Elizabeth Goldrich v. United Services Automobile Association (2011)

MEMORANDUM OF DECISION RE MOTION FOR EXTENSION OF TIME (NO. 144)

Facts and Procedural History

The defendant, United Services Automobile Association, requests an extension of time to respond to the second offer of compromise filed by the plaintiff, Elizabeth Goldrich, on January 20, 2011.   The relevant procedural history of this matter is as follows.   On October 22, 2010, the plaintiff filed her first offer of compromise.   On November 2, 2010, the defendant filed a motion for extension of time to respond to the offer of compromise due to outstanding discovery and documents that had not yet been produced by the plaintiff.   The defendant requested thirty days from the time that the defendant has the necessary documentation to file a response to the offer of compromise.   This court, Cosgrove, J., granted the defendant's motion on November 15, 2010.

The defendant now seeks this extension of time given that “time has not yet elapsed and yet, the plaintiff has filed a second offer of compromise on January 20, 2011.”   The defendant contends that the plaintiff's medical charts have been submitted to the court and are currently being reviewed in camera.   The plaintiff argues that General Statutes § 52–195a, which governs offers of compromise, is not dependent on the defendant's completion of discovery and as a result, the defendant's motion should be denied.

Discussion

Section 52–192a(a), in relevant part, states:  “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain ․ The plaintiff shall give notice of the offer of compromise to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself.   Within thirty days after being notified of the filing of the offer of compromise and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise ․”

There is a split of authority amongst decisions of the Superior Court as to the court's authority to grant a defendant's motion for an extension of time to respond to an offer of compromise.   Some decisions of the Superior Court, relying exclusively on the language of § 52–192a, have concluded that the statute's language is mandatory and that the thirty-day time limit must be complied with by the defendant.   See Bernache v. Wheeler, Superior Court, judicial district of Tolland, Docket No. CV 10 6000999 (July 26, 2010, Sferrazza, J.) [50 Conn. L. Rptr. 393];  Cohen v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 317327 (May 24, 1996 Levin, J.) (17 Conn. L. Rptr. 181).

The Cohen court reasoned:  “General Statutes § 52–192a ․ is clear and unambiguous.   When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction ․ Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them ․ In such a case the wisdom of the ․ result is not a matter for consideration by this court ․ It is so, as the defendants observe, that the purpose of the offer of judgment statute is the promotion of fair and reasonable pretrial settlements, and consequently, the conservation of judicial resources ․ But were this court to engraft such an exception into the statute it would have to, in each case, identify at what stage of the discovery process the case was ripe for the filing of an offer of judgment.   If the court were to fashion a rule that an offer of judgment could not be filed until discovery were complete, then the ability to delay the plaintiff's ability to file an offer of judgment would be with the defendant.   Just where to draw the line is matter for the legislature to determine ․ Here, the legislature has determined that the line is to be drawn at the beginning, ‘[a]ny time after the commencement of any civil action based upon contract or seeking the recovery of money damages ․’ General Statutes § 52–192a.   In the absence of any showing that the plaintiffs have acted in bad faith in delaying the discovery process ․ the defendants' objections to the plaintiffs' offers of judgment are overruled.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In Prims v. Ciccarelli, M.D., Superior Court, judicial district of New Britain, Docket No. CV 05 5000530 (September 21, 2007, Shapiro, J.) (44 Conn. L. Rptr. 343, 346), the court noted that the mandatory time limitations of § 52–192a must be complied with absent an equitable reason for excusing compliance.   The Prims court recognized an exception to the mandatory time limit for compelling equitable reasons by relying on Pedro v. Miller, 281 Conn. 112, 118–19, 914 A.2d 524 (2007), in which the Supreme Court held that equitable reasons existed to toll the statute of limitations for serving the apportionment complaint, as mandated by § 52–102b(a).   See id.;   see also Dunn v. Chen, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 08 5008536 (February 3, 2011, Brazzel–Massaro, J.) (defendants failed to provide an equitable basis for extending the time to respond to the offer of compromise and therefore, court denied defendant's request).

The court in Ellison v. Dulatre, Superior Court, judicial district of New Haven, Docket No. CV 07 5015686 (June 12, 2008, Bellis, J.) (45 Conn. L. Rptr. 718, 720), adopted this approach and found that there existed compelling equitable reasons to excuse compliance with the mandatory thirty-day time limit.   In that case, the only medical record produced from the treating physician related to treatment within the first two days of the accident.   Although several dozen bills for treatment by the treating physician were produced, the corresponding notes or reports were not produced, although the plaintiff was under an obligation to do so.   The court noted that the defendant aggressively pursued discovery as evidenced by her initial motion for judgment of nonsuit, her subsequent motion to compel, and the deposition of the plaintiff, scheduled for the following week.   See id.

