Fileccia v. NATIONWIDE PROP. AND CAS. INS.

• Citation: 92 Conn.App. 481,886 A.2d 461
• Decision Date: 06 December 2005
• Docket Number: No. 25974, No. 26228.
• Court: Appellate Court of Connecticut
• Parties: Sebastiano FILECCIA v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY.

886 A.2d 461

92 Conn.App. 481

Sebastiano FILECCIA v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY.

Nos. 25974, 26228.

Appellate Court of Connecticut.

Argued September 15, 2005.

Decided December 6, 2005.

Sebastiano Fileccia, pro se, the appellant-appellee (plaintiff).

Jon Berk, Hartford, with whom, on the brief, was Patty G. Swan, for the appellee-appellant (defendant).

LAVERY, C.J., and BISHOP and McLACHLAN, Js.

Opinion

LAVERY, C.J.

The plaintiff, Sebastiano Fileccia, appeals from the judgment awarding him $6148.48 in damages, rendered by the trial court following a jury trial. The defendant, Nationwide Property and Casualty Insurance Company, also has appealed from the court's judgment. In the first appeal, the plaintiff claims that the court improperly denied his motions to set aside the verdict and for additur because the damages award, which consisted of economic damages but no noneconomic damages, was inconsistent with the evidence. In the second appeal, the defendant claims that the court improperly denied its motion for judgment notwithstanding the verdict because the plaintiff failed to prove his claim for underinsured motorists benefits.¹ We agree with both of the parties' claims and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the appeals. On December 17, 1999, the plaintiff was involved in a motor vehicle accident. The plaintiff was driving northbound on Franklin Avenue in Hartford when another vehicle, traveling westbound on Standish Street, cut out in front of him and the two vehicles collided. The plaintiff sustained injuries and, thereafter, sought and received medical treatment, including physical therapy, from various providers. After receiving a settlement payment of $20,000 from the operator of the other vehicle, which, apparently, exhausted the limits of that operator's insurance coverage,² the plaintiff brought this action against the defendant, who is his insurer, seeking underinsured motorists benefits.

In his complaint, the plaintiff alleged that he had suffered multiple injuries in the accident, specifically, a sprain or strain of the lumbar spine, a pinched sciatic nerve causing pain in his left leg, multiple bodily trauma and a herniated L4-L5 disc. He alleged further that those injuries had caused him physical pain and discomfort and had negatively impacted his ability to enjoy life's activities.³

In early September, 2004, a jury trial was held at which the plaintiff and the defendant each introduced expert physician testimony regarding the plaintiff's injuries. Extensive medical records of the plaintiff also were introduced, including the results of two computerized axial tomography scans, also known as CT scans. The jury returned a verdict of $6148.48 in economic damages, an amount that represented the exact amount of the medical bills incurred by the plaintiff as a result of the 1999 accident. The jury, however, did not award any noneconomic damages for the plaintiff's alleged pain and suffering and loss of functioning.⁴

On September 9, 2004, the defendant filed a motion for judgment in its favor notwithstanding the jury's verdict. The defendant argued, in essence, that because the damages award did not exceed the amount already received by the plaintiff from the operator of the other vehicle, the plaintiff had failed to prove his claim for underinsured motorists benefits. On October 5, 2004, the plaintiff filed motions to set aside the verdict and for additur, arguing that the damages award was insufficient. The court denied both parties' motions and rendered judgment in favor of the plaintiff, awarding him the damages found by the jury. These appeals followed. Additional facts will be provided as necessary.

I

In the first appeal, the plaintiff claims that the court improperly denied his motions for additur and to set aside the jury's verdict. According to the plaintiff, the jury's award of damages, which awarded all of the economic damages he sought but no noneconomic damages, was inconsistent and contrary to the evidence. He argues additionally that crucial evidence, which the defendant claims provides an adequate basis for the jury's award, was presented to the jury in an incomplete fashion. We agree with the plaintiff and conclude that, under the circumstances of this case, the court's denial of the motions was an abuse of discretion.

We first note our standard of review. "The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.... In reviewing the action of the trial court in denying [a motion for additur and] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did." (Internal quotation marks omitted.) Mazzacane v. Elliott, 73 Conn.App. 696, 699, 812 A.2d 37 (2002).

In passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context. Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d 459 (2002). If the court "finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or [was] governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial.... The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse." (Internal quotation marks omitted.) Id., at 330, 789 A.2d 459.

Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate. Id. "In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [the Supreme Court] held that trial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law." Schroeder v. Triangulum Associates, supra, 259 Conn. at 330, 789 A.2d 459. "Under Wichers, the jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue." (Internal quotation marks omitted.) Id. "The evidential underpinnings of the verdict itself must be examined," albeit with deference to the jury's findings. Wichers v. Hatch, supra, at 189, 745 A.2d 789. "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will." (Internal quotation marks omitted.) Id.

Applying the foregoing standards, our Supreme Court has held that an award of "virtually all" of a plaintiff's claimed economic damages, with no accompanying noneconomic damages, demonstrated an inconsistency in the verdict; see Schroeder v. Triangulum Associates, supra, 259 Conn. at 332, 789 A.2d 459; although it allowed that in a different case, such an award might be proper. Id., at 334 n. 5, 789 A.2d 459. In Schroeder, the jury found the defendant liable for the costs of the plaintiff's intrusive spinal fusion surgery, but awarded nothing for the pain and permanent disability that necessarily would accompany such a procedure. Id., at 333, 789 A.2d 459. The Supreme Court concluded that the award was incongruous and held that the trial court abused its discretion in failing to set aside the verdict. Id., at 332, 789 A.2d 459.

Additionally, in several cases where jury awards of substantial economic damages with no or little accompanying noneconomic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some preexisting condition. See, e.g., Wichers v. Hatch, supra, 252 Conn. at 177, 745 A.2d 789; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004); Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). In those cases, it was held that the jury reasonably could have concluded that the prior condition was the cause of the pain alleged, rather than the tortious actions of the defendant. See Wichers v. Hatch, supra, at 189-90, 745 A.2d 789; Turner v. Pascarelli, supra, at 730, 871 A.2d 1044; Schettino v. Labarba, supra, at 449-50, 844 A.2d 923; Daigle v. Metropolitan Property & Casualty Ins. Co., supra, at 479, 760 A.2d 117. Compare Elliott v. Larson, 81 Conn.App. 468, 840 A.2d 59 (2004) (court properly granted additur when jury awarded plaintiff economic damages of all medical expenses and lost wages claimed but no noneconomic damages, and no evidence presented that preexisting condition caused plaintiff's pain). In the present case, the jury awarded the plaintiff $6148.48, an amount representing all of his medical expenses and the entire amount of economic damages sought. An itemized list of the charges comprising that total was submitted as an exhibit at trial along with corresponding invoices. The list includes, in addition to charges for the plaintiff's initial hospital visit, radiology services and doctors' visits, separate charges for physical therapy and pain medications.

The physical therapy records, which cover eighteen appointments in March through ...