Gale Hylton v. Josue Lopez Michimani et al. (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ADDITUR

The plaintiff, Gale Hylton, filed a Motion for Additur on July 26, 2010 following a Plaintiff's Jury Verdict ¹ which awarded her past medical bills and lost wages, but no non-economic damages.   The defendant, Allstate Insurance Company, filed no objection, but articulated its opposition at a hearing before this court on November 2, 2010.   The motion, having been timely filed and duly considered, is granted for the following reasons.

Ms. Hylton was involved in a rear-end collision caused by an uninsured negligent motorist.   The defendant admitted negligence but denied causation and the extent of the plaintiff's claimed injuries.   Following the motor vehicle collision, which took place in 2005, the plaintiff was transported to the Emergency Room from the accident scene via ambulance.   Subsequently, she treated with health care professionals, one of whom assessed her as having sustained a permanent partial disability to her lumbar spine and to her cervical spine as a result of the 2005 collision.   The plaintiff testified that she lost time from work due to her injuries.   Her employer, at that time, also testified.   In addition to presenting evidence of a course of physical therapy, the plaintiff testified that the accident caused her to take prescription medication for the pain.   In 2007, after a gap in treatment, the plaintiff underwent another course of medical treatment which she and her doctor claimed were related to the motor vehicle collision.   The evidence adduced at trial indicated that the plaintiff was also involved in a subsequent motor vehicle accident.

The jury awarded the plaintiff all of her claimed medical bills for treatment in 2005 ($4,380.76);  and all of her claimed lost wages ($5,000.00);  but none of her claimed medical bills for 2007;  and none of her claims for non-economic damages.   The plaintiff filed this motion for additur, arguing that this verdict is inconsistent with the evidence and inadequate as a matter of law.   The defendant argued in opposition that had the plaintiff truly believed that the verdict was inconsistent with law, counsel could have requested that the court not accept the verdict.   Defense counsel also argued that the jury is allowed to determine the amount of the award, if any, for non economic damages and that the court should not interfere with that determination.

In Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000) our Supreme Court clearly established the rule that an award of economic damages alone, with no concurrent award for noneconomic damages, is no longer inadequate as a matter of law.   Instead, when such occurs, the court must carefully examine the evidence presented to the jury.

“[T]he jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it.   Accordingly, the trial judge should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.   That decision should be made, not on the assumption that the jury made a mistake, but rather, on the supposition that the jury did exactly what it intended to do.”  Id., 188-89.

Pursuant to this case-by-case determination, some courts have upheld awards of economic damages with no non-economic damages.   See, e.g., Turner v. Postural, 88 Conn.App. 720, 871 A.2d 1044 (2005);  Schottiana v. Labarba, 82 Conn.App. 445, 844 A.2d 923 (2004);  Santa Maria v. Klevecz, 70 Conn.App. 10, 800 A.2d 1186 (2002);  Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn.App. 465, 760 A.2d 117 (2000), aff'd 257 Conn. 359, 777 A.2d 681 (2001).   But, unlike the instant case, these cases involved plaintiffs with pre-existing injuries or other accidents to which pain and suffering could be attributed.

This case is more like the situation facing the trial court in Elliot v. Larson, 81 Conn.App. 468, 477, 840 A.2d 59 (2004).   In Elliott, the trial court granted the plaintiff's motion for additur because “the jury not only awarded the plaintiff all of the claimed [medical expenses], but also his lost wages and lost overtime.”  Id., 47.   The appellate court affirmed the trial court's conclusion that “[t]he award of the plaintiff's lost wages must necessarily have flowed from. the conclusion that he was injured, suffered pain and could not work.”   Therefore, the appellate court upheld the trial court's ruling that “[t]he failure to award noneconomic damages is inconsistent with the conclusion of injury and the award of lost wages.”   Equally compelling is the fact that in Elliott, unlike in this case, there was evidence that the “plaintiff ․ had a preexisting [but asymptomatic] condition ․ [for which] the plaintiff had not had any treatment ․ prior to this accident.”  Id.

Considering all the requisite facts in the light most favorable to upholding the jury verdict, this court concludes that the jury's verdict is inadequate.   Clearly, the jury believed that the plaintiff was injured in 2005 as a result of the collision, and that she was caused to lose time from work as a result of those injuries.   Its failure to award noneconomic damages for the plaintiff's pain and suffering experienced in 2005 is inconsistent with its award of economic damages.   See, Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 783-84, 882 A.2d 652 (2005).   Therefore, it was improper for the jury to fail to award any non-economic damages.   Accordingly, the court grants the motion for an additur and awards an additional $2,500.00 in non-economic damages.   The verdict shall be set aside unless within twenty (20) days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $2,500.00 in non-economic damages.   This additur shall be added to the original award of $9,380.76.   If the additur is accepted, judgment will enter for the plaintiff in the amount of $11,880.76, plus taxable costs.   If the additur is not filed within said time, or filed and not accepted by the plaintiff, the verdict is hereby set aside and a new trial is ordered limited to the issue of damages.

Robinson, A., J.

FOOTNOTES

FN1. The jury rendered its verdict on July 15, 2010..  FN1. The jury rendered its verdict on July 15, 2010.

Robinson, Angela C., J.