Brennan v. Burger King Corp.

• Decision Date: 24 September 1997
• Docket Number: No. 15770,15770
• Citation: 698 A.2d 364,46 Conn.App. 76
• Court: Connecticut Court of Appeals
• Parties: Edward BRENNAN v. BURGER KING CORPORATION.

Page 364

698 A.2d 364

46 Conn.App. 76

Edward BRENNAN v. BURGER KING CORPORATION.

No. 15770.

Appellate Court of Connecticut.

Argued Dec. 12, 1996.

Decided Aug. 5, 1997.

Certification Granted Limited to the Following Issue Sept. 24, 1997.

James P. Brennan, Waterbury, for appellant (defendant).

Kie N. Westby, Thomaston, for appellee (plaintiff).

Before SCHALLER, FREDERICK A. FREEDMAN and DALY, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff in this negligence action. The defendant claims that the trial court improperly (1) refused to set aside the verdict for damages as it pertains to future medical expenses, (2) calculated the amount of premiums paid by the plaintiff to secure his right to collateral source benefits pursuant to General Statutes § 52-225a(c), and (3) refused to reduce the award for economic damages by the amount paid but not recoverable by Medicare. We affirm the judgment in part and reverse it in part.

The jury reasonably could have found the following facts. On February 14, 1994, at approximately 1:15 p.m., the plaintiff visited the defendant's restaurant in Watertown. After finishing his meal and leaving the building, the plaintiff slipped and fell on an icy portion of the restaurant parking lot. As a result of the fall, the plaintiff sustained a fracture of his right femur, requiring surgery and extensive rehabilitation.

Richard Matza, a physician, testified for the plaintiff as an expert witness. Matza performed the surgery on the plaintiff's leg after his fall and continued to see the plaintiff for the injury until early 1995. Because of the nature of the plaintiff's injuries, Matza had to place a number of plates, screws and bands in the plaintiff's leg to hold the bone fragments together. Although the plaintiff already had a 25 percent permanent disability in his