Barry v. Posi-Seal Intern., Inc.

• Decision Date: 28 May 1996
• Docket Number: No. 12101,POSI-SEAL,12101
• Citation: 672 A.2d 514,40 Conn.App. 577
• Court: Connecticut Court of Appeals
• Parties: , 11 IER Cases 978 James BARRY v.INTERNATIONAL, INC.

Page 514

672 A.2d 514

40 Conn.App. 577, 11 IER Cases 978

James BARRY v. POSI-SEAL INTERNATIONAL, INC.

No. 12101.

Appellate Court of Connecticut.

Submitted on Briefs Nov. 6, 1995.

Decided March 12, 1996.

Certification Denied May 28, 1996.

Mark R. Kravitz and Ian E. Bjorkman, New Haven, filed a brief for appellant-appellee (defendant).

Thomas B. Wilson, Harry E. Calmar, Matthew E. Auger, Hinda K. Kimmel, New London, and Susan M. Phillips, Hartford, filed a brief for appellee-appellant (plaintiff).

Before FOTI, LANDAU and SPEAR, JJ.

LANDAU, Judge.

This matter is currently before us on remand from our Supreme Court. ¹ Barry v. Posi-Seal International, Inc., 235 Conn. 901, 664 A.2d 1124 (1995). In this appeal, the defendant claims that the trial court improperly denied the defendant's motions for judgment, notwithstanding the verdict, for a new trial and for remittitur in that (1) there was insufficient evidence to support the plaintiff's front pay damage award, and (2) there was insufficient evidence to support the plaintiff's punitive damage award. In the cross appeal, the plaintiff claims that the trial court improperly reduced his punitive damage award.

The relevant facts regarding the plaintiff's employment history at Posi-Seal and events

leading to his termination are included in our original opinion. Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 3, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).

I FRONT PAY AWARD

The defendant claims that there was insufficient evidence adduced at trial to support the front pay damage award. ² He argues that the evidence failed to establish that the plaintiff had an expectation of future employment at Posi-Seal, and that the plaintiff failed to prove any actual loss of future earnings because he gained comparable employment following his termination, thereby mitigating any actual damages. In the alternative, the defendant argues that if front pay damages did exist, the evidence was insufficient to support the jury's award of $271,775. He argues that this amount was speculative and excessive because there was little or no evidence to guide the jury in its calculations.

The following additional facts are relevant to this claim. The plaintiff had been employed by the defendant for more than ten years, and was earning an hourly wage of $11.55 when he was terminated. If he had remained employed at Posi-Seal and received all possible raises, he would have been earning an hourly wage of $13.80 at the time of the trial. Although the plaintiff had considerable seniority at Posi-Seal, his continued employment there was uncertain because Posi-Seal reduced its workforce through layoffs after the plaintiff was fired. Following his discharge in August, 1988, the plaintiff worked for a contractor, except for four months, until January of 1991. ³ He then began working at the Electric Boat Division of General Dynamics Corporation (Electric Boat) where he was earning $14.21 per hour at the time of the trial.

"Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true.... It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence.... On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did...." (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn.App. 515, 528, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

"The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.... It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. ... Thus, [t]he normal rule of an employment contract is that when the employee is prevented from fully performing because the employer wrongfully fires him, the employee can recover the wages he would have earned under the contract, minus any wages which he has earned or could have earned elsewhere, and the burden of proof of the latter is on the employer." (Citations omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. at 32-33, 662 A.2d 89. Damages for future lost wages "can be awarded in actions for breach of an implied contract of employment, as long as they are limited to a reasonable time and are supported by the evidence." Id., at 33-34, 662 A.2d 89.

We have already set out in detail the facts that the jury could reasonably have "Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant.... The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption.... Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict.... Every reasonable presumption in favor of the correctness of the court's refusal to set aside the verdict as excessive should be indulged ... and its ruling will not be disturbed unless there is a clear abuse of discretion." (Citations omitted; internal quotation marks omitted.) Schnabel v. Tyler, 32 Conn.App. 704, 715-16, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994). "The size of the verdict alone does not determine whether it is excessive...." (Internal quotation marks omitted.) Id., at 721, 630 A.2d 1361.

                found.  The issue that remains to be determined is whether the jury could reasonably have concluded, on the basis of the evidence before it, that the damage attributed to future wage loss-impairment of earning capacity amounted to $271,775.  The plaintiff has, by obtaining employment elsewhere, either avoided or mitigated the loss. 4  "Normally, the determination of the extent of mitigation, if any, as it applies to future wage loss, is made by the finder of fact."  Barry v. Posi-Seal International, Inc., supra, 36 Conn.App. at 28, 647 A.2d 1031 (Foti, J., dissenting)
                

After a thorough review of the record, we conclude that the award is not supported by the evidence and shocks the sense of justice. The jury awarded damages of $271,775 to the plaintiff for future wage loss-impairment of earning capacity despite the fact that the plaintiff called no witness to testify as to the impairment of his earning capacity. To the contrary, the only evidence in the record regarding his earning capacity was that he earned more money per hour working at Electric Boat at the same type of job than he would have earned at Posi-Seal. Although there were rumors of layoffs at Electric Boat, the plaintiff failed to call any witnesses to testify regarding his job security, or any other matter related to his employment there. At both Posi-Seal and Electric Boat, the plaintiff had insurance benefits and received employer contributions into a pension fund, but he did not call any witness to testify as to the comparative value of the medical, dental, life insurance and pension benefits he received at Posi-Seal and at Electric Boat. ⁵

The plaintiff testified that compared to Posi-Seal, he was entitled to less vacation time and no sick pay at Electric Boat. He also testified that, at the time of trial, he could not work the day shift at Electric Boat as he had at Posi-Seal. There was no testimony, however, as to the value of such differences. We conclude that the evidence presented was insufficient to support any award of damages for future wage loss-impairment of earning capacity, and the front pay award must, therefore, be set aside.

II PUNITIVE DAMAGES

The defendant next claims that the trial court improperly failed to grant its motion notwithstanding the verdict as to the punitive damages award. The plaintiff, in his cross appeal, claims that the trial court improperly reduced the punitive damages award on remittitur. The following additional facts are relevant to these claims. The trial court instructed the jury that punitive damages may be awarded only for malicious and outrageous conduct, that is, actions done with a bad motive or reckless indifference to the interest of others. It further instructed the jury that the amount to be awarded as punitive damages, if any, should be reasonable attorney's fees incurred by the plaintiff. The jury returned a verdict for the plaintiff, awarding him punitive damages of $50,000. After the verdict, the court granted the defendant's motion for a remittitur, and reduced the punitive damages award to $42,017, an amount the court found was equal to the plaintiff's attorney's fees. The plaintiff accepted the remittitur.

We agree with the defendant's claim that the punitive damages award cannot stand in the absence of a verdict in the plaintiff's favor on a cause of action sounding in tort. ⁶ "Punitive damages are not ordinarily recoverable for breach of contract. Restatement, 1 Contracts § 342; 5 Corbin, Contracts § 1077; McCormick, Damages § 81. This is so because, as lucidly explained by Professor Corbin in the passage cited, punitive or...