Janet Fleming v. Gregory Dionisio (2013)

MEMORANDUM OF DECISION re FINAL JUDGMENT (corrected)

Nature of the proceedings

This is an action arising from a tragic motor vehicle accident in which plaintiff's decedent, the operator of a motorcycle, was killed in the collision.   Defendant Gregory Dionisio was the operator of the motor vehicle that struck the motorcycle, and defendant John Dionisio (Gregory Dionisio's father) was the owner.   The action was commenced by Janet Fleming, acting both in the capacity of representative of the estate of her husband as well as in her own right seeking loss of consortium.

Shortly before scheduled commencement of trial in the summer of 2012, John Dionisio settled with plaintiffs, paying $1.3 million and obtaining a release.   Defendant ¹ thereupon filed a motion for summary judgment (after obtaining permission from the court to do so as well as a continuance of the trial date), based on the theory that the release of the alleged principal in an alleged agent-principal relationship automatically constituted a release of the alleged agent (Gregory Dionisio).   That motion ultimately was denied by the court [55 Conn. L. Rptr. 594].

The case was tried based on a complaint in six counts, three on behalf of the decedent and three relating to the loss of consortium claim.   Three theories of recovery were alleged—negligence, common-law recklessness, and statutory recklessness (General Statutes § 14–295).   Defendant admitted liability under the negligence count asserted on behalf of plaintiff's decedent but contested the other five claims.

The case was tried to a jury which rendered its verdict on April 11, 2013, finding defendant Gregory Dionisio liable for each of the three theories as to each of the two plaintiffs.   The jury responded to interrogatories, setting forth its findings as to damages/awards for negligence and statutory recklessness claims.   The jury also found that plaintiffs were entitled to common-law punitive damages.  (Instead of asking the jury to calculate common-law punitive/exemplary damages (if found to be warranted), the parties agreed that the jury would only be asked to determine whether such an award was appropriate, with the actual amount of that award to be determined by the court.)

The jury awarded the following amounts:

Compensatory damages—estate—$1,228,847.78

Compensatory damages—loss of consortium—$30,000

Statutory punitive damages—double damages—estate—$1,228,847.78 ²

Statutory punitive damages—double damages—consortium—$30,000

Common-law punitive/exemplary damages—estate—awarded;  to be determined by the court

Common-law punitive/exemplary damages—loss of consortium—awarded;  to be determined by the court ³

During the trial, defendant moved for a directed verdict (which was denied).   After the verdict was accepted, defendant timely moved to set aside the verdict and for judgment notwithstanding the verdict;  both of those motions have been denied.

Remaining outstanding are three significant issues;  the first two are essential to determination of the terms of the judgment to be entered against defendant (which in turn allows the third issue to be addressed):

1.  What is the proper treatment of the $1.3 million settlement already received by plaintiffs, paid on behalf of the codefendant John Dionisio?

2. What are the common-law punitive damages to be awarded?

3. Are plaintiffs entitled to offer of compromise interest, and if so, how much?

The Settlement

The evolution of the positions of the parties with respect to the $1.3 million settlement provides an appropriate frame of reference for a substantive discussion of treatment of that money.   Defendant initially claimed that the settlement and release entitled him to judgment as a matter of law, resulting in the filing of a motion for summary judgment, which the court ultimately denied (# 175.87).   Defendant then took the position that it was a matter of a special defense (second special defense in # 212.00) that should be brought to the attention of the jury (see, also, request to charge, ¶ 18 of # 213.00).   The court consistently took the position that any credit or offset as alleged in defendant's second special defense was a matter for the court to handle in a post-verdict context (such as this).   Defendant continued to raise the issue through post-trial motions.

Plaintiff's “real” position with respect to this issue is less clear, primarily because plaintiff was not affirmatively asserting anything but rather was assuming a defensive posture, seeking to minimize or eliminate its relevance to the trial and ultimate disposition of the case.   Thus, plaintiff filed a lengthy motion in limine (# 216.00), articulating at length why the jury should not be allowed to hear of the settlement or release, without addressing the possible “proper” use of that information.   The court's recollection is that at the most recent (last) hearing on issues that remained outstanding (on September 17, 2013), plaintiff acknowledged that the court would be required to do “something” with the settlement figure of $1.3 million, and took the position that that figure should be addressed by an order in the nature of remittitur.  (Counsel stated something to the effect that he would not be in a position to object to that.)

