Bennett v. Automobile Ins. Co. of Hartford

• Decision Date: 24 August 1993
• Docket Number: No. 11636,11636
• Citation: 32 Conn.App. 617,630 A.2d 149
• Court: Connecticut Court of Appeals
• Parties: John BENNETT et al. v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD.

Page 149

630 A.2d 149

32 Conn.App. 617

John BENNETT et al. v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD.

No. 11636.

Appellate Court of Connecticut.

Argued April 29, 1993.

Decided Aug. 24, 1993.

David N. Rosen, New Haven, for appellant (plaintiff Lori Misura).

Peter T. Fay, Watertown, for appellee (defendant).

Before LAVERY, LANDAU and SCHALLER, JJ.

LANDAU, Judge.

This is an appeal from the judgment of the trial court challenging that court's granting of the defendant Automobile Insurance Company of Hartford's motion to open the judgment and for remittitur. On appeal, the plaintiff Lori Misura claims that the trial court improperly (1) opened the judgment, and (2) ordered a remittitur in the amount of the jury verdict. We reverse the judgment of the trial court on the second claim. ¹

The following facts are pertinent to this appeal. The plaintiffs, John Bennett and Lori Misura, were injured in an automobile accident with an unidentified hit-and-run driver. The plaintiffs brought an action against the insurer for uninsured motorist benefits pursuant to Misura's insurance policy with the defendant. The insurance policy's uninsured motorist clause provided for a total coverage of $100,000. Prior to trial, Bennett signed a "Release of all Claims" and filed a withdrawal of his claim in the trial court in consideration of payment of $37,115. Misura elected to go to trial on her claim.

The plaintiffs' initial complaint identified the insurance policy and the policy limit of $100,000 for uninsured motorist coverage. The defendant filed a request to revise, requesting that the reference to the $100,000 policy limit be deleted from the complaint so as not to prejudice the jury. Misura complied with this request. The jury returned a verdict for Misura in the amount of $92,000. The verdict was accepted by the court on May 6, 1992, and a judgment was rendered at that time. On May 28, 1992, pursuant to Practice Book §§ 325 ² [32 Conn.App. 619] and 326 ³ and General Statutes § 52-228, ⁴ the defendant filed motions to open the judgment and for remittitur. The court heard and granted those motions on July 7, 1992. The trial court held that because the total of the defendant's payment to Bennett and Misura's verdict of $92,000 was greater than the amount of coverage provided by the policy, the defendant was entitled to a remittitur to bring the total award within the policy limit. ⁵ This appeal ensued.

The gravamen of Misura's claim is that the absence of any reference to the $100,000 policy limit in the complaint and the defendant's failure to plead the policy limit as a special defense result in the policy limit's not being an issue before the jury and precludes the defendant from later complaining that the verdict exceeded that limit. We agree.

"A complaint must fairly put the defendant on notice of the claims ... against him.... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.... Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury." (Citations omitted.) Farrell v. St. Vincent's Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987). In the original complaint, the plaintiffs pleaded the $100,000 policy limit. In accordance with the defendant's request to revise, however, Misura amended the complaint to delete all references to the policy limit. "The filing of [an] amended pleading is a withdrawal of the original pleading." Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981). In the amended complaint that was properly before the court and the jury, there was no reference to the policy limit and, that issue not being before the court or jury, the plaintiff is not constrained by that fact. The original complaint is merely a part of the history of the case. Pope v. Watertown, 136 Conn. 437, 438, 72 A.2d 235 (1951). Therefore, the complaint, by itself, will not limit the damages to $100,000.

Misura also argues that the defendant had the opportunity to claim the benefit of the $100,000 policy limit by pleading it as a special defense and its failure to do so precludes it from claiming the benefit of the policy limits posttrial. We agree.

