Stephen J. Papa v. AIG (2010)

MEMORANDUM OF DECISION

On April 3, 2006 at approximately 12:05 p.m. Steven J. Papa was operating his 2001 Buick LeSabre in a generally easterly direction on a public highway known as Route 40 in the town of North Haven, in the general vicinity of the Route 15 overpass.   The applicable police report indicates the weather was clear and dry and that a second vehicle, identified as a silver-colored Mazda sedan-type vehicle, also traveling in a generally easterly direction on said roadway, collided with, into and upon the passenger side of the Papa vehicle, spun out of control and came to rest on the travelled portion of the roadway whereupon the operator of that vehicle caused the same to accelerate and strike a third vehicle and then leave the scene of the collisions without leaving any identification.   The police were unable to identify the owner or operator of that Mazda-type vehicle.

At the time of the collision Steven J. Papa was alone in his vehicle.   As a consequence of the collision his vehicle sustained moderate right-side damage, according to the police report and his vehicle was forced from the road way on to the median divider of the roadway in question.

The parties stipulated and agreed that the operator of the Mazda sedan-type vehicle was legally liable and at fault for so negligently steering, operating and controlling his motor vehicle so as to cause the collision with the Papa vehicle.

At all times mentioned Steven J. Papa was a named insured under a policy of automobile insurance issued by the defendant.   That policy included coverage for bodily injury sustained by an insured person as a consequence of negligent operation of an uninsured motor vehicle with applicable limits of $250,000 per person.

The insuring cause of the applicable uninsured motorist coverage provided in pertinent part:  “we will pay all amounts that any insured person may legally recover as damages for bodily injury from the owner or driver of an uninsured or hit and run highway vehicle.   For coverage to apply, such bodily injury must be caused by an accident involving the use of an uninsured or hit and run vehicle.”

The parties stipulated and agreed that Steven J. Papa, the plaintiff, was an insured person.   The parties also agreed that the operator of the silver Mazda-type vehicle was legally liable for the aforementioned collision and qualified as an uninsured or hit and run highway vehicle under the terms and conditions of the aforementioned policy.

The solo issue to be decided by the Court, as submitted by the parties to this case is:  What sum of money constitutes full, fair, just and reasonable compensation for bodily injuries and losses proved to have been proximately caused by the negligence of the uninsured motorist?   The parties stipulated and agreed that the limits of the applicable uninsured motorists coverage was $250,000 per person and that no set ups or reductions of such coverage or any damages that may flow from such accident were applicable to this case.

At the time of the subject collision the plaintiff, Stephen J. Papa, was 89 years old and at the time of his deposition in connection with this case he was 93 years old.   Due to his ill health he was unable to participate in trial but during his deposition testimony he accurately described how the subject collision occurred and that it was “a very strong hit.”   Mr. Papa further described that after the collision he did not exit his car but that he noted “a really bad pain in the hip and the foot, from the foot to the hip it was sore, I mean sore.”   His deposition testimony included the complaint that “my problem went from my foot and my hip and it gradually got worse, worse and worse.   And right now of course I couldn't dare to walk with a cane or even a walker I have to strictly use a wheelchair.”   The plaintiff acknowledged during his deposition that he did fall and suffer a fractured hip approximately 6 months after the subject collision but that before the hip injury his recollection was that the bruising, contusions and pain caused by the car accident severely limited his ability to engage in a variety of life's activities including his “exercise” his “work in the garden” and his “volunteer work” in the Hospital of St. Raphael's.

Mr. Papa's testimony, together with the viva voce testimony of his family members during the trial, presents the picture of a man who had a very full life and a very independent life prior to the subject collision.   He managed 60 seconds of fruitful activity for himself, his family and friends, his business and his community in each unforgiving moment.   Though he was 89 years old on the date of this collision he was driving himself to an appointment, he regularly drove himself to go shopping, run errands and to do volunteer work.   He was described as a person who had been vitally engaged in civic activities, business activities, family activities, social activities in the community and, based on his accomplishments, was widely known and respected in his community.   He described, and his family members echoed his testimony, that following the subject collision he lost his mobility and independence and as a consequence his mental and emotional states were adversely impacted.