While the existence of a recognized label (remittitur) for an order that the court may issue may be attractive for various reasons—e.g. a well-established category of order is likely to have well-established criteria for issuance and a clear meaning—the court is reluctant to label its order in this regard as in the nature of remittitur for the simple reason that a remittitur implies an option on the part of the plaintiff.   If a plaintiff declines to accept a remittitur, the usual alternative is that the verdict is set aside as excessive.   Here, however, the court believes that any such option would be illusory, since the court believes that it is necessary to adjust any verdict to take into account this settlement, and conversely, giving plaintiff the choice of accepting the remittitur or asking for a new trial would essentially give plaintiff a theoretical option to ask for repeated “do-overs” until obtaining a verdict more to her liking (net of any reduction due to remittitur).

The court recognizes that General Statutes § 52–216a and cases such as Peck v. Jacquemin, 196 Conn. 53 (1985), seem to compel the court to treat this as a remittitur situation.   However, in Civiello v. Owens–Corning Fiberglass Corp., 208 Conn. 82, 89 (1988), the court seems to indicate that the terminology is of less moment than the nature of corrective action taken by the court.   Although it may be difficult to tease out the precise parameters of what the court was saying, given the absence of any opposition from the plaintiff to a reduction in the verdict, the court did state that

“[s]uch a deduction from a verdict is not to be confused with a remittitur pursuant to general statutes § 52–228b, where the plaintiff has the alternative of a new trial if he fails to accept the remittitur order.   In this case, since the propriety of the reduction was never disputed, there was no reason to order a new trial.” 4

This case bears a significant difference from the situation contemplated by the statute and present in cited case law.   The statute and case law contemplate the existence of “other” tortfeasors—other than the party who settled.   In this case, there is a threshold problem of how one should characterize the settling party—the father of the named defendant who also was the owner of the vehicle being operated by the named defendant at the time of the events described in the complaint.   The court's memorandum of decision with respect to summary judgment discusses the issue at length—initially, plaintiff claimed (in her complaint) that there was vicarious liability on the part of the owner but later (at the summary judgment stage) seemed to concede ⁵ that she would not be able to prove applicability of the family car doctrine (statutory or otherwise) nor would she be able to prove the existence of an actual agency relationship.   There is no question but that defendant operator was a permissive user of that vehicle.   The net result, then, is that the only possible basis for liability of defendant owner was under some theory of vicarious liability, but that would not fit the usual concept of joint tortfeasor.   Whether a claim of vicarious liability was provable did not alter the fact that any money paid on behalf of John Dionisio was grounded in the ultimate liability of Gregory Dionisio, i.e. the payment was made in response to claims based on the same liability to plaintiffs (same negligent conduct).

To the extent that plaintiff appears to have conceded that an adjustment is necessary, and to the extent that the terminology “remittitur” seems to be appropriate if not required, the court will order a remittitur based on the settlement received from (on behalf of) John Dionisio, prior to trial.   The order is not based on any notion of the verdict being excessive in some absolute sense, but rather is premised on the “double recovery” theory discussed in Civiello, with the adjustment required to avoid any unjust enrichment.

