Kathryn Wood v. Town Sports International et al. (2013)

MEMORANDUM OF DECISION

In this civil action the plaintiff sued to recover damages from the defendants for personal injuries she suffered while a customer at a fitness center.   The jury awarded the plaintiff economic damages in the amount of $138,560.51 for past medical expenses.   Pursuant to General Statutes § 52–572h, the jury also found that the plaintiff negligence was thirty percent, leaving an award of economic damages of $96,992.35 ($138,560.51 x 70%).   Presently before the court is the defendant's motion for remittitur asking that the award of economic damages be reduced on account of collateral sources received by the plaintiff.   The plaintiff agrees that, under the circumstances, the award of economic damages must be reduced, but disagrees with the defendant as to the method of determining the reduction and the ultimate size of the reduction.

In relevant part, General Statutes § 52–225a(a) provides:

“In any civil action ․ wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death ․ and wherein liability 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 ․ by an amount equal to the total of amounts determined to [be collateral sources], except that there shall be no reduction for (A) a collateral source for which a right of subrogation exists, and (B) the amount of collateral sources equal to the reduction in the claimant's economic damages attributable to the claimant's percentage of negligence pursuant to section 52–572h.”  (Emphasis supplied.)

The facts are not in dispute.   The plaintiff received benefits from two ERISA plans in the total amount of $108,783.52.   There are ERISA liens (for which a right of subrogation exists) in the amount of $56,484.79.   The costs incurred to provide the plaintiff with insurance coverage during the relevant period was $10,242.86.   The net amount of collateral sources was $42,055.87 ($108,783.52—$56,484.79—$10,242.86).

The defendants claim that they are entitled to a reduction in the award of economic damages in the amount of $41,568.15 (30% of the total of $138,560.51 awarded by the jury.   The defendants claim that since the net amount of collateral sources ($42,055.87) exceeds $41,568.15, the phrase “the amount of collateral sources equal to the reduction in the claimant's economic damages attributable to the claimant's percentage of negligence pursuant to section 52–572h,” does not require any adjustment in the size of the reduction of the award of economic damages.

For her part the plaintiff claims that the phrase in question requires this court to reduce the tentative collateral source reduction of $42,055.87 by the amount of the “reduction in the claimant's economic damages attributable to the claimant's percentage of negligence” of $41,568.15, leaving a net collateral source reduction of $487.72.

The Appellate Court has considered the issue of how collateral source reductions should be handled when a plaintiff is found to be comparatively negligent.   In Mack v. LaValley, 55 Conn.App. 150, 168, cert. denied, 251 Conn. 928 (1999), the court held:  “We interpret § 52–225a(a) to mean that when the amount of the collateral sources received by the plaintiff is less than or equal to the amount of the reduction in the claimant's economic damages attributable to the claimant's own negligence, there shall be no collateral source reduction in the award.”

The defendant argues that Mack, supra, is not applicable because, in this case, the plaintiff has received the benefit of collateral sources ($42,055.87) which exceed the reduction in the award of economic damages attributable to the plaintiff's own negligence ($41,568.15).   According to the defendant's calculations, the jury award of $138,560.51 should be reduced to $96,992.36 because of the jury's determination that the plaintiff was 30% at fault.   The defendant would reduce that amount by the full amount of collateral sources received by plaintiff ($42,055.87) leaving net economic damages of $54,936.49.

The both parties claim to have based their calculations on Phan v. Widem, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 09 5026940 (May 23, 2011, Peck, J.) [52 Conn. L. Rptr. 24].   In that case the court, in conducting a hearing on collateral sources rejected the calculations proposed by both the plaintiff and the defense and made its own determination as to application of § 52–225a(a) to the following facts.   Economic damages relating to health care were found by the jury to be $20,696.55.   Collateral source payments were found by the court to be $16,344.02.   Because the jury had found the plaintiff's negligence to be 50%, the economic damages were reduced by $10,348.27 (50% of $20,696.55).   The court applied the language of § 52–225a(a)(B) and reduced the collateral source payments ($16,344.02) by “the reduction in economic damages attributable to the [plaintiff's] percentage of negligence” ($10,348.27) and found the net collateral source reduction to be $5,995.75.

The court finds that the calculations submitted by the plaintiff correctly apply the provisions of § 52–225a(a) as explained in Mack, supra and Phan, supra.   Accordingly, the court finds that the net collateral source reduction in this case should be $487.72.   That reduction should be applied to the jury's award of economic damages as reduced by the percentage of negligence attributable to the plaintiff ($96,992.35) leaving a final award of economic damages in the amount of $96,504.63.   The defendant's motion for collateral source reduction is granted in accordance with the foregoing calculation.   Judgment may enter for the plaintiff in accordance with the jury's verdict and this decision.

David R. Tobin, J.T.R.

Tobin, David R., J.T.R.