Ricky Best v. Nicole Wright (2013)

MEMORANDUM OF DECISION RE MOTION FOR EXTENSION OF TIME TO REPSOND TO PLAINTIFF'S OFFER OF COMPROMISE

STATEMENT OF CASE

The defendant, Nicole Wright requests the court for an extension of time to respond to plaintiff's offer of compromise filed on November 14, 2013.   The defendant seeks forty-five days until January 29, 2014, to respond to the plaintiff's offer of compromise dated November 14, 2013 and received by the defendant on November 18, 2013.   The defendant represents in its motion that the plaintiff consents to this extension.   The matter was scheduled on this court's December 16, 2013 nonarguable short calendar.

DISCUSSION

The plaintiff filed an offer of compromise on November 14, 2013, pursuant to Practice Book § 17–14 ¹ and Connecticut General Statutes § 52–192a.   On December 2, 2013, the defendant filed a motion for extension of time to respond to the plaintiff's offer of compromise.   According to the defendant, the plaintiff does not object to the defendant's request.

Connecticut's offer of compromise statute, Connecticut General Statutes § 52–192a, provides in relevant part as follows:  “After commencement of any civil action seeking the recovery of money damages the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant 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 ․ If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled.”

The defendant in the present case, with the plaintiff's consent, in her motion for extension of time, “seeks an additional forty-five (45) days until January 29, 2014, to respond to the plaintiff's ․ offer of compromise dated November 14, 2013 and received by the defendant on November 18, 2013.”  (Def. Motion for Extension of Time, Docket Entry # 121.)   Notwithstanding the plaintiff's consent, this court is still faced with the issue of whether it has authority to extend the thirty-day time period set forth in the offer of compromise statute within which the defendant can accept the plaintiff's offer, in light of the language of the statute, which provides that the offer “shall” be considered rejected and not subject to acceptance unless refiled.

Judge Bellis in Wu v. Lockhart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 075012213 (November 7, 2008, Bellis, J.), 46 Conn. L. Rptr. 571 cogently analyzes this issue noting:  “[Section] 52–192a does not explicitly state that the thirty-day time limit is mandatory.   The court will therefore consider extra textual evidence of the meaning of the statute.   See Connecticut General Statute § 1–2z.

“As we have often stated, [d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature ․ [T]he word ‘shall’ is not dispositive on the issue of whether a statute is mandatory ․ [and] the use of the word ‘shall,’ though significant, does not invariably [create] a mandatory duty ․ The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, either it relates to a matter of substance or a matter of convenience

If it is a matter of substance, the statutory provision is mandatory.   If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.

“This court has previously held that the time limit for accepting an offer of judgment is directory.   Ellison v. Dulatre, Superior Court, judicial district of New Haven at New Haven, Docket No. 075015686 (June 12, 2008, Bellis, J.) [45 Conn. L. Rptr. 718].   Other trial courts that have addressed the issue under former § 52–192a ² are split as to whether the time limit for accepting an offer is directory or mandatory, with a slight majority holding that the time limit is directory.³  See Christoforides v. Allstate Insurance Co., Superior Court, Judicial District of Stamford, (Docket No. CV02 0190502 (August 11, 2004, Radcliffe, J.) [37 Conn. L. Rptr. 620] (extension of time granted for an additional thirty days following the completion of the plaintiff's deposition and receipt and review of cervical spine films);  McManus–Pesce v. Miller, Superior Court, Judicial District of Hartford, Docket No. CV00 0595198 (February 9, 2001, Peck, J.) [29 Conn. L. Rptr. 304] (overruling objection to acceptance of offer of judgment, where defendant had filed request for extension of time of sixty days from the filing of the plaintiff's compliance and no objection to the request was filed by the plaintiff);  Ahern v. O'Connell, 4 CSCR 185 (1989) (granting defendant's motion for extension of time of thirty days from the date of plaintiff's compliance);  Quinn v. Collins, 1 CSCR 239 (1986) (overruling plaintiff's objection to defendant's thirty-day motion for extension of time, where plaintiff had not yet filed compliance;  the extension was granted until “June 3, 1986 or twenty-three days after the plaintiffs file their full disclosure”).   But see Prims v. Ciccarelli, Superior Court, Judicial District of New Britain, Docket No. 05 50000530 (September 21, 2007, Shapiro, J.) [44 Conn. L. Rptr. 343] (denying defendant's motion for extension of time of ninety days from the plaintiff's disclosure of all expert witnesses and production of medical authorizations;  holding that the time limit is mandatory, and that the defendant presented no compelling equitable reason to excuse compliance with the mandatory time limit);  Meyers v. Troncale, Superior Court, Judicial District of New Haven, Docket No. 000439881 S (January 2, 2002, Robinson, R., J.) [31 Conn. L. Rptr. 179] (denying defendant's motion for extension of time of thirty days from the date of the plaintiff's compliance, holding that the time limit is mandatory).