In the preceding paragraph, the court took care not to state that the remittitur was in the amount of $1.3 million, the amount of settlement.   The rationale for the adjustment is prevention of a double recovery—avoidance of unjust enrichment arising from being compensated twice for the same set of injuries/claims.   Under the particular circumstances in this case, the court needs to harmonize the payment received and the nature of the adjustment to be made.   The $1.3 million payment was made to Janet Fleming in her capacity as representative of the estate of her late husband as well as in her own right.   The money was paid solely with respect to claims against John Dionisio and those claims were all based on negligence—vicarious responsibility for the negligence of Gregory Dionisio.   The composite verdict of the jury, relating to negligence claims was less than the $1.3 million paid.   If the full $1.3 million were to be credited against the entire verdict “package” then part of a payment made for compensatory purposes (settlement of negligence-based damage claims) would be used to offset an element of punitive damages actually awarded.   The court does not believe that the unjust enrichment approach in Civiello requires or even allows such an inequitable outcome.   Accordingly, the court believes that the proper adjustment to the verdict—remittitur—should be in the amount of $1,258,847.78, as an adjustment to compensatory damages only.  (To avoid any ambiguity or uncertainty:  to the extent that Civiello permits the settlement of $1.3 million to be credited, in part, against punitive damage awards, the court declines to do so, finding such a result to be inequitable.) ⁶

The court believes that a further refinement is required.   In effect, the adjustment set forth in the preceding paragraph would zero out the recovery on negligence-based claims as awarded by the jury.   That, however, would lead to a scenario in which, despite findings of liability by the jury, and despite findings by the jury of significant damages, the court would be ordering a verdict in the amount of $0 on the two negligence-based counts.   In order to avoid any possible consequences arising from a $0 verdict for plaintiff, the court instead will reduce the adjustment to the compensatory damage awards so as to result in a net (adjusted) verdict of one dollar in favor of plaintiff, both in her representative and personal capacities.

Common-law punitive damages

Common-law exemplary or punitive damages are intended to serve two complementary purposes:  punish a defendant for his egregious conduct while providing a nonstandard form of compensation to the successful plaintiff by making her whole with respect to litigation costs that otherwise would be her responsibility (which obligation would thereby prevent her from obtaining the actual benefit of the full award of the jury).   The award of common-law punitive damages has two general components—attorneys fees and non-taxable costs of litigation.  Harty v. Cantor Fitzgerald & Co., 275 Conn. 72 (2005).

In this case, there does not appear to be any real dispute about the amount of non-taxable costs incurred (exclusive of attorneys fees).   There was an initial dispute as to what charges properly were characterized as taxable, but that appears to have been resolved satisfactorily.

Defendant has disputed whether all such costs should be incorporated into the calculation of punitive/exemplary damages, based on a provision in the second fee agreement that limited plaintiff's responsibility for such costs to the amount that had been incurred as of the date of the agreement;  any additional such expenses incurred would be payabIe only if there were an additional recovery.   The court rejects utilizing that lower figure for at least two reasons:  there is no reason articulated nor can the court think of one, why defendant should benefit (receive a windfall) based on an agreement allocating actually-incurred costs as between plaintiff and her attorney.   Second, there is only one opportunity for the court to make this determination;  there was an additional award and to the extent that additional funds may be collected in the future, the court cannot issue a contingent determination but rather must make a definite determination at this time.   Accordingly, exclusive of attorneys fees, the court finds the non-taxable costs component of the punitive damages award to be $26,237.09 (see, e.g. docket entry # 254.00).

At the outset of post-verdict motions hearings, the parties seemed to be arguing that the court was establishing/awarding attorneys fees.   The court consistently took the position that it was calculating punitive damages for which attorneys fees might be the most significant component, but was not undertaking the responsibility for determining an award of attorneys fees.   That led to defendant's position morphing into a contention that regardless of fees actually paid or payable pursuant to fee agreements, the court has the discretion to reduce the fee component of common-law punitive damages based on equitable considerations.   Defendant also challenged the second fee agreement between plaintiff and her counsel—whether for purposes of determining punitive damages, the court should look only to the original fee agreement.

There does not appear to be any serious dispute as to the amount of attorneys fees paid or payable to counsel for plaintiff as a result of the settlement last year ($265,000).   There also should be no dispute as to the amount that is or will be calculated as due, based on the outcome of the trial, as the actual fee agreements were provided (and ordered to be provided) to counsel by way of backup to the amounts being claimed.   Nonetheless, defendant takes particular exception to the second fee agreement to the extent that attorneys fees are in excess of the statutorily prescribed amount with respect to the recovery at trial—defendant believes that there was no reason for there to be a new agreement, post-settlement with John Dionisio, providing for a higher rate than provided in the statute (General Statutes § 52–251c).  (The initial fee agreement provided for the same fee as the statute, with respect to any award beyond the initial settlement figure (10%).)

