211 Conn. 133 | Conn. | 1989
Lead Opinion
The plaintiff, Iseli Company, had an employee named Roger Bolduc, Sr. In February, 1983, Bolduc and his son, Roger Bolduc, Jr., were injured when an explosion occurred at their Watertown home. The explosion apparently resulted from an ignition of natural gas leaking from the facilities of the defendant Connecticut Light and Power Company (CL&P). The plaintiff compensated the Bolducs for their medical expenses and paid lost wages to Roger Bolduc, Sr. This compensation was made through the plaintiffs self-insurance plan rather than through its workers’ compensation plan.
The defendant appealed to the Appellate Court from the judgment rendered on the verdict, claiming that the trial court erred: (1) by failing to instruct the jury on the legal nonviability of the plaintiffs underlying claim; (2) by denying the defendant’s motions for a directed verdict; and (3) by permitting the jury to award the plaintiff interest. Pursuant to Practice Book § 4023, we transferred the appeal to ourselves. We find no error.
I
The defendant’s first two claims concern the issue of whether the plaintiff’s forbearance from bringing an action against the defendant was valid consideration for supporting the parties’ reimbursement agreement. Before embarking on an analysis of the defendant’s specific claims, it will be useful to set forth the relevant law.
“Under, common law a cause of action for personal injuries cannot be assigned, and in the absence of a statutory provision to the contrary a right of action for personal injuries resulting from negligence is not assignable before judgment. 6 Am. Jur. 2d 220, Assignments, § 37. The rule is succinctly stated in the Restate
A
The defendant first argues that the trial court should have instructed the jury that the legal nonviability of the claim the plaintiff agreed to forgo, in exchange for the defendant’s promise of reimbursement, was a factor the jury should consider in assessing the reasonableness of the plaintiff’s belief in the validity of that claim. Dick v. Dick, supra; Berlinski v. Ovellette, supra; Warner v. Warner, supra. A review of the record demonstrates, however, that the defendant did not distinctly raise this claim at trial in accordance with the rules of practice. Practice Book § 315.
The defendant’s request to charge materially differs from its claim on appeal. The defendant now argues that the trial court erred by failing to instruct the jury that the nonviability of the claim the plaintiff agreed to forgo is one factor for the jury’s consideration in assessing the plaintiff’s reasonableness. See Dyer v. National By-Products, Inc., 380 N.W.2d 732, 735-36 (Iowa 1986). In its request to charge, however, the defendant sought an instruction that the reimbursement agreement was necessarily unenforceable because of the invalidity of the underlying claim. The requested instruction, in fact, was an inaccurate statement of the law. Dick v. Dick, supra.
Further, the defendant did not distinctly raise its present claim by taking a seasonable exception. Practice Book § 315. In accordance with the Dick standard,
Although the defendant’s exception referred to the “propriety” of the plaintiff’s underlying claim, it drew no nexus between the claim’s lack of “propriety” and the reasonableness of the plaintiff’s belief. The substance of the exception did no more than repeat the defendant’s request to charge. If we were to hold that this exception distinctly raised the defendant’s present claim, we would be requiring trial courts to read minds. Cf. Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669 (1974) (trial court bound to charge jury correctly where material and important issue is brought to court’s attention). Consequently, we do not reach the merits of the defendant’s first claim of error. Practice Book § 315.
B
The defendant next claims that the trial court erred in denying its motions for a directed verdict. It argues that the plaintiff failed to present proof on the reason
"Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).” Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). "Our review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the ‘concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . . ’ Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted.) Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986); see Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).
At trial, the plaintiff’s personnel manager, Andrew Gionta, testified that he initially contacted the defendant’s offices by telephone in February, 1983, regarding reimbursement for the medical expenses and lost wages paid to the Bolducs. Gionta discussed the plaintiff’s claim on several occasions with Warren Porter, a senior claims representative employed by the defend
On cross-examination, Gionta testified as follows:
“Q. You claim that you forebore [sic] from doing something as a result of what Mr. Porter told you? Is that correct?
“A. No, we had an agreement that we were going to be reimbursed for our medical expenses.
“Q. In exchange for?
“A. In an exchange that we would give up any claim for wages from Mr. Bolduc.
“Q. So you would forebear [sic] from making claims?
“A. Yes, that’s correct.
“Q. In exchange for CL&P’s reimbursement?
“A. That is correct.”
As noted above, at the conclusion of the trial, the trial court instructed the jury on the issue of consideration in accordance with the Dick standard. Because the jury
As the evidence recited above demonstrates, the plaintiff pursued its claim against the defendant for several months. During that period, the defendant’s representative never disparaged the validity of the plaintiff’s claim. The parties’ negotiations culminated in the agreement of June, 1983, under which the defendant would reimburse the plaintiff in exchange for the plaintiffs forbearance from asserting any claims it may have had against the defendant. The jury could have inferred from this evidence that the plaintiff had reasonable grounds for belief in the justice of the claim, and had asserted it in good faith. Id.; see, e.g., Carter v. Provo, 87 N.H. 369, 370,180 A. 258 (1935); cf. State ex rel. Marsh v. Lum, 95 Conn. 199, 203-204, 111 A. 190 (1920). Further, while we agree with the defendant that, as a general rule, the party bringing an action on a contract bears the burden of production on the issue of consideration; Dodge v. Burdell, 13 Conn. 169, 172 (1839); 29 Am. Jur. 2d, Evidence § 140; cf. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342,150 A.2d 597 (1959) (recital of consideration in written agreement is prima facie proof of consideration); we are not persuaded that the plaintiff was obligated at trial to raise the legal nonviability of the surrendered claim, and then present evidence that it had not been aware of that fact at the time it had
II
The defendant next claims that the trial court erred in permitting the jury to award the plaintiff interest. The defendant concedes that this issue was not distinctly raised in the trial court;
The trial court instructed the jury that “if you find for the Plaintiff ... it may be entitled to statutory interest of ten percent per year, if that is your judgment. Accordingly, if your verdict is for the Plaintiff, you will determine whether . . . interest should be awarded to the sum .... If that is your judgment, then calculation of interest should be done by the Court clerk after the verdict is accepted.”
The defendant’s claim is meritless. “Our cases have recognized that interest, as an element of damages, is ... a matter within the jury’s province. [Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984)]; see also Rosenblatt v. Berman, 143 Conn. 31, 36, 119 A.2d 118 (1955); Lokes v. Kondrotas, 104 Conn. 703, 709,134 A. 246 (1926).” Canton Motorcar Works, Inc.
There is no error.
In this opinion Healey, Shea and Hull, Js., concurred.
Practice Book § 315 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”
The plaintiff argues that the defendant has failed to brief this issue and, therefore, has abandoned it. Assignments of error neither briefed nor argued are deemed abandoned. “ ‘Assignments of error are also deemed to be abandoned where they are merely mentioned in the brief without any discussion of the particular issues mentioned.’ ” Stoner v. Stoner, 163 Conn. 345, 349, 307 A.2d 146 (1972); Varley v. Varley, 189 Conn. 490, 504, 457 A.2d 1065 (1983). Because the defendant’s brief discusses the substance of this claim, however, we do not deem it to be abandoned.
The defendant argues in the alternative that it raised the issue of the court’s instructions on interest in its requests to charge. We have reviewed the defendant’s requests to charge and find nothing therein “covering” the issue of interest. Practice Book § 315.
Dissenting Opinion
dissenting. I disagree with the majority. I believe that the defendant’s request to charge and its exception to the charge were adequate
I respectfully dissent.