243 Conn. 17 | Conn. | 1997
Lead Opinion
Opinion
The dispositive issues in this appeal are whether: (1) underinsured motorist benefits fall within the common-law collateral source rule; and (2) the medical malpractice allegations in the complaint are sufficient to state a claim for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff, Susan M. Haynes, as administratrix of the estate of her mother, the decedent Barbara S. Freeman, brought an action against the defendants, Yale-New Haven Hospital (Yale-New Haven) and Charles F. McKhann, a surgeon, alleging medical malpractice and CUTPA violations.
The record reveals the following facts. The plaintiffs decedent was employed as a rural letter carrier for the United States postal service. On May 14, 1986, while in the course of her duties as a postal worker, the decedent was seriously injured when her vehicle was struck head-on by a vehicle driven by Alan G. Perrier. An ambulance transported the decedent to Yale-New Haven for emergency medical treatment. She was admitted to Yale-New Haven’s emergency department at approximately 12:40 p.m. and began receiving emergency medical care for a fractured left leg and a fractured pelvis. At approximately 2:15 p.m., after being in the care of the hospital for approximately one and one-half hours, the emergency room doctors noticed that the decedent was experiencing “ ‘an expanding abdominal girth.’ ” Upon this discovery, the decedent was transported to the operating room for emergency exploratory surgery. At approximately 2:30 p.m., McKhann began the surgery and, upon opening her abdomen, he discovered large amounts of blood as a result of the laceration of her spleen, which he then removed. During the surgery, however, the decedent’s circulation failed and she went into cardiac arrest. McKhann was unable to resuscitate her heart and the decedent was pronounced dead at 3:41 p.m.
The plaintiff first brought an action against Perrier, the driver of the vehicle that had struck the decedent’s vehicle, for wrongful death and other compensatory damages. The plaintiff received $20,000 from Perrier’s insurer, an amount that represented the limit of his automobile liability insurance policy. After exhausting Perrier’s policy coverage, the plaintiff then pursued a claim against Covenant Insurance Company (Covenant), the decedent’s automobile insurance carrier,
The plaintiff then commenced this action against the defendants. In the medical malpractice count, the plaintiff sought damages against both defendants on the grounds that they allegedly had failed to meet the requisite standard of care in applying emergency room care to the decedent, that the emergency department was inadequately staffed, and that the existing staff was inadequately trained and supported. In the CUTPA count, against Yale-New Haven only, the plaintiff alleged that Yale-New Haven had engaged in unfair and deceptive trade practices because, although the hospital was certified as a major trauma center, it had failed to meet the requisite standards of care for such a center for essentially the same reasons stated in the medical malpractice count. The defendants filed a special
The trial court granted the defendants’ motion for summary judgment on the medical malpractice count because it concluded that as a result of the plaintiffs having been fully compensated for the death of her decedent, she was precluded from pursuing this claim against the defendants by the common-law rule barring a double recovery for the same injury. In addition, the trial court rendered summary judgment on the CUTPA count, based upon the reasoning that a malpractice claim cannot be recast as a CUTPA claim. This appeal followed.
I
We first address the plaintiffs argument that underinsured motorist benefits, because of their contractual nature, are not within the ambit of the common-law rule precluding double recovery for the same harm,
This case forces us to confront the tension between two competing principles. The first is that a tortfeasor should not be rewarded by collateral sources that have benefited an injured party. This principle recognizes the social value in making the tortfeasor pay the injured party even for already “compensated” losses in order to prevent a windfall to the tortfeasor; 2 S. Speiser, C. Krause & A. Gans, American Law of Torts (1985 & Sup. 1997) § 8.16, p. 526; and to fulfill the general tort policy of deterring similar tortfeasors from wrongful conduct. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 4, pp. 25-26. The second, competing principle is that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a
The plaintiff contends that this conflict is resolved by the contractual basis of underinsured motorist payments. She argues that, because Covenant’s liability was based entirely upon its contract with the decedent, all payments made pursuant to the underinsured motorist insurance policy should be viewed as purely contractual in nature. Thus, according to the plaintiff, the collateral source rule should apply.
We are not persuaded that payments made pursuant to an underinsured motorist contract can be so easily classified. In our view, underinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages. Whether in any particular case underinsured motorist benefits should be treated as are other types of insurance must depend on a case-by-case analysis of the underlying purpose and the principles that apply to such benefits.
It is true that Covenant would have had no liability to the plaintiffs decedent but for the existence of the insurance contract, and that, generally speaking, an action by an insured against an underinsured motorist carrier is in form “an action in contract.” Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997). We do not dispute, moreover, that the collateral source rule would apply to various other contractual insurance payments, such as life, disability, or medical insurance. Underinsured motorist insurance, however, is unlike those traditional types of insurance, all of which pay upon proof of the occurrence of the
Thus, underinsured motorist benefits, although contractual in nature, operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor. We recognize that an underinsured motorist carrier “is not the alter ego of the tortfeasor and . . . they do not share the same legal [status].” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997). Mazziotti, however, dealt with the question of whether an insured’s underinsured motorist insurance carrier and a third party tortfeasor should be deemed in privity with each other for purposes of the doctrine of collateral estoppel. Id., 810-19. The fact that the carrier and the tortfeasor do not share a complete legal identity, and thus are not in privity with each other, does not automatically resolve the narrower question of how payments made pursuant to an underinsured motorist policy should be treated.