Defendant's principal objection to the post-settlement fee agreement appears to be that nothing had changed in the case as a result of the settlement—the issues remained the same.   While that perspective may well be justifiable, the court has attempted to view the situation from a more practical vantage point.   Assuming that plaintiff and plaintiff's counsel recognized that any settlement received would be credited, in some fashion, against any verdict, plaintiff's counsel effectively was agreeing to try a case in which the verdict had to exceed $1.3 million of compensatory damages before there would be any net compensatory recovery.   With respect to punitive damages claims, while the issues remained the same, the punitive damages claims became more prominent simply because of the high threshold for negligence claims to be meaningful/productive (and collection of a punitive damage award was likely perceived to be more difficult).   To put it differently, the settlement had “cherry picked” the (relatively) easily-attainable and easily-collectible aspects of the case.   Such concerns, to the extent they existed at the time of the new fee agreement, were largely vindicated by virtue of the actual results—there are no new negligence dollars to be collected, and the ability to collect punitive damages from someone currently incarcerated is at best uncertain and likely to be protracted.

Accordingly, to the extent that the court has the ability to look behind the fee agreement(s), particularly the second one that departs significantly from the statutorily-presumed fee schedule, the court declines to second-guess the decision of plaintiff to enter into such an agreement.   The court believes that it was reasonable as of the time of settlement (one year ago) to recognize the likely greater difficulty in attaining a meaningfully-positive result after trial (a result more substantial than a “paper judgment”), and declines defendant's invitation for the court to remake the fee agreement between plaintiff and her attorney with respect to the results of the trial, for use in determining common-law punitive damages.

Having said that, the foregoing discussion relating to the second fee agreement is believed to be essentially irrelevant to any issue before the court.   The jury verdict with respect to compensatory damages was less than the amount of the settlement such that there are no new negligence-based dollars that plaintiff will receive and therefore no additional negligence-based attorneys fees.   The purpose of a common-law punitive damage award, as previously noted, is to make the plaintiff whole with respect to the damages awarded.   In most situations, those damages are only compensatory damages.   To the extent that plaintiffs here also received an award of statutory punitive damages, the court does not believe that the concept of making a party whole, as is the case with compensatory damages under a negligence claim, is transferable to a statutory punitive damages claim.   If the court were to award attorneys fees based on a statutory punitive damages award, without explicit statutory authority,⁷ the court would in a sense be ordering punitive damages squared—punitive damages with respect to a punitive damages award.

In Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280 (1984), the trial court had adopted the approach that this court believes to be appropriate.   Generally speaking, the Supreme Court decision merely recited what the trial judge had done or deemed it to be an appropriate exercise of discretion.   The only possibly-relevant issue that the Supreme Court actually ruled upon was the determination of the base number for multiple damages under § 14–295—the court ruled that double or treble damages under that statute should be based on compensatory damages only and not include any award of common-law exemplary/punitive damages for that purpose.   To the extent that plaintiff, here, is asking the court to do the reverse—include statutory punitive damages in the calculation of common-law punitive damages—the court believes that it, too, would be unauthorized.   If, to the contrary, the court does have the discretion to do so, the court would decline to engage in such doubling up, recognizing that the jury determination that double damages were appropriate but not treble damages, signifies a middle-ground evaluation of the extreme nature of defendant's conduct, which would be inconsistent with the inclusion of the statutory award in the common-law calculation.

To put it differently:  Accepting the notion that the primary purpose of common-law punitive damages is compensatory in nature (make the plaintiff whole), Berry v. Loiseau, 223 Conn. 786, 827 (1992), the court does not believe that relieving a plaintiff of the obligation to pay the attorneys fee associated with the recovery of statutory punitive damages properly can be characterized as compensatory in nature.