“In construing § 52–192a, we first note that its purpose is to encourage pretrial settlements and consequently, to conserve judicial resources.   The strong public policy favoring the pretrial resolution of disputes ․ is substantially furthered by encouraging defendants to accept reasonable offers of judgment.  Section 52–192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement.   In other words, interest awarded under § 52–192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.

“This court again concludes that the statutory language at issue, which relates to a matter of substance, repeatedly utilizes the word ‘shall’, is accompanied by negative words which mandate that an unaccepted offer shall be considered rejected, and which imposes a penalty on a defendant who fails to accept an offer where the plaintiff recovers an amount equal or greater to the offer, is mandatory.

“The question then becomes whether compliance with the mandatory time limit can ever be excused.   The reasoning of Judge Shapiro in the Prims v. Ciccarelli case, supra, which recognizes an exception for compelling equitable reasons, is persuasive.   Judge Shapiro pointed out that the Connecticut Supreme Court, in Pedro v. Miller, 281 Conn. 112, 119 (2007), a case dealing with service of an apportionment complaint, reiterated that ‘[m]andatory time limitations ․ must be complied with absent an equitable reason for excusing compliance ․’ Judge Shapiro ultimately found no equitable reasons to excuse compliance with the statutory time limits, where the defendant argued that an extension was warranted because of new changes in the statute which were expressly made not applicable to causes of action accruing prior to October 1, 2005 such as was presented in Prims.”   Citations omitted;  internal quotation marks omitted) Wu v. Lockhart, supra, 46 Conn. L. Rptr. 793–94.

This court finds persuasive the reasoning of Judge Shapiro and Judge Bellis in Prims and Wu respectively.   In addition, the recent Supreme Court decision of Yeager v. Alvarez, 302 Conn. 772, 780–81, 31 A.3d 794 (2011), is instructive.   Although not directly on point the court held that “the Superior Court's rule-making and sanctioning authority encompasses the power to strike an offer of compromise from the record as a penalty for violation of a discovery order.   This sanction is not specifically mentioned in Practice Book § 13–14, but it falls well within the ambit of judicial power contemplated by both the court's inherent authority and the rules of practice.”  Id. In Yeager, the court applied a three-prong test first articulated in Millbrook Owners Ass'n v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001), to determine whether to use a motion to strike an offer of compromise as a discovery sanction:  “[f]irst, the order to be complied with must be reasonably clear ․ Second, the record must establish that the order was in fact violated ․ Third, the sanction imposed must be proportional to the violation.”  (Internal quotation marks omitted.)  Id., 784–85.   In construing the third prong, the court considered three factors:  “(1) the cause of the deponent's failure to respond to the posed questions, that is, whether it is due to inability rather than the willfulness, bad faith or fault of the deponent ․ (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the importance of the information requested to that party's case;  and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response to the disobedient party's conduct.”  (Internal quotation marks omitted.)  Id., 787.   Similarly in both Prims and Yu, the court's rulemaking and sanctioning authority would also encompass the power to extend the time for accepting or rejecting an offer of compromise if there are as set forth in Prims and Wu compelling “equitable reasons for excusing compliance,” namely, where a party is in violation of a discovery order.