We do not mean to imply that claims for underinsured motorist payments must be viewed solely as sounding in tort, and not in contract. Neither classification is
We begin with the fundamental principle that the purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured. “The public policy established by the [under]insured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the [under]insured motorist had maintained [an adequate] policy of liability insurance.” (Internal quotation marks omitted.)
Furthermore, the plaintiffs putative right to recover against the defendants in the present case, for the loss that her decedent’s underinsured motorist carrier has already paid, depends solely on the order of litigation in this case. This point can be illustrated by a simple
The only difference between the actual facts and the aforementioned hypothetical situation is the order of litigation — that is, whether the plaintiff brings an action against the defendants, before or after she recovers pursuant to her decedent’s underinsured motorist policy. Under the plaintiff’s argument, however, when she pursues her underinsured motorist policy first, as she in fact did, she can recover, not only the $650,000 that she received from her decedent’s underinsured motorist carrier, but an additional amount for the same damages when she then brings an action against the defendants. Had the exact same claims been presented in a different order, however — namely, an action against the defendants first, rather than second — she agrees that she could recover only a total of $650,000. Stating the plaintiff’s position in this manner demonstrates why it must fail, for it would be bizarre to say that the law permits
Finally, the equities do not weigh substantially in favor of the plaintiffs position. Precluding the plaintiff from obtaining double recovery does not deprive the decedent of the benefit for which she paid her underinsured motorist premium, namely, a guaranteed recovery of her wrongful death damages, subject to contractual limits, despite the fact that she was hit by an underinsured motorist, and whether there was a joint tortfeasor who could also be held liable. The only thing she is deprived of is the opportunity to recover more than she paid for. Moreover, although we acknowledge the general notion that a defendant, if indeed negligent, should be held accountable, our conclusion does not create an inappropriate windfall for the defendants. It is no more of a windfall to the defendants in this case to bar recoveiy against them than it was a windfall to the nightclub in Gionfriddo to bar recovery against it. Whenever the principle against double recovery is applied as between various tortfeasors, or tortfeasor surrogates, one of the parties escapes at least some degree of liability. In such cases, however, the policy behind the fundamental principle barring double recovery; see footnote 6 of this opinion; simply is deemed to outweigh the policy behind the collateral source rule. See footnote 7 of this opinion. Such a consequence is,
II
We next address the issue of whether the plaintiffs CUTPA count against Yale-New Haven sufficiently stated a claim pursuant to § 42-110a et seq.
We previously have concluded “that the provision of medical services falls within CUTPA’s definition of trade or commerce as ‘the distribution of any services . . . .’ General Statutes § 42-110a (4).” Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). Fink,
The trial court in the present case, relying on A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990), held that negligence could not be a basis for a CUTPA claim. The trial court then determined that the allegations were based solely on negligence and rendered summary judgment. We agree with the trial court that the plaintiffs CUTPA count does not allege a sufficient cause of action, but for different reasons.
In A-G Foods, Inc., we held that “the first prong [of the ‘cigarette rule’], standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence.” Id.
We conclude that professional negligence — that is, malpractice — does not fall under CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA. “Although an attorney is not exempt from CUTPA; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); we made it clear in Heslin that we were not deciding
Other jurisdictions have reached a similar result with respect to the medical profession. The Washington Court of Appeals has held that although the entrepreneurial or commercial aspects of the practice of medicine are covered as “trade or commerce” under that state’s consumer protection act, violations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence. See Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (holding that claims that relate to “actual competence of the medical practitioner” are not recognized under state’s consumer protection act, but claims implicating entrepreneurial aspects of practice of medicine may be sufficient), rev. denied, 107 Wash. 2d 1032 (1987); see also Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) (applying Washington law, Court of Appeals concluded that “Washington has recognized that both the practice of law and medicine may give rise to [consumer protection act] claims. . . . These may arise, however, only when the actions at issue are chiefly concerned with ‘entrepreneurial’ aspects of practice, such as the solicitation of business and billing
Just recently, the Michigan Court of Appeals addressed this same issue in Nelson v. Ho, 222 Mich. App. 74, 564 N.W.2d 482 (1997). In Nelson, the court held that “it would be improper to view the practice of medicine as interchangeable with other commercial endeavors and apply to it concepts that originated in other areas. . . .
We find these decisions persuasive, and conclude that their reasoning is equally applicable to CUTPA claims. We appreciate, however, that “[i]t would be a
The plaintiff alleged that Yale-New Haven was certified as a major trauma center and held itself out as such, but failed to staff the emergency department adequately, and that it failed to train and support adequately its existing staff to meet the applicable standards for a major trauma center. The plaintiff further alleged that Yale-New Haven also failed, with respect to emergency room procedures, to meet the standards for a major trauma center.
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and PALMER and PETERS, Js., concurred.
The plaintiff also brought claims for wrongful retention of moneys paid for medical services rendered on behalf of the decedent by a federal agency, and for breach of an implied contract, both of which were subsequently withdrawn.