Having concluded that common-law punitive damages can only be based on compensatory damages, the actual fees paid or payable based on the initial $1.3 million settlement is the sole attorneys fee contributor to the determination of common-law punitive damages.   That figure is $265,000,⁸ and is to be added to the non-taxable costs previously identified ($26,237.09), resulting in a total common-law punitive damage award of $291,237.09.   Consistent with footnote 3, above, the court allocates $3000 to Janet Fleming,⁹ personally, and the balance to the claim of the estate.

Claimed offer of compromise interest

The final issue that the court needs to address is the determination of whether plaintiff is entitled to interest under the offer of compromise procedure (Practice Book § 17–14 et seq.), and if so, the correct amount.

On September 14, 2012, plaintiff filed an offer of compromise in the amount of $1,570,000, directed to Gregory Dionisio.   In order to determine entitlement to interest, the court needs to compare the offer figure with the actual net result.   Given the uncertainty as to the numbers that would go into a calculation of the net result (actual (net) verdict amounts as determined in the first two sections of this memorandum), the court indicated that it would treat its calculation at this time as something of a preliminary calculation, giving the parties an opportunity to critique the calculation and/or object to it as appropriate.

Civiello, supra, controls the calculation in this case, and mandates that the court look at the adjusted result and not the amount of the verdict as initially awarded by the jury.   The court needs to compare the figure stated in the offer of compromise with the net amount of the judgment.   The actual total judgment (after adjustments) is $1.00 + $1,228,847.78 + $288,237.09 + $1.00 + $30,000.00 + $3,000.00 = $1,550,086.87.   That amount is less than the amount stated in the offer of compromise ($1,570,000).   Accordingly, the court has determined, at least on a tentative basis, that no offer of compromise interest is to be awarded.

Summary of orders

Judgment shall enter as follows:

1.  First Count (negligence—death)—a remittitur/adjustment is ordered in the amount of $1,228,846.78, resulting in a net judgment of $1.00 to Janice Fleming, Administratrix.

2. Second Count (statutory punitive)—judgment is ordered in the amount of $1,228,847.78 to Janice Fleming, Administratrix.

3. Third Count (common-law punitive/exemplary)—judgment is ordered in the amount of $288,237.09 to Janice Fleming, Administratrix.

4. Fourth Count (negligence—loss of consortium)—a remittitur/adjustment is ordered in the amount of $29,999.00, resulting in a net judgment of $1.00 to Janice Fleming (personally).

5. Fifth Count (statutory punitive)—judgment is ordered in the amount of $30,000.00 to Janice Fleming (personally).

6. Sixth Count (common-law punitive/exemplary)—judgment is ordered in the amount of $3000.00 to Janice Fleming (personally).

The parties are given two weeks from the date of filing of this memorandum of decision in which to file any supplemental memoranda relating to the issue of offer of compromise interest, as tentatively addressed in the third section above.

POVODATOR, J.

FOOTNOTES

FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio..  FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio.

FN2. The jury responses to interrogatories relating to statutory punitive damages under § 14–295 recited the doubled amounts.   For clarity, the court is indicating the amounts of punitive damages only, as to each such claim..  FN2. The jury responses to interrogatories relating to statutory punitive damages under § 14–295 recited the doubled amounts.   For clarity, the court is indicating the amounts of punitive damages only, as to each such claim.

FN3. For purposes of discussions of common-law punitive damages and the availability of offer of compromise interest, the court will, at times, aggregate the compensatory damage awards into a single sum.   For purposes of determining the actual common-law punitive damage award based on Janet Fleming's loss of consortium, in recognition of the fact that the claim on behalf of her late husband was the driving force for the litigation, the court will apply the last dollar (lowest percentage) rate for attorneys fees against her award, and assign all other non-taxable costs to the punitive damages award on behalf of the estate..  FN3. For purposes of discussions of common-law punitive damages and the availability of offer of compromise interest, the court will, at times, aggregate the compensatory damage awards into a single sum.   For purposes of determining the actual common-law punitive damage award based on Janet Fleming's loss of consortium, in recognition of the fact that the claim on behalf of her late husband was the driving force for the litigation, the court will apply the last dollar (lowest percentage) rate for attorneys fees against her award, and assign all other non-taxable costs to the punitive damages award on behalf of the estate.