John Vendetto, a City of New Haven Fire Department Lieutenant who is married to plaintiff's granddaughter testified on behalf of the plaintiff.   Mr. Vendetto described an independent, strong-willed, self-sufficient patriarch of the extended Papa family who managed real estate business, regularly volunteered, attended various board meetings and “thrived on talking to people, loved to shop” and whose vitality and activity level was adversely impacted by the subject collision.   Lieutenant Vendetto assisted the plaintiff immediately following the subject collision, recalled leg pain complaints and observed in the months immediately following the subject collision and deterioration in the plaintiff's activity level and as he saw, a consequent souring of the emotional status of the plaintiff.   John Vendetto noted that the most pronounced effects on Steven Papa following this collision where it was “a loss of independence.”

During both direct and cross examinations the genuine respect, affection and love that John Vendetto feels for the plaintiff was evident.   The plaintiff, and the plaintiff's entire family is very fortunate to have the assistance of John Vendetto in the care and attention that he willingly provided to the plaintiff both before and after the subject collision.

On cross examination John Vendetto acknowledged that he was not sure on which leg was bruised as a consequence of this accident nor was he precisely sure as to how much the plaintiff was using a walker before the subject collision when confronted with the July 14, 2005 medical report of Dr. John Irving that noted the plaintiff was then, 9 months before the subject collision, using a walker.   John Vendetto noted that the plaintiff had fallen in his home bathroom a number of times, wasn't entirely sure how many times and when shown the medical records indicating a July 2006 and an October 2006 fall by the plaintiff, the witness indicated that those reports may well be accurate but the witness did recall that the plaintiff suffered a fractured hip in one of the falls.   The medical records show that the plaintiff suffered the fractured hip in a fall at home on October 31st, 2006.

Steven J. Papa, Jr., one of the plaintiff's sons, also echoed the testimony of his father and his son-in-law, John Vendetto, when describing the plaintiff as a strong-willed, independent, forceful and largely self-reliant person before the April 3, 2006 subject collision.   Following that collision, the subsequent falls and fractured hip Steven noted that his father suffered from a loss of independence, a loss of appetite with consequential loss of strength and interest in life's activities and a loss of mobility that resulted in negative emotional outlook.   Steven Papa, Jr. described his tremendous commitment to caring for his father and mother, living in their home, being full-time health aide, assistant and caretaker, for a long period of time until just days before the subject trial.   The love, affection, devotion, respect and dedication felt by Steven Papa, Jr. for his father and mother was evident through out his testimony.

The plaintiff offered voluminous medical records, a pile of report standing approximately 6 inches thick was submitted, describing his medical care for some years before the subject collision and thereafter to the current time.   The records note, some great detail, that prior to the subject collision the plaintiff had had a number of chronic medical conditions requiring care and treatment and surgical procedures, including but not limited to, coronary artery bypass grafting surgery, pacemaker implantation and a total right hip replacement.

The medical records indicate that in mid-July 2006, just 3 months following the subject motor vehicle collision, Mr. Papa fell in his home and suffered some bruising and contusions of his back and hip.   The records also show that on October 31, 2006 Mr. Papa fell in his home and suffered a non-displaced fracture right hip which necessitated non-surgical care and treatment.   Mr. Papa vociferously complained of pain in his right leg and indicated the subject collision caused the pain, in spite of the fact that the medical reports contemporaneous with the motor vehicle collision record bruising and a hematoma on the left leg/thigh.   No medical expert offered any opinion that either the July or October falls was caused by or related to the April 2006 subject motor vehicle collision.