The plaintiff appealed from the trial court’s granting of the motion for summary judgment to the Appellate Court, and we transferred the appeal to this court, pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). After oral argument, this court ordered reargument en banc, and the filing of supplemental briefs limited to the following issue: “Under the circumstances of this case, should the $650,000 received by the plaintiff for her decedent’s death be treated as: (1) a payment by a collateral source that does not bar the plaintiffs suit against the defendant Yale-New Haven Hospital; or (2) full compensation for the loss of the decedent’s life that does bar the plaintiffs suit against the defendant Yale-New Haven Hospital?”
Throughout, this discussion, all references to “underinsured” motorist coverage encompass uninsured motorist coverage as well.
Accordingly, because the plaintiff and Covenant stipulated before the arbitration panel that “the only issue is just damages for [the decedent’s] death, the loss of earning capacity, conscious pain and suffering, [and] loss of enjoyment of life’s activities,” for purposes of this case the $650,000 award must be considered the full legal value of the damages. The plaintiff does not dispute this fact. Moreover, as a rule, the decision of an arbitration panel is binding as res judicata in a subsequent judicial proceeding. See, e.g., Fink v. Golenbock, 238 Conn. 183, 195, 680 A.2d 1243 (1996).
The rule precluding double recovery is a “simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury. . . . Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. . . . The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. . . . Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” (Citations omitted; internal quotation marks omitted.) Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71-73, 557 A.2d 540 (1989).
“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. . . . The basis of [this] rule is that a wrongdoer shall not benefit from a windfall
We acknowledge that many jurisdictions agree with the plaintiff that underinsured motorist benefits should be treated as a collateral source that does not affect the insured’s right of recovery against a different tortfeasor. See, e.g., International Sales-Rentals Leasing Co. v. Nearhoof, 263 So. 2d 569, 571 (Fla. 1972) (joint tortfeasor not entitled to setoff equal to amount of recovery injured plaintiff received from his uninsured motorist coverage carrier); Respess v. Carter, 585 So. 2d 987, 988-90 (Fla. App. 1991) (same); State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, 226 Ga. 310, 311-12, 174 S.E.2d 920 (1970) (same). For the reasons expressed herein, however, we agree with those cases, though fewer in number, that hold to the contrary. See, e.g., Petrella v. Kashlan, 826 F.2d 1340, 1344 (3d Cir. 1987) (under New Jersey law, recovery on underinsured motorist coverage should be regarded as same as recovery from tortfeasor, because both dependent on there being underlying tort); Cooper v. Aplin, 523 So. 2d 339 (Ala. 1988) (satisfaction of litigated judgment against uninsured motorist carrier prevents subsequent action against other tortfeasors); Waite v. Godfrey, 106 Cal. App. 3d 760, 773, 163 Cal. Rptr. 881 (1980) (uninsured motorist benefits not collateral source).
The plaintiff relies upon Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 370 A.2d 1006 (1976), to support her argument that underinsured motorist payments are purely contractual in nature, and thus that the collateral source rule should apply. In Pecker, we held that “an insurer making payment under the [underjinsured motorist coverage provisions of its policy makes that payment ‘on behalf of the insured, not the uninsured motorist.” Id., 452; see also Regs., Conn. State Agencies § 38a-334-6 (a). We do not dispute that, because they are based on the insured’s contract with her underinsured carrier, the benefits are paid on her behalf. This fact, however, in and of itself, is not dispositive of the manner in which we should treat such payments in the context of the present case. Even if they are made “on behalf of’ the insured, underinsured motorist payments are still exclusively premised upon a third party’s tort liability. Pecker, therefore, does not resolve the fundamental tension caused by the hybrid nature of underinsured motorist coverage.
Indeed, the peculiar hybrid nature of underinsured motorist insurance limits the utility of broad statements of policy, such as those found in the Restatement of Judgments and the Restatement of Torts. For example, the Restatement of Judgments notes that, with regard to the tension between the collateral source rule and the principle against double recovery for the same loss, “[wjhich one of those concepts governs depends on whether the person providing the payments in question is assimilated to a co-obligor of the judgment debtor or to a casualty insurer of the injured party. ” (Emphasis added.) 2 Restatement (Second), Judgments § 50, comment (e) (1982). As previously observed, however, underinsured motorist coverage is unlike casualty insurance, which pays for the loss irrespective of who is legally liable for the loss.
Similarly, the Restatement of Torts directs that “[p]ayments made by one who is not himself liable as a joint tortfeasor will go to diminish the claim of the injured person against others responsible for the same harm if they are made in compensation of that claim, as distinguished from payments from collateral sources such as insurance, sick benefits, donated medical or nursing services, voluntary continuance of wages by an employer, and the like.” (Emphasis added.) 4 Restatement (Second), Torts § 885 (3), comment (f) (1979). The reference to “insurance,” however, does not provide real guidance for the question before us. Although life and medical insurance, for example, are likely contemplated by this reference, they are types of insurance that, uiilike underinsured motorist coverage, do not depend on proof of an underlying tort and do not act as a surrogate for the tortfeasor’s liability coverage. Indeed, because underinsured motorist payments do act as a surrogate for tort liability, they can reasonably be seen as being made
Under the plaintiffs allegations against the defendants in the present case, it is clear that the underinsured motorist tortfeasor himself and the defendants were joint tortfeasors because the decedent did not die solely from her injuries from the accident, but also because of the defendants’ alleged negligence. Analytically, in terms of basic tort principles, the underinsured motorist’s conduct was a proximate cause of the death, and another, concurrent proximate cause was the defendants’ alleged negligence. The underinsured motorist carrier was liable for the entire wrongful death damages of $650,000, reduced by the $20,000 collected from the tortfeasor’s liability carrier, only because the defendants’ subsequent negligence was not, under the plaintiffs allegations, an independent, intervening cause that cut off the underinsured motorist’s negligence.