FN4. The court's apparent reliance on some sort of dichotomy is confusing, since both statutes allow a plaintiff the option of accepting the remittitur, failing which the court's only option is to set aside the verdict and order a new trial.   What deprived the plaintiff in Civiello of an option to seek a new trial was the acknowledgment that an adjustment was required.   Plaintiff here seems to have acknowledged that an adjustment is required, and to that extent, Civiello appears to be directly applicable..  FN4. The court's apparent reliance on some sort of dichotomy is confusing, since both statutes allow a plaintiff the option of accepting the remittitur, failing which the court's only option is to set aside the verdict and order a new trial.   What deprived the plaintiff in Civiello of an option to seek a new trial was the acknowledgment that an adjustment was required.   Plaintiff here seems to have acknowledged that an adjustment is required, and to that extent, Civiello appears to be directly applicable.

FN5. “Concede” probably is too mild a word.   For purposes of the summary judgment motion, plaintiff was affirmatively arguing the absence of an agency relationship while defendant was vigorously arguing that an agency relationship existed (the necessary prerequisite for the argument being advanced)..  FN5. “Concede” probably is too mild a word.   For purposes of the summary judgment motion, plaintiff was affirmatively arguing the absence of an agency relationship while defendant was vigorously arguing that an agency relationship existed (the necessary prerequisite for the argument being advanced).

FN6. In settling a case, parties always run the risk that they may over-or under-value a claim however one might choose to measure the true value of the claim.   In this case, arguably John Dionisio “overpaid” but to the extent that that excess might constitute a windfall, the court knows of no reason in law or equity why that windfall should inure to the benefit of a defendant with respect to his obligation to pay punitive damages..  FN6. In settling a case, parties always run the risk that they may over-or under-value a claim however one might choose to measure the true value of the claim.   In this case, arguably John Dionisio “overpaid” but to the extent that that excess might constitute a windfall, the court knows of no reason in law or equity why that windfall should inure to the benefit of a defendant with respect to his obligation to pay punitive damages.

FN7. The Connecticut Unfair Trade Practices Act, § 42–110a et seq., allows for both attorneys fees and punitive damages (§ 42–110g), reflecting a legislative determination that two separate forms of enhanced damages/awards are appropriate under that statutory cause of action.   Absent a legislative indication to the contrary, the court believes that the statutory and common law notions of punitive damages, in cases such as this, should be applied independently to the compensatory damages award, rather than cumulatively..  FN7. The Connecticut Unfair Trade Practices Act, § 42–110a et seq., allows for both attorneys fees and punitive damages (§ 42–110g), reflecting a legislative determination that two separate forms of enhanced damages/awards are appropriate under that statutory cause of action.   Absent a legislative indication to the contrary, the court believes that the statutory and common law notions of punitive damages, in cases such as this, should be applied independently to the compensatory damages award, rather than cumulatively.

FN8. Although a calculation of the attorneys fees payable based on the jury award of compensatory damages would be modestly lower, there is no dispute but that this is the amount actually paid in connection with the settlement which, as a practical matter, represented all compensatory damages actually received..  FN8. Although a calculation of the attorneys fees payable based on the jury award of compensatory damages would be modestly lower, there is no dispute but that this is the amount actually paid in connection with the settlement which, as a practical matter, represented all compensatory damages actually received.

FN9. The original fee agreement provided for a 10% fee on all sums recovered above $1.2 million.   The only non-speculative way to assign a portion of attorneys fees to Janet Fleming's loss of consortium claim (as a component of the settlement) would be to work from the jury's award in that regard ($30,000). 10% of the amount awarded by the jury to Janet Fleming personally results in the $3,000 figure..  FN9. The original fee agreement provided for a 10% fee on all sums recovered above $1.2 million.   The only non-speculative way to assign a portion of attorneys fees to Janet Fleming's loss of consortium claim (as a component of the settlement) would be to work from the jury's award in that regard ($30,000). 10% of the amount awarded by the jury to Janet Fleming personally results in the $3,000 figure.

Povodator, Kenneth B., J.