After examination of hundreds of pages of medical bills and reports, the challenge for the Court was to determine which injuries and losses proximately, in the opinion of the medical experts, resulted from the subject collision.   The medical expert reports of Dr. Irving, Dr. Lynch, and the Professional Rehabilitation and Occupational Physical Therapy group provide persuasive evidence that between April 5, 2006 and July 18, 2006 Steven J. Papa was treated for physical injuries to his left upper leg and right shin as a consequence of the collision.   Both doctors Irving and Lynch record observations of bruising, contusions and a presence of a hematoma on the left thigh, with accompanying pain and limitation of activity, necessitating both orthopedic care, including x-rays, and physical therapy.   The medical evidence from April through July of 2006 documents Steven Papa's complaints of bilateral hip, left thigh, left calf and right shin pain caused by the subject collision.   The records describe “constant” and “sharp” pain, anxiety, worry and concern experienced by the patient/plaintiff.

As a consequence of the subject collision and the aforementioned injuries Dr. Lynch, treating orthopedist, prescribed physical therapy.   The plaintiff attended physical therapy on ten separate sessions through July 14, 2006.

On July 20, 2006 Dr. Lynch noted that Steven Papa was seen in connection with a “new complaint” concerning a fall in his home bathroom several days immediately prior thereto.   At that point Dr. Lynch's focus became the care and treatment of the “new complaints” through October of 2006 when Steven Papa again fell in his home bathroom and suffered a non-displaced hip fracture.

Unquestionably the right hip fracture of October 2006 contributed to Mr. Papa's subsequent and significant overall decline, as noted in Dr. Marieb's March 19, 2007 report, and as eloquently described by both John Vendetto and Steven J. Papa, Jr. during their testimony.

The medical bills for care and treatment related to the April 3, 2006 subject collision total $2,961.53.   This comprises the economic loss attributable to this case and includes the relevant treatment from the orthopedic group LLC, doctors Irving and Lynch, and the physical therapy ordered by Dr. Lynch for the hematoma resulting from the said collision covering the period from 4-05-06 and 7-18-06.

Though the plaintiff has offered substantial additional medical bills for consideration, the plaintiff has not established, through competent medical evidence or otherwise, the necessary causal relation between the uninsured motorist's negligent behavior and that care and treatment received by the plaintiff following the subject collision.

In Aspiazu v. Orgera, 205 Conn. 623, 632 (1987), the court restated the requisite basis for expert opinion:

Although we approve generally of the “reasonable medical probability standard, we also note that no “talismanic words” are mandatory.   See Healy v. White, 173 Conn. supra, 444 ․ While we do not believe that it is mandatory to use “talismanic words” or “the particular combination of magical words represented by the “reasonable degree of medical certainty [or probability];  Matott v. Ward, 48 N.Y.2d 455, 463 399 N.E.2d 645 (1979);  there is no question that ․ a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition ․ (citations omitted).

The plaintiff did establish that the injuries sustained in the subject collision did substantially interfere with his activities of daily living.   His testimony, coupled with the heartfelt and credible testimony of his family members, established that the injuries decidedly impacted both the physical and emotional life of the plaintiff in a wide variety of ways previously described:  in his daily activities and in his emotional outlook as evidenced by his interaction with people in his life.   This impact is necessarily attenuated with time and dissipation of the immediate effects of the injuries and confused by the several subsequent traumas that befell the plaintiff.   Nonetheless, the compelling evidence was that the negligence of the uninsured motorist severely adversely affected the plaintiff.   The court awards the sum of $30,000 as non-economic damages, for physical pain, emotional suffering, worry, apprehension, concern and interference with life's activities, caused by said negligence and compensable under the terms and conditions of the subject uninsured motorist provisions of the defendant's policy.

Wherefore, the Court awards the plaintiff the following as full, fair, just and reasonable compensation, for injuries and losses proximately resulting from the uninsured motorist's conduct on April 3, 2006:

Economic damages:  $ 2,961.53

Non-Economic damages:  $30,000.00

Total Award of Damages:  $32,961.53

Zemetis, J.

Zemetis, Terence A., J.