Moreover, the court noted that when confronted with the early offer of compromise, the defendant immediately sought a sixty-day extension, rather than an open-ended extension running from the occurrence of some event.   Under these circumstances, the court reasoned:  “This court would be hard-pressed to find anything the defendant has failed to do to put herself in a position to be able to make a meaningful response to the offer of compromise, and the defendant should not be penalized for doing nothing wrong.”  Id.;  contra Reed v. Pollock, Superior Court, judicial district of Fairfield, Docket No. CV 08 5016328 (January 29, 2009, Bellis, J.) (47 Conn. L. Rptr. 140, 142) (denying defendant's motion for extension of time because “[u]nlike the situation presented in Ellison v. Dulatre, supra, where, despite the defendant's aggressive attempts to obtain complete discovery, discovery remained outstanding from the plaintiff, there is no claim here that the plaintiff has delayed discovery, or of other compelling equitable reasons to excuse compliance with the mandatory thirty-day time limit within which to respond to the plaintiff's offer”).

Other decisions of the Superior Court decisions have determined, however, that the time period is directory.   See Christoforides v. Allstate Insurance Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 02 0190502 (August 11, 2004, Radcliffe, J.) [37 Conn. L. Rptr. 620];  McManus–Pesce v. Miller, Superior Court, judicial district of Hartford, Docket No. CV 00 0595198 (February 9, 2001, Peck, J.) (29 Conn. L. Rptr. 304, 305).   In Christoforides v. Allstate Insurance Co., supra, Superior Court, Docket No. CV 02 0190502, the court found that the defendant's motion for an extension of time was properly granted because the plaintiff had not yet been deposed and films of the plaintiff's cervical spine had not yet been received and examined by the defendant.   The court noted that the defendant's “request for an extension of time was not open-ended, but [rather] sought an extension for 30 days following the completion of the plaintiff's deposition, and review of the films.”  Id.

The Christoforides court stated:  “In determining whether a statute is mandatory or directory, the use of the word ‘shall,’ though significant, does not invariably establish a mandatory duty ․ Courts have traditionally looked beyond the word ‘shall’ in determining whether the provisions of a statute are mandatory, and have examined the statute's essential purpose ․ If a statute is designed to secure order, and dispatch in the proceedings, it is generally held to a directory, especially where the requirement is stated in affirmative terms, and is unaccompanied by negative words ․ The examination of any section of the Connecticut Practice Book is informed by the equitable provisions of § 1–8, which reads:  ‘The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or justice.’   The goal of the offer of judgment statute is to produce reasonable and fair settlements ․ Furthermore, there is nothing in the provisions of § 52–192a, CGS, or the corresponding provisions of the Practice Book, which would expressly invalidate a request by the defendant for an extension of time within which to consider and accept an offer of judgment.   It is therefore found, that the provisions of both the statute and the Practice Book are directory, and the court has the authority to extend the time within which to accept an offer of judgment, in the exercise of appropriate discretion.”  (Citations omitted.)  Id.

The court continued:  “To interpret those provisions in a rigid and Draconian fashion ․ would not advance the goal of encouraging pre-trial settlements, following full and fair evaluation of the plaintiff's claims.   A defendant possessing incomplete information due to pending discovery requests, would confront a Hobson's Choice dilemma.   That party can either elect to be stampeded into accepting an offer of judgment without the information necessary to fully evaluate a claim on its merits, or expose itself to a verdict plus interest, should subsequent discovery reveal that the offer of judgment was fair and reasonable.   This is contrary to the goal of promoting reasonable and fair resolution of claims.”  Id.;  see also McManus–Pesce v. Miller, supra, 29 Conn. L. Rptr. 305 (“the court is mindful of Practice Book § 1–8 ․ In addition, there is no negative provision contained in § 52–192a;  there is nothing in the statute which would invalidate the defendant's request for extension of time and acceptance of the plaintiff's offer within thirty days is not the essence of § 52–192a.   Based on the foregoing analysis, the court finds that the thirty-day time limitation of § 52–192a is directory rather than mandatory.   Therefore, the court has the discretion to extend the temporal limitation of § 52–192a and exercises its discretion in favor of doing so”).

The court agrees with the decisions of the Superior Court which determined that the language of § 52–192a is mandatory.   The mandatory time limitations of the statute must be complied with absent an equitable reason for excusing compliance.   In the present case, the defendant asked that the plaintiff produce the full medical charts of her primary care physicians for a period of approximately ten years prior to the subject motor vehicle accident.   The defendants asked for this medical history because of the “plethora” of conditions claimed by the plaintiff, in addition to “the confusion caused by the fact that the plaintiff has been involved in multiple motor vehicle accidents and treated by multiple doctors, some of whom are out of state and whose records have not been obtainable.”

The court, Martin, J., ordered an in camera inspection of these records on December 6, 2010.   On March 30, 2011, the court, Parker, J., issued the following order:  “Numerous medical records of the plaintiff, Elizabeth Goldrich, have been submitted to the court for its in camera review.   The court having read all of them holds that all these records should be turned over to the defendant.”

The defendant could not make a meaningful response to the plaintiff's offer of compromise absent these medical records.   As such, the court grants the defendant's request.   The defendant has thirty days from its receipt of these documents to file a response to the offer of compromise.

Conclusion

For all of the foregoing reasons, the defendant's motion for an extension of time to file its offer of compromise is hereby granted.

Cosgrove, J.

Cosgrove, Emmet L., J.