For convenience, we carry the damages for the decedent’s death in this case over into our hypothetical.
At oral argument, the plaintiff attempted to avoid this double recovery problem by reference to § 38a-334-6 (e) of the Regulations of Connecticut State Agencies, which provides: “Recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s
The problem with the plaintiffs position is that, as the plaintiff acknowledged at oral argument, this court has never decided whether this regulation permits an underinsured motorist carrier that has paid benefits to its insured, in a case such as this, to create in its policy a right over, not only against the underinsured motorist whose conduct was the risk that was insured against, but against a different, joint tortfeasor. Cf. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 672 A.2d 939 (1996). We need not decide that question until a case presents it, which the present case does not. The plaintiff has nowhere alleged, nor is there any indication in the record, that such a subrogation or reimbursement clause was contained in the decedent’s contract with Covenant. Accordingly, whether the existence of such a clause could have obviated the present double recovery problem is not before the court in this case. Our conclusion, however, that, in the absence of such a clause, there is a double recovery problem does not bear on the effect of the regulation when such a clause is present. If there were such a clause, however, and if it did operate against the defendants in this case as the plaintiff suggests, the net effect would still be that the plaintiff would recover nothing furl,her, because she would be required to hold the proceeds of her action against the defendants “in trust” for Covenant.
In Gionfriddo v. Gartenhaus Cafe, supra, 211 Conn. 71-72, we relied on the principle, recognized since at least 1863, that “[t]he possible rendition of multiple judgments does not . . . defeat the proposition that a litigant may recover just damages only once.” Indeed, in Gionfriddo we recognized that the principle against double recovery for the same loss applies in both tort and contract law. See id., 74 n.9. To the extent, therefore, that the present case involves both contract law — the contract of underinsured motorist coverage — and tort law — the action against the defendants — the same principle against double recovery should apply.
Of course, one could also resolve the order of litigation problem by, instead of precluding double recovery whatever the order of litigation, as we choose to do, allowing the plaintiff to maintain her additional claim against the underinsured motorist carrier even after receiving full compensation from the two tortfeasors. The plaintiff does not, however, argue for such a rule. In any event, we believe that that would be an even more bizarre result than what the plaintiff is seeking.
General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
General Statutes § 42-110g (a) provides: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public irvjury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”
We review this issue, as the plaintiff and the defendants did in their arguments before this court, as if the motion for summary judgment were a motion to strike testing the legal sufficiency of the allegations of the CUTPA claim. Accordingly, we decide the issue raised by the parties as if the allegations of fact were true.
“In determining whether certain acts constitute a violation of [CUTPA], we have adopted the criteria set out in the cigarette rule by the federal trade commission ... (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].” (Emphasis added; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).
We have previously noted that “[a]U three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove
In Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 590, 593, the underlying claim was negligent misrepresentation and the plaintiffs were found to have been 10 percent contributorily negligent.
In Nelson, the Michigan Court of Appeals relied on statements made by the United States Supreme Court in Goldfarb v. Virginia State Bar, 421 U.S. 773, 786 n.15, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975). Specifically, the Court of Appeals stated: “This theoretical distinction [between learned professions and the practice of a trade] was specifically addressed in Goldfarb . . . where the United States Supreme Court considered the issue of whether a minimum-fee schedule for lawyers enforced by the Virginia State Bar constituted price-fixing in violation of the Sherman Act.... The state bar argued that it was exempt from the Sherman Act because the practice of law was a ‘learned profession,’ not ‘trade or commerce.’ The . . . Court stated that while ‘it would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas,’ [id., 788 n. 17] . . . ‘[i]t is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect.’ [Id., 788].” (Citations omit
The crux of the plaintiffs allegations in the CUTPA count are as follows: “In order best to qualify to treat such emergency and trauma patients and to draw and receive them, defendant Hospital has sought classification and holds and held itself out as a major trauma center. Nevertheless, by virtue of the inadequate, inadequately trained, and inadequately supported, staffing, and the other failures in respect of emergency and trauma patients alleged
Concurrence in Part
join, concurring
The collateral source rule is a rule that is firmly rooted in the law of Connecticut. It “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. . . . The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source. That rule is applicable ... in any tort case.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 556-57, 590 A.2d 914 (1991); see also Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 580, 271 A.2d 94 (1970);
“Simply stated, the collateral source rule will not allow a tortfeasor to reduce his damage liability resulting from harm caused to another by benefits the injured person received from sources other than the tortfeasor himself or one acting on the tortfeasor’s behalf. In essence, the collateral source rule is both a rule of damages and a rule of evidence. Its operation prevents a tort defendant from introducing evidence to prove that the plaintiff incurred no medical expenses
“The end result of the operation of the collateral source rule is that in some cases the tort plaintiff may recover twice or more for some elements of damages— one from the tortfeasor who caused the harm and again from any source of benefits collateral to the tortfeasor. Such multiple recovery, however, is the by-product of the rule and not a principle of the rule itself nor a policy at the foundation of the rule.” J. Kircher, “Insurer Subrogation in Wisconsin: The Good Hands (Or A Neighbor) in Another’s Shoes,” 71 Marq. L. Rev. 33, 51-52 (1987).
