Angelica Ramirez–Thigpenn v. Allstate Insurance Company (2013)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT AND MOTION TO REDUCE THE VERDICT

The plaintiff instituted the present action seeking to recover monetary damages for personal injuries claimed to have been sustained when she was involved in a motor vehicle accident while a passenger that was struck in the rear by another vehicle.   The accident took place on April 26, 2010 on Route I–95 in Westport, Connecticut.   The parties agree that the plaintiff had received the sum of $25,000 from the insurance carrier for the driver of the other vehicle and suit was brought against the Allstate Insurance Company under the underinsured motorists provisions of a policy of insurance issued by it.   The jury returned a verdict in favor of the plaintiff for the economic damages constituting the medical bills in the amount of $16,033.27 and zero for non-economic damages.   The plaintiff has now moved to set aside that verdict and requests an additur from the court.   The defendant has moved to reduce the verdict on the grounds that the plaintiff had received more on behalf of the operator of the other vehicle than she received from the jury verdict.

“A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence.   A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.”  (Internal quotation marks omitted.)  Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001).  “A verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury.   The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled to support the verdict.   Only under the most compelling circumstances may the court set aside the jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have the issues of facts decided by a jury.   The amount of damages to be awarded is a matter particularly within the scope of the jury.”  Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541–41 (2002).  “A jury is not obligated to believe that every injury causes pain or the pain alleged ․ The trier (of fact) is free to accept or to reject, in whole or in part, the evidence offered by either party.   The weight to be accorded to the testimony is a matter for the jury to determine.”   (Citations and internal quotations marks omitted.)  Lindman v. Nugent, 59 Conn.App. 43, 46 (2000).

Our courts have determined that there is no per se rule that an award of some economic damages requires an award of economic damages.   Indeed the court has stated that such situations must be determined on a case by case analysis.   Schroeder v. Triangulum Associates, 259 Conn. 325, 230 (2002);  Wichers v. Hatch, 252 Conn. 174, 188 (2000);  see also Gambardella v. Feldman, 294 Conn. 482 (2010) (C.L.J. Jan. 19, 2010).  “Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his burden of proof of the issue.   That decision should be made, not on the assumption of the jury made a mistake, but rather, on the supposition that the jury did exactly what it intended to do.”   Wichers v. Hatch, supra, 188–89;  see also such cases as Silva v. Walgreen, 120 Conn.App. 544 (2010);  Smith v. Lefebre, 92 Conn.App. 417 (2005);  Schettino v. Labarba, 82 Conn.App. 445 (2004).

The jury could reasonably have found that despite the fact that the accident occurred on the interstate highway there was no visible damage to the vehicle in which the plaintiff was a passenger.   The plaintiff was working at the time of the accident and there was no claim made for loss of wages and the plaintiff testified that her body did not hit anything in the motor vehicle as a result of the accident.   There was no reports in the ambulance, hospital or medical records concerning the existence of any bruises, cuts, scrapes or swellings.   There was testimony concerning a prior injury sustained by the plaintiff, as well as a subsequent injury, all x-rays, MRIs and CAT scans were negative and did not reveal an existence of any cause of injury.   The issue was therefore presented as to where there are complaints of pain, and treatment by medical providers because of those complaints, the jury is required to believe that the pain exists and is related to the motor vehicle accident which the plaintiff claims to be the cause of the pain.  “The jurors are free to reject even uncontradicted testimony if they do not find it credible.”  State v. Smith, 135 Conn.App. 51, fn. 6 (1994).

When the jury announced its verdict, counsel for the plaintiff requested the court to return the jury to the jury room for reconsideration.   The court declined that request.   While the court is free to return a jury for deliberations to reconsider their verdict, there is no requirement that the court do so where there is a basis for the jury's verdict in the first instance.   The jury was not required to believe that the plaintiff sustained injuries as a result of motor vehicle accident but was free to award economic damages for the medical bills incurred as a result of her complaints to the medical providers.   Accordingly, the motion to set aside the verdict is denied.

The defendant has also filed a motion (# 114) to reduce the verdict on the grounds that the plaintiff had received more money from the other vehicle than was awarded by the jury.   The plaintiff has filed an objection to that motion asserting that the defendant filed a motion more than 10 days after the verdict was accepted and therefore violates the provisions of Practice Book § 16–35 which requires a motion for reduction of a verdict due to collateral sources to be filed within the 10–day period.   The amounts received from the tortfeasor are not collateral sources but deal with recovery under the provisions of the policy of insurance issued by the defendant. $25,000 payment made on behalf of the tortfeasor was a stipulation made at the beginning of the trial everyone was aware of the fact that in order for the plaintiff to recover funds against the Allstate Insurance Company the verdict would have to exceed $25,000.00.   Accordingly, judgment may enter in favor of the defendant.   See Fahey v. Safco, 49 Conn.App. 306 (1998).

RUSH, J.T.R.

Rush, William B., J.T.R.