Practice Book § 164 provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own." Decisions of the courts of this state have held that this list is not exhaustive. In DuBose v. Carabetta, 161 Conn. 254, 260, 287 A.2d 357 (1971), our Supreme Court stated that "[t]he inherent difficulty in drawing the line between what can be shown under a general denial and what must be specially pleaded is recognized by 1 Stephenson, Conn.Civ.Proc. (2d Ed.) § 126(g). The rules specify certain matters which must be specially pleaded and the annotations provide further aid [Practice Book § 164 and annotations]. The pleader must be as familiar with the scope of denials of today as his [or her] grandfather was with the scope of the general issue at common law. The problem is not one peculiar to Connecticut procedure but exists even under procedures which have deliberately reduced the significance of pleading." (Internal quotation marks omitted.) Id.

Thus, in the context of insurance litigation, our courts have held that certain defenses must be specially pleaded. See, e.g., Sortito v. Prudential Ins. Co., 108 Conn. 163, 168, 142 A. 808 (1928) (breaches of condition); Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 299-300, 180 A. 458 (1935) (exceptions or exclusions in policy). In Fogarty v. Fidelity & Casualty Co., supra, at 298, 180 A. 458, the plaintiff was driving his truck "when a sheet of flame burst out of the cab without warning," causing the plaintiff to lose control of the vehicle and crash. The trial court held that the accident was caused by the fire. Therefore, because loss by fire was excluded in the policy, the defendant was not liable to the plaintiff for damages under the policy. On appeal, our Supreme Court noted that the "complaint alleged that the truck was insured against loss or damage arising out of accidental collision or upset 'however caused'...." Id., at 299, 180 A. 458. The Fogarty court held that "[i]f the defendant [insurance company] intended to claim that the loss was within the provision excluding damage by fire, it should have specially pleaded to that effect ... it did not do so and, a claim having been made to the trial court that thereby it was precluded from taking advantage of the limitation contained in the clause, the effect of the clause may be eliminated from our consideration." (Citations omitted.) Id., at 299-300, 180 A. 458.

The same rationale applies here. The operative complaint alleges that the defendant provided an insurance policy to Misura entitling her to "payment of any sums she was legally entitled to recover, on account of personal injuries sustained while occupying this automobile, from any motor vehicle operated by a hit-and-run driver whose identity cannot be [ascertained]." All references to the policy limit were deleted from the complaint, and, if the defendant wanted to take advantage of the $100,000 limit in the policy, it should have pleaded it as a special defense. ⁶ Its failure to do so precludes it from "taking advantage of the limitation contained in the [policy.]" Fogarty v. Fidelity & Casualty Co., supra.

The defendant argues that the trial court properly reduced the damages award to reflect the release signed by Bennett in consideration of $37,115 and, further, that General Statutes § 38a-336 ⁷ limits the total amount of the recovery to the limit of the insured's uninsured motorist coverage. These arguments are inapplicable in this case.

At the hearing on the motion to open and for remittitur, the defendant alleged, for the first time, that it was entitled to a limitation on the award to the plaintiff reflecting the payment of $37,115 to Bennett in exchange for his release of all claims against the defendant. The court heard evidence, over the objection of Misura, and granted these motions. Misura argues that the question of whether payment was made is a question of fact to be determined by the jury and, because payment was disputed, the trial court invaded the province of the jury by hearing posttrial evidence regarding the defendant's claim of payment to Bennett.

It is the province of the jury to decide questions of fact. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979). It may accept or reject the testimony of witnesses and determine the weight to be given the evidence. Eagar v. Barron, 2 Conn.App. 468, 471, 480 A.2d 576 (1984). The assessment of damages is peculiarly within the province of the jury. Further, "a defense of payment, even though nonpayment is alleged by the plaintiff, must be specially pleaded. Practice Book § 164. To the extent that the defendant's claim of payment was a defense, it properly should have been pleaded as such." Elis v. Rogers, 15 Conn.App. 362, 366, 544 A.2d 663 (1988). "[T]he failure to raise a special defense is waived [however] when evidence comes in without objection." Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987).

Here, Misura properly objected to the...