“The types of payments that typically come within the collateral source rule include insurance proceeds, medical benefits, and payments made by an employer pursuant to a statutory compensation scheme.” (Emphasis added.) Rametta v. Stella, 214 Conn. 484, 490, 572 A.2d 978 (1990); see also Apuzzo v. Seneco, 178 Conn. 230, 233, 423 A.2d 866 (1979) (holding that unemployment compensation benefits received by plaintiff are collateral source and that defendant could not reduce personal injury damages because of such benefits); Healy v. White, 173 Conn. 438, 448, 378 A.2d 540 (1977) (holding that free special education services provided by state to plaintiffs child, in order to cope with needs caused by personal injuries, are collateral source and that defendants could not reduce personal injury damages because of such benefits); Gorham v. Farmington Motor Inn, Inc., supra, 159 Conn. 579-80 (holding that medical expenses and wages paid pursuant to employment contract were collateral sources and that defendant could not reduce personal injury damages because of such benefits); Roth v. Chatlos, 97 Conn. 282, 287-88, 116 A. 332 (1922) (“The authorities, both numerically and in weight, agree that a defendant
The collateral source rule was embraced by the United States Supreme Court in 1854; see Propeller Monticello v. Mollison, 58 U.S. (17 How.) 68, 15 L. Ed. 68 (1854);
In my view, underinsured motorist benefits fall squarely within the purview of the collateral source rule. The majority, however, holds that the payment by the decedent’s underinsured motorist carrier, Covenant Insurance Company (Covenant), of the underinsured
I
The Restatement of Torts and the Restatement of Judgments both define the areas occupied by the concepts of collateral sources and single recovery. The Restatement (Second) of Torts sets forth the distinction between the two concepts: “Effect of Payments Made to Injured Party[.] (1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability. (2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover aU or a part of the harm for which the tortfeasor is liable.” (Emphasis added.) 4 Restatement (Second), Torts § 920A (1979).
Likewise, the Restatement (Second) of Judgments sets forth the clearly defined areas that those two concepts occupy: “One [concept] is that the injured party is entitled to be recompensed only once by persons chargeable with injuring him; the other is that the liability of a wrongdoer should not be diminished by the fact that provision against the loss had been made on behalf of the injured person. Which one of those concepts governs depends on whether the person providing the payments in question is assimilated to a co-obligor of the judgment debtor or to a casualty insurer of the injured party. The choice is clearly in favor of treating them as co-obligors when, for example, one was guilty of an intentional tort and the other only of negligence. The choice is clear, for the opposite conclusion, when
Underinsured motorist benefits clearly fall within the collateral source rule, and do not come within the single recoveiy rule, because, among other reasons, they are paid as a result of a contract between the tort victim and the underinsured motorist carrier. This is so even though the damage caused by an underinsured motorist, who is legally liable for the injury to a plaintiff, provides the measuring rod for the benefits to be paid to a plaintiff.
The payment made under an underinsured motorist policy is clearly contractual in nature and made on behalf of the insured and not the tortfeasor. Section 38a-334-6 (a) of the Regulations of Connecticut State Agencies
Although addressed in a different context, we recently decided two cases clearly designating payments made by the underinsured/uninsured motorist carrier to its insured as contractual in nature, and, therefore, concluding in both cases that those benefits were independent of the underinsured/uninsured motorist tortfeasor. In Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817, we held that payment to the insured under an underinsured motorist policy was contractual. In that case, we made clear that underinsured motorist benefits were made, not on behalf of the uninsured tortfeasor, but, rather, on behalf of the insured. We stated the following: “The obligation of [an] insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance. . . . Payments made pursuant to an uninsured motorist policy are paid on behalf of the insured, and not on behalf of the financially irresponsible motorist who has caused the insured’s injuries. . . . The insurer is not the alter ego of the tortfeasor and, although its contractual liability is premised in part on the contingency of the tortfeasor’s liability, they do not share the same legal right. The commonality of interest in proving or disproving the same facts is not enough to establish privity.” (Citations omitted; internal quotation marks omitted.) Id. This proposition from Mazziotti was later reaffirmed in Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 384-85, where the court held that an employer could not be reimbursed for workers’ compensation payments made to an employee from the proceeds of
Furthermore, the overwhelming weight of authority of the jurisdictions that have considered whether under-insured/uninsured motorist benefits are a collateral source have concluded that those benefits fall squarely within that rule. See, e.g., International Sales-Rentals Leasing Co. v. Nearhoof, 263 So. 2d 569, 571 (Fla. 1972) (holding that joint tortfeasor defendant does not get setoff equal to amount of recovery injured plaintiff receives from carrier of his uninsured motorist coverage); Respess v. Carter, 585 So. 2d 987, 988-90 (Fla. App. 1991) (“The broad issue presented is whether a tortfeasor should gain the benefit of proceeds from [uninsured motorist] coverage of an insurance policy, the premium for which was paid by the injured party. . . . We believe that the collateral source rule is dispositive of this case. ... In the instant case, the general rule — recognized but not followed by the trial court in order to prevent a windfall from flowing to the plaintiffs — is that a joint tortfeasor is not entitled to setoff for amounts paid by [an uninsured motorist] carrier to the injured party. . . . We interpret the . . . trial court’s order as adopting the premise that . . . the [uninsured motorist] carrier stands in the place of the driver/tortfeasor and his carrier just as though it were that driver who had secured the insurance and paid the premium. This is incorrect. . . . [An uninsured motorist] carrier is neither a tortfeasor nor an insurer thereof. . . . The general principle stated ... is that the collateral source rule precludes a setoff of [uninsured motorist] benefits.” [Citations omitted; internal quotation marks omitted.]); State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, 226 Ga. 310, 311, 174 S.E.2d 920 (1970) (uninsured motorist benefits “do not discharge . . . the liability of the uninsured motorist and cannot be pleaded
