereafter intervened as a plaintiff seeking reimbursement under the Workers’ Compensation Act.
General Statutes § 31-293 (a) provides: “liability op third persons TO EMPLOYER AND EMPLOYEE. LIMITATIONS ON LIABILITY OP ARCHITECTS AND ENGINEERS. LIMITATIONS ON LIABILITY OP INSURERS, SELF-INSURANCE SERVICE ORGANIZATIONS AND UNIONS RELATING TO SAFETY MATTERS, (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such
The plaintiff withdrew her individual appeal and was given permission by this court to present her claims by cross appeal.
General Statutes (Rev. to 1983) § 7-465 provides in pertinent part: “ASSUMPTION OF LIABILITY FOR DAMAGE CAUSED BY EMPLOYEES. JOINT LIABILITY OF MUNICIPALITIES IN DISTRICT DEPARTMENT OF HEALTH OR regional planning agency, (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. This section shall not apply to physical injury to a person caused by an employee to a fellow employee while
General Statutes § 52-584 provides: “limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”
Mayer also claims that the trial court improperly denied his motion for summary judgment. Without reaching the merits of this claim, we disagree.
We now adopt the Appellate Court’s rationale that, absent exceptional circumstances, “a denial of a motion for summary judgment is not appeal-able where a full trial on the merits produces a verdict against the moving party.” Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988). The basis of this policy is that “even if the motion is improperly denied, the error is not reversible; the result has merged into the subsequent decision on the merits. To hold otherwise would be ‘to depart from this sound policy which allows a decision based on more evidence to preclude review of a decision made on less evidence.’ ” Bristol v. Vogelsonger, 21 Conn. App. 600, 601 n.2, 575 A.2d 252 (1990), quoting Greengarden v. Kuhn, supra; see also Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 181-82 n.3, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). From a review of the record, we conclude that this case does not represent an exceptional circumstance that would justify reviewing on appeal a denial of a motion for summary judgment.
See footnote 5, supra.
See footnote 6, supra.
The plaintiffs claimed, more specifically, that the defendant “intentionally and/or negligently caused the death of the plaintiffs’ decedents by ordering them to enter an underground area, which [the defendant] knew to be without adequate ventilation, contained toxic fumes, lacked oxygen, and lacked proper lighting, gauges and other safety equipment.” Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988).
The trial court instructed the jury, on the second count of the complaint, as follows: “The second count alleges that the defendant was negligent in causing the claimed accident and the resulting injuries. Negligence does not involve an intent on the part of the defendant to injure the plaintiff but rather only a finding that, while operating this motor vehicle in this Glenbrook Road, Ely Place area, the defendant failed to act with due and reasonable care under all the circumstances. Failed to act with due and reasonable care. Before, however, we reach the question of negligence,
“All right. Now, what does acting within or being engaged in the scope of one’s employment mean? It does not refer simply to-being on duty, but rather it refers to an employee engaging in the immediate and actual performance of a public duty imposed by law at the time of the incident' in question. Engaging in—to repeat—the immediate and actual performance of a public duty imposed by law at the time of the incident in question. If the defendant was capable of being so engaged and was in fact so engaged then the plaintiff is not entitled to recover on this, the second count of her complaint. If, on the other hand, the defendant was not capable of being engaged in the immediate and actual performance of a public duty imposed by law at that time and place or that he was not in fact so engaged, then the plaintiff is entitled to recover.
“To put it in a slightly different fashion, the question for you to decide is whether the defendant was both capable of and in fact actively engaged in some service for his employer, the Stamford Police Department. Was he acting, that is, in the course of his employment? Now, as you know, the defendant claims he was actively engaged in the surveillance of a gold Cadillac being operated by a known criminal. Was he capable or incapable of being so engaged? Or, on the other hand, was he simply driving home after a social evening or to some other social location? If you conclude that the defendant was not capable of being engaged in or was not, in fact, engaged in the scope of his employment at that time and place, you would then go. on to answer question four in our interrogatories which pertains to this concept of negligence.” (Emphasis added.)
Although the plaintiff also claimed that Mayer acted wilfully and wantonly; see General Statutes § 7-465; the jury specifically rejected that claim in a response to an interrogatory. Therefore, that issue is not before us on this appeal.
The trial court properly noted that the 1985 amendment to General Statutes § 7-465; Public Acts 1985, No. 85-521, § 1; which allowed suits between fellow employees where the action is based on “the fellow employee’s negligence in the operation of a motor vehicle,” constituted a substantive amendment that could not be retroactively applied. Because the plaintiffs alleged accident occurred on September 2,1983, the motor vehicle exception was inapplicable.