In the present case, the defendant seeks an extension of time to respond to the plaintiff's offer of compromise for two reasons.   First, the plaintiff's deposition has not been completed and defendant needs to complete her examination of the plaintiff in order to adequately evaluate the plaintiff's claim for damages.   Second, the plaintiff claims lost earnings as a result of the subject motor vehicle accident.   The plaintiff is a self-employed electrician and owner of a security alarm business.   The defendant claims that the plaintiff did not disclose the amount of lost earnings claimed in his discovery reponses filed January 22, 2013.   On March 15, 2013, defense counsel requested the plaintiff's payroll records in support of the lost earnings claim.   According to defense counsel, plaintiff's counsel responded stating that the plaintiff was self-employed and would provide evidence that he had to hire subcontractors to perform work that he could not perform due to his injuries.   At his deposition on November 13, 2013, the plaintiff testified that he sustained lost earnings for the period November 3, 2010 to January 19, 2011.   Defendant's counsel requested certain wage earning documentation from plaintiff based on the plaintiff's deposition testimony taken on November 13, 2013.   Plaintiff advised defense counsel that he would retrieve the wage information that he kept on an office computer and that he would provide the documents to counsel for the defendant.   On the same day, counsel for the defendant sent a written request to counsel for plaintiff seeking documents in support of the plaintiff's wage loss claim and claim for impairment of earning capacity.   The plaintiff's offer of compromise was filed the very next day, on November 14, 2013.   According to the defendant, as of the filing of her motion for extension of time to respond to the plaintiff's offer of compromise, the plaintiff still had not provided the requested documentation to support his wage loss claim.   The defendant claims in order to fully evaluate the plaintiff's offer of compromise, she will need to receive and review the requested documents and complete the deposition of the plaintiff.   The plaintiff does not object to the defendant's request for extension of time to respond to his offer of compromise.   Although the plaintiff is not in violation of a court order to produce the requested documents, the court does find compelling equitable reasons in this matter to excuse compliance with the thirty-day time limit within which the defendant has to respond to the plaintiff's offer.   Accordingly, the defendant's motion for extension of time to respond to the plaintiff's offer of compromise is granted and the time for responding to the plaintiff's offer of compromise is extended forty-five days until January 29, 2014, to respond to the plaintiff's offer of compromise filed on November 14, 2013.

CONCLUSION

For the foregoing reasons, the defendant's motion for extension of time to respond to plaintiff's offer of compromise is extended to January 29, 2014.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 17–14 provides in relevant part as follows:  “After commencement of any civil action seeking the recovery of money damages ․ 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 the commencement of jury selection in a jury trial or the commencement of evidence in a court 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 ․”.  FN1. Practice Book § 17–14 provides in relevant part as follows:  “After commencement of any civil action seeking the recovery of money damages ․ 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 the commencement of jury selection in a jury trial or the commencement of evidence in a court 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 ․”

FN2. The length of time for the defendant to accept the offer was increased from thirty to sixty days by Public Act 01–71, and then decreased back to thirty days by Public Act 05–275..  FN2. The length of time for the defendant to accept the offer was increased from thirty to sixty days by Public Act 01–71, and then decreased back to thirty days by Public Act 05–275.

FN3. Since Wu v. Lockhart, reported trial decisions are still split as to the authority of the court to extend the time for response.   However, the majority of courts have found that the language is mandatory.   Dunn v. Chen, Superior Court, judicial district of Stamford Norwalk, Complex Litigation Docket at Stamford, X08CV08 5008536 (February 3, 2011, Brazzel–Massaro, J.) [51 Conn. L. Rptr. 413]..  FN3. Since Wu v. Lockhart, reported trial decisions are still split as to the authority of the court to extend the time for response.   However, the majority of courts have found that the language is mandatory.   Dunn v. Chen, Superior Court, judicial district of Stamford Norwalk, Complex Litigation Docket at Stamford, X08CV08 5008536 (February 3, 2011, Brazzel–Massaro, J.) [51 Conn. L. Rptr. 413].

Wilson, Robin L., J.