Indeed, the precise issue presented in this case has arisen in the context of several factual situations in which plaintiffs have sought damages from defendants even though the plaintiff already had recovered his or her damages in underinsured/uninsured motorist benefits. See, e.g., Respess v. Carter, supra, 585 So. 2d 988-90 (with facts similar to present case, where deceased insured’s survivors settled with [uninsured motorist] carrier for $405,000 in uninsured motorist benefits, and then brought action against uninsured motorist’s doctor and hospital for negligently treating and releasing uninsured motorist when he had complained of heart attack symptoms shortly before automobile accident in dispute; court held that defendants were not entitled to have setoff for benefits paid by deceased insured’s uninsured motorist carrier because benefits fell within collateral source rule); Bradley v. H.A. Manosh Corp.,
A widely recognized treatise on underinsured/uninsured motorist insurance makes clear that those benefits are wholly independent of the tortfeasor(s): “[An] [uninsured [or underinsured] motorist [payment] is not for the benefit of the tortfeasor. The disposition of an uninsured [or underinsured] motorist claim generally has no relation to or effect on the liability of the uninsured motorist (or other joint tortfeasors). One reason for this is that in most states the insurer is entitled to
My conclusion that underinsured motorist benefits is a collateral source is further buttressed by General Statutes §§ 52-225a and 52-225b,
In this case, the decedent was required by law to purchase underinsured motorist coverage in the amount of only $20,000; see General Statutes §§ 38a-336
II
I now turn to the rationales that the maj ority advances in order to justify its decision. The overarching flaw in the majority’s reasoning is that it concludes that “underinsured motorist benefits, although contractual
Indeed, we so interpreted this regulation in Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449-52, 370 A.2d 1006 (1976). InPecker, we stated, in discussing whether “other insurance” clauses were valid under another provision in the regulations, that “§ 38-175a-6 (a) [of the Regulations of Connecticut State Agencies, now § 38a-334-6 (a)] clearly indicates that an insurer making payment under the uninsured motorist coverage provisions of its policy makes that payment ‘on behalf of the insured, not the uninsured motorist.” (Emphasis added.) Id., 452. We reinforced this proposition, as I previously pointed out, in Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817, and Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 384.
The majority also reasons that the plaintiffs right to pursue her claim must fail because of what it asserts as the “fundamental principle” behind underinsured motorist insurance, namely, that the insured should not be placed in a better position than she would be in had the underinsured tortfeasor been fully insured. Simply put, the public policy behind underinsured motorist insurance does not embody this enunciated principle and the majority’s assertion appears to be an overly broad generalization from our previous case law. I agree that our case law provides that “[t]he public policy established by the uninsured motorist statute is that
Those cases merely indicate that the insured is entitled to no greater recovery from his or her underinsured motorist carrier than he or she would have been able to recover from the underinsured motorist. See Smith v. Safeco Ins. Co. of America, supra, 225 Conn. 573 (“underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor”). The plaintiff in this case is not seeking an enhanced right of recovery from her
In what it finds as further support for its position, the majority asserts that the plaintiffs right to recover depends solely on the order of litigation. The thrust of the majority’s reasoning is that if the plaintiff had first brought an action against the defendants, she would not be entitled to recover the underinsured motorist benefits. As I see it, the answer to that reasoning is that the contractual relationship between insurer and insured allows the insured to promptly seek benefits from its insured. The underinsured motorist carrier is required to make prompt payment of a claim that it finds to be clearly payable.
With respect to the order of litigation, allowing the plaintiff to recover in this case makes sense for another reason. The conclusion that underinsured motorist benefits are not a collateral source jeopardizes the subrogation rights of underinsured motorist carriers and also impermissibly interferes with the contractual relationship of the insurer and insured. An underinsured motorist carrier, based on the insurance contract or a settlement agreement, after fulfilling its duty of making prompt payment, would surely seek reimbursement of all or part of a payment if the insured later recovers from the tortfeasor. This is common practice in the world of underinsured motorist benefits. “Uninsured [or underinsured] motorist coverages usually include a provision that states the insurer has a right to be reimbursed to the extent of any payment the insurer has made.” 2 A. Widiss, supra, § 19.2, p. 110.