The test of “scope of employment” as applied by the trial court to include a “capability” element will impact on municipal indemnification. General Statutes (Rev. to 1983) § 7-465 provides that the municipality will indemnify a municipal employee for “all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was . . . within the scope of his employment, and . . . not the result of any wilful or wanton act of such employee in the discharge of such duty.” (Emphasis added.) Additionally, the test of “scope of employment” as applied by the trial court to include a “capability” element will impact on the duty of a municipality to provide workers’ compensation benefits for municipal employees. General Statutes § 7-465 specifically refers to the Workers’ Compensation Act, chapter 568, as applying in suits between fellow employees engaged “in the scope of their employment for such municipality.” (Emphasis added.)
Traditionally, the issue of intoxication arises where an employer denies workers’ compensation benefits to an employee or his representative by claiming that the injury occurred because the employee was intoxicated. See generally 1A A. Larson, Workmen’s Compensation Law § 34.21. In this case, although Mayer did not claim workers’ compensation, the “scope of employment” test is nonetheless applicable because the plaintiff attempted to prove that Mayer’s intoxication rendered him outside that scope.
General Statutes § 31-284 (a) provides that an employer will not be required to pay compensation where “the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.” That statute cannot reasonably be read, however, to require the two-prong capability test employed by the trial court in this case.
Although we have determined that a new trial is necessary, we consider this claim because it is likely to arise on the retrial.
See Part III A, infra, where we conclude that the collective bargaining agreement provided the plaintiff with two thirds of her salary as temporary total disability compensation and the remaining one third as contractual excess.
For purposes of this claim, the true tax ramifications of the plaintiffs salary payments are irrelevant. Because of the manner in which she treated the income for tax purposes, however, the evidence was relevant because it demonstrated that the plaintiff was receiving more net income from the collective bargaining agreement than she would have received had she been working.
The trial court stated that it is the “[s]tate of the law then that it can’t be introduced whether it’s statute or case law.” Later, the court added that “it seems to me that if a person has missed time at work and is telling the jury about that they missed time at work, the fact that they have been paid for it cannot be admitted into evidence because of the collateral source rule and that doesn’t change because (a) the person is not being penalized by only getting 70% of their salary nor does it change by (b) the fact that the person hasn’t returned to work because of some kind of motivational theory that you’re putting forth.” Finally, after the parties researched the issue, the court stated that “I don’t see—let me put it this way—none of the Connecticut cases that I saw substantial—I’m not saying that there might be cases in other jurisdiction—but I found nothing in our Connecticut cases and in my mind it was fortified by the fact that, under our new tort reform act, we have specific statutes .... Specific statutes talking about collateral sources and defining them.”
Mayer argued that “I’m not asking the collateral source rule be changed for purposes of getting credits and that’s what the whole idea of the collateral source rule is. I am suggesting that the collateral source rule a rule of evidence, that the question of motivation and the like is a very material and relevant issue but that it is a public policy that usually keeps out collateral sources. Now we are dealing with balancing the probative value of evidence going to motive and the like against the perceived public policy interest that’s encompassed in the collateral source rule. It’s not a question of doing away with the collateral source rule.” Although the court replied that “I’ve done all the balancing that I can,” the entire discussion demonstrates that the court did not believe, absent specific Connecticut authority, that it had the discretion to allow the offered evidence.
We note that our statutes concerning the collateral source rule; General Statutes §§ 52-225a through 52-225e; do not address this issue.
Other jurisdictions have applied different standards in dealing with exceptions to the collateral source rule. See generally comment, “A Sur
The plaintiffs reliance on Eichel v. New York R. Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963), is misplaced. In Eichel, the majority of the United States Supreme Court held that it was proper for the trial court to refuse to allow evidence of receipt of a disability pension under the Railroad Retirement Act for the purpose of showing a motive for not returning to work. Id., 255-56. The court stated that “the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act of1937, 50 Stat. 309, as amended, 45 U.S.C. § 228b (a) 4, were considered as evidence of malingering by an employee asserting a claim under the Federal Employers’ Liability Act. ” (Emphasis added.) Id., 255. Eichel has been limited, however, to the federal statutory scheme of the Railroad Retirement Act. See DeMedeiros v. Koehring Co., 709 F.2d 734, 741 (1st Cir. 1983) (“[i]n diversity negligence cases, this circuit has refused to extend the holding in Eichel beyond its federal statutory context”).
Although Mayer excepted to the ruling of the trial court, he failed to make an offer of proof. Therefore, Mayer’s claim that his questions on redirect were to “emphasize the practical, as opposed to theoretical, knowledge of the witness” is unsupported by the record. Generally, we will not review a claim absent an offer of proof as to the purpose or content of the testimony that the party sought to introduce; State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979); because, absent an indication of that purpose or content, there is an inadequate record to rule on the claim. State v. Conrod, supra. Furthermore, ordinarily we would not consider a claim on appeal that is not likely to arise on a retrial that, as in this case, we have already ordered on other grounds. In this instance, however, we will review Mayer’s claim in order to clarify the law in this developing area of juror questioning.
Louis Gurliacci also argues that denial of his loss of consortium claim would be: (1) “making an arbitrary distinction between those parties married before and after an injury”; (2) infringing on his constitutional rights of privacy pursuant to the fifth and fourteenth amendments to the United States Constitution and article first, § 20, of the Connecticut constitution; and (3) impairing his “fundamental right to recover damages for injuries from tortious acts” pursuant to article first, § 10, of the Connecticut constitution. These claims are meritless. He offers neither authority nor reasoning in support of such purported constitutional deprivations, nor have we been able to discover or discern any.
See, e.g., Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 553, 562 A.2d 1100 (1989) (“[t]he term ‘consortium’ is usually defined as encompassing the services and/or the financial support of a spouse, ‘and the variety of intangible relations which exist between spouses living together in marriage’ ”); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987) (“[l]oss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse”); Ladd v. Douglas Trucking Co., 203 Conn. 187, 189, 523 A.2d 1301 (1987) (“ ‘an injury to one’s spouse may turn a happily married man or woman into a life-long nurse and deprive him or her of an opportunity of having children or raising a family’ ”).
See, e.g., Schroeder v. Boeing Commercial Airplane Co., 712 F. Sup. 39, 43 (D.N.J. 1989) (“[hjaving conducted an exhaustive discussion of state cases and New Jersey State law, we believe that the New Jersey Supreme Court will reassert the generally accepted principle that a valid marriage is a prerequisite to establish a claim for loss of consortium”); Weaver v. G.D. Searle & Co., 558 F. Sup. 720, 724 (N.D. Ala. 1983) (“[i]n light of the legal history of the action for loss of consortium, the public policy in favor of ceremonial marriage, and the overwhelming, persuasive case authority from other jurisdictions, this Court concludes that a valid marriage at the time of injury is a necessary and indispensable element in any cause of action for loss of consortium in Alabama”); Chiesa v. Rowe, 486 F. Sup. 236, 238-39 (W.D. Mich. 1980) (“[w]hen a fiancee decides to go forward with the marriage after injury and disability strikes her betrothed she must recognize the extent of assistance and comfort that he will be able to provide and will in turn require . . . [i]n doing so she waives her rights to another level or form of conjugal fellowship which might have been obtained had she married another. In addition policy dictates that there be some limitation to this form of liability”); Briggs v. Butterfield, 104 App. Div. 2d 626, 479 N.Y.S.2d 758 (1984) (“in virtually every jurisdiction of the United States,
Other reasons often stated in support of the requirement of an existing marital relationship at the time of the injury are: (1) an individual should not be permitted to marry a cause of action; Wagner v. International Harvester Co., 455 F. Sup. 168, 169 (D. Minn. 1978); (2) an individual marries the person in her existing state of health, and thereby assumes the risk that the resulting injury will result in a deprivation; Rademacher v. Torbensen, 257 App. Div. 91, 13 N.Y.S.2d 124 (1939); and (3) liability for injury must be delineated at some point for public policy reasons. Tong v. Jocson, 76 Cal. App. 3d 603, 605, 142 Cal. Rptr. 726 (1977); see generally Schroeder v. Boeing Commercial Airplane Co., 712 F. Sup. 39, 41-42 (D.N.J. 1989).
Although we are reversing and remanding the tort action, we address these claims of Stamford and the plaintiff, which primarily concern workers’ compensation, because they may recur on the retrial. We discuss here the plaintiff’s claim on her cross appeal because it is closely related to Stamford’s claims on its appeal. In part IV, infra, we discuss the plaintiffs remaining cross appeal claims.
We need not discuss Stamford’s claim of commingling of legal positions in light of our conclusion that the trial court improperly apportioned the damages.
See footnote 3, supra, for full text.
The collective bargaining agreement between Stamford and the Stamford police association provided, in pertinent part: “B. The City acknowledges that all employees are subject to the Workmen’s Compensation Law of the State of Connecticut and are entitled to all benefits thereunder, including lump sum payments, except that in lieu of the limited weekly wage payments provided for by said law, employees shall receive the sick leave benefits in effect under the presently existing sick leave plan, while still on active duty. Sick leave shall be based on regular weekly salary.”
General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . and such compensation shall not continue longer than the period of total incapacity.”
The Missouri Court of Appeals, in addressing whether a provision in a collective bargaining agreement providing that an injured employee would receive benefits greater than that provided by workers’ compensation alone, stated that “[w]e believe that when the statute states that a credit is allowed when a payment is made on account of the injury it contemplates that the injury would be the only reason for the payment. That is not true here as the payment would not have been made were it not for the agreement. It took both the injury and the agreement to entitle plaintiff to the payment.” Evans v. Missouri Utilities Co., 671 S.W.2d 812, 816 (Mo. App. 1984).
In Gorski v. Kearny, 236 N.J. Super. 213, 215, 565 A.2d 415 (1989), the Appellate Division of the New Jersey Superior Court addressed an analogous claim by an injured police officer who was receiving full salary pursuant to a collective bargaining agreement while on sick leave. The court held that “[ajlthough respondent was obligated under its collective bargaining agreement with petitioner’s representative to pay full salary to an employee injured in a work related accident, respondent was also statutorily obligated, regardless of the terms of the collective bargaining agreement, to pay temporary disability benefits to an employee injured in the course of employment. Consequently, the only benefit petitioner received from the collective bargaining agreement was the portion of his salary which exceeded the temporary disability payments to which he was statutorily entitled.” Id.
The trial court based its conclusion that the entire salary was paid solely pursuant to the collective bargaining agreement in part on the contractual
The court also relied on the facts that: (1) the checks sent to the plaintiff were drawn from the police department budget rather than from a separate workers’ compensation fund, and were identical to checks sent to other police officers, not indicating that two thirds represented workers’ compensation payments; (2) Stamford deducted a full federal income tax deduction from the checks; and (3) the W-2 form that it provided did not reflect that any amount was workers’ compensation. Although these facts, considered in isolation of the Workers’ Compensation Act, may have justified the conclusion reached by the trial court, such a determination, when considered in conjunction with the policy prohibiting double recovery, is unsupportable.
“Generally, temporary incapacity benefits are payable only until the injured employee has reached maximum medical improvement. Once maximum improvement is reached, a permanent award becomes due, if warranted, and temporary benefits should cease.” J. Asselin, Connecticut Worker’s Compensation Practice Manual (1985) p. 118.
Stamford argues that the evidence at trial established that the plaintiff reached maximum medical improvement on March 10, 1988, and the plaintiff argues that the evidence indicated that she reached maximum medical improvement on August 6, 1986.
General Statutes § 31-308 provides in pertinent part: “compensation for partial incapacity, (a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there
“(b) With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than fifty dollars weekly . . . (13) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks. If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion.”
We discuss, infra, the trial court’s incorrect method of apportionment under General Statutes § 31-293, whereby it deducted from reimbursements to Stamford of medical payments one third of that sum for the plaintiff’s attorneys’ fees. Although the parties have not specifically raised the issue in this appeal, we note that insofar as the trial court’s award of a credit for any specific award in the future also ordered a deduction of one third for contribution to the plaintiff’s attorneys’ fees, it was incorrect.
The Stamford administrators of its workers’ compensation plan paid medical bills for the plaintiff in the sum of $18,741.38.
General Statutes § 7-465 provides in pertinent part: “In any such action [pursuant to § 7-465] the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such employee. No mention of any kind shall be made of such statement by any counsel during the trial of such action.”
Dissenting Opinion
dissenting in part. I agree with Parts I and II of the majority opinion. The views that I expressed in my dissent in Enquist v. General Datacom, 218 Conn. 19, 27, 587 A.2d 1029 (1991), and in Love v. J. P. Stevens & Co., 218 Conn. 46, 51, 587 A.2d 1042 (1991), however, represent my continuing objection to the majority’s position reflected in Part III of the majority opinion, which continues to adhere to, in my view, a misconstruction of General Statutes § 31-293 (a). Accordingly, I dissent.