The underinsured motorist carrier’s assertion of its rights to reimbursement for payments made to an insured greatly reduces the prospects of double recovery.
In sum, I conclude that the underinsured motorist benefits paid to the plaintiff as a result of the decedent’s death constitute a collateral source that cannot be taken advantage of by the defendants in order to mitigate the damages for which they may be found liable. Therefore, I find that the trial court improperly rendered summary judgment on the medical malpractice count.
Accordingly, I dissent.
I concur in the result with respect to part II of the majority opinion.
Throughout this opinion, as in the majority opinion, references to “under-insured” motorist coverage are intended to encompass uninsured motorist coverage as well. Therefore, I refer only to underinsured motorist benefits, except in places where I cite to case law and authorities specifically dealing with uninsured motorist benefits.
In the arbitration proceedings against the decedent’s underinsured motorist insurance carrier, Covenant Insurance Company (Covenant), the decedent’s estate was awarded $650,000 as the full value of the decedent’s life. Because the decedent’s estate was paid $20,000 by the underinsured motorist tortfeasor (through his liability insurance), Covenant paid the balance of $630,000.1 concede that, under the single recovery rule, the $20,000 paid on behalf of the underinsured motorist tortfeasor should be deducted from any recovery obtained against the defendants in this case.
“The reason for the [collateral source] rule given by a majority of the jurisdictions which have adopted it is that a ‘windfall’ ought not to be granted to a defendant. ... If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer [being] relieved of his full responsibility for his wrongdoing.” (Citation omitted; internal quotation marks omitted.) Gorham v. Farmington Motor Inn, Inc., supra, 159 Conn. 580.
The collateral source rule “provides that benefits received by a plaintiff from a source wholly collateral to and independent of the tortfeasor will not diminish the damages otherwise recoverable.” (Internal quotation marks omitted.) Todd v. Malafronte, supra, 3 Conn. App. 23.
I am aware that there is a school of thought, that the collateral source rule should be abandoned or restricted. Those who advocate the elimination of the collateral source rule, to the extent that a tortfeasor is relieved of all liability, however, lose sight of an important aspect of the law of torts. “The ‘prophylactic’ factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 4, p. 25. In other words, with respect to the alleged facts of this case, the policy of the law must also be concerned with discouraging further conduct of hospital emergency room personnel from negligently allowing patients to bleed to death.
The United States Supreme Court first embraced what subsequently came to be known as the collateral source rule in Propeller Monticello v. Mollison, supra, 58 U.S. (17 How.) 68. In Mollison, the owner of a schooner, which sank after colliding with a steamship, received insurance proceeds from his own insurer and also brought a negligence action against the steamship for damages to the schooner and its cargo. The court held that
Section 920A, comments (a) and (b), of the Restatement (Second) of Torts (1979), highlight the distinction found in § 920A (1) and (2), providing in relevant part: ‘'a. Payments by or for defendant. If a tort defendant makes a payment toward his tort liability, it of course has the effect of reducing that liability. This is also true of payments made under an insurance policy that is maintained by the defendant, whether made under a liability provision or without regard to liability, as under a medical-payments clause. This is true also of a payment by another tortfeasor of an amount for which he is liable jointly with the defendant or even by one who is not actually liable to the plaintiff if he is seeking to extinguish or reduce the obligation. . . .
“b. Benefits from collateral sources. Payments made to or benefits conferred by other sources are known as collateral-source benefits. They do
The harm caused by the tortfeasor is the measuring rod in most instances for the amount of damages due from a collateral source. For example, the injury caused by the tortfeasor is determinative of the number of weeks that an injured victim is unable to work. Therefore, the number of weeks of unemployment compensation, a collateral source under Apuzzo v. Seneco, supra, 178 Conn. 230, is also measured by the tortfeasor’s harm.
Section 38a-334-6 of the Regulations of Connecticut State Agencies provides in pertinent part: “Minimum provision for protection against uninsured motorists
“(a) Coverage. The insurer shall, undertake to pa,y on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of a,n uninsured motor ue/ncZe because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent. . . .” (Emphasis added.)
I recognize that other courts have come to different conclusions. See, e.g., Petrella v. Kashlan, 826 F.2d 1340, 1344 (3d Cir. 1987) (applying New Jersey law); Cooper v. Alpin, 523 So. 2d 339, 340-41 (Ala. 1988); Waite v. Godfrey, 106 Cal. App. 3d 760, 769-75, 163 Cal. Rptr. 881 (1980). Nonetheless, I am unpersuaded by these decisions. Indeed, Waite has been criticized by another California Court of Appeals case, albeit from another district, and this criticism underscores the key weakness in those cases that hold that underinsured motorist benefits are not collateral sources. In Pacific Gas & Electric Co. v. Superior Court, 28 Cal. App. 4th 174, 181-82, 33 Cal. Rptr. 2d 522 (1994), a case involving a collateral source but not underinsured motorist benefits, the court discussed the decision in Waite, stating: “Waite, using suspect analysis and ill-considered dicta . . . concluded the collateral source rule did not apply.. . .By comparing its case to one where apotential defendant’s insurance would compensate the plaintiff, Waite changed the focus from who paid for the insurance to whose acts triggered coverage by the policy. The court concluded the settlement [claim] ‘represented only a payment made on the occasion of damage inflicted by another joint tortfeasor, i.e., another wrongdoer besides [the] defendants, regardless of what carrier was the source of the payment.’ . . . Waite failed to satisfactorily explain how it could suddenly disregard whose carrier was the source of the payments, the key point in determining if the source was collateral.” (Citations omitted.)
General Statutes § 52-225a provides: “Reduction in economic damages in personal injury and wrongful death actions for collateral source payments, (a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1,1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
“(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence
“(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”
General Statutes § 52-225b provides: “ ‘Collateral sources’ means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement.” (Emphasis added.)
See Public Acts 1967, No. 510, § 4.
See Public Acts 1979, No. 79-235.
See Public Acts 1985, No. 85-574, § 1.
“Number 86-338 of the 1986 Public Acts is commonly known as ‘Tort Reform I,’ and was codified at General Statutes (Rev. to 1987) §§ 52-225a through 52-225d, 52-251c and 52-572h. Number 87-227 of the 1987 Public Acts, commonly known as ‘Tort Reform II,’ revised those sections.” Childs v. Bainer, 235 Conn. 107, 120 n.9, 663 A.2d 398 (1995).
In partially abrogating the common-law rule for certain specified collateral sources, the legislature was careful to limit these credits to provide merely a reduction against the economic damages awarded to the plaintiff by the trier of fact; see General Statutes § 52-225a (a) and (b); and subject to reducing the collateral source credit for any amount that has been paid by, or on behalf of, the plaintiff or his or her family in securing the right to the collateral source benefit — i.e., insurance premiums paid by the insured are used to offset the collateral source credit. See General Statutes § 52-225a (c). In this case, the majority does not even allow a credit for the premiums that the plaintiffs decedent was obligated to pay for the underinsured motorist coverage.
General Statutes § 38a-336 provides in pertinent part: “Uninsured and underinsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. ...”
Pursuant to General Statutes § 14-112, the minimum coverage requirement “for damages by reason of personal injury to, or the death of, any one person, [is] twenty thousand dollars . . . .”
In addition, the majority considers underinsured motorist benefits “sui generis,” making much of the fact that those benefits are measured by the tort damages caused by the underinsured motorist tortfeasor. The majority uses this fact to justify treating that insurance differently from more traditional types of insurance. What this approach ignores is that, although underinsured motorist insurance is prompted by statute, the relationship between insurer and insured is contractual. To show the weakness in the majority’s reliance on the underinsured motorist label, I pose the following hypothetical. What if the decedent had the minimal amounts under her underinsured motorist endorsement to her automobile liability insurance
See footnote 10 of this opinion.
Section 38a-334-6 (a) of the regulations was adopted pursuant to the authority of General Statutes §§ 38a-336 (a) (1) and 38a-334. “Not only is the [insurance] commissioner obligated to adopt regulations with respect to the minimum provisions to be included in the policy of insurance issued in this state; see General Statutes § 38a-334; we presume that these regulations are ‘an accurate reflection of the legislative intent articulated in the statute’s more general language.’ AFSCME v. New Britain, 206 Conn. 465, 470, 538 A.2d 1022 (1988). This presumption is further underscored by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which provides lor legislative oversight through the legislative regulation review committee prior to approval of the regulations. General Statutes § 4-170." General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 211, 603 A.2d 385 (1992).
Moreover, the fact that underinsured motorist benefits are mandated by statute does not take them out of the definition of a collateral source. First, only $20,000 of coverage is required by statute. Second, we have held that statutorily mandated benefits in the form of unemployment compensation benefits are a collateral source and should not be considered by the trier of fact in awarding damages. See Apuzzo v. Seneco, supra, 178 Conn. 233; see also 4 Restatement (Second), Torts § 920A, comment (c) (1979) (payments within collateral source rule are “benefits arising by statute, as in worker[s’] compensation acts” or through “[s]ocial legislation benefits . . . [such as] [s]ocial security benefits [or] welfare payments”).
I recognize, of course, that an underinsured motorist carrier is only obligated to maJke payment “after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .’’General Statutes § 38a-336 (b).
For example, Connecticut has § 38a-334-6 (e) of the Regulations of Connecticut State Agencies, which provides: “Recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or .judgment, its insured’s right of action to recover for bodily injury from any third party." (Emphasis added.) Although we have never decided whether this regulation would apply to nonmotorists, as the defendants are in this case, I believe that the regulation still applies because it is applicable to recovery from “any third party.”
Professor Tait has noted that “[o]dd as it may seem, to reap the fruits of subrogation requires a continued recognition of the Collateral Source Rule. This is so because if the tortfeasor’s liability to the plaintiff is reduced by the amount of the collateral benefits, the plaintiff will have no cause of action for that amount to which the collateral source can be subrogated.” C. Tait, “Connecticut’s Collateral Source Rule: Stepchild of the Law of Damages,” 1 Conn. L. Rev. 93, 116 (1968). As Professor Tait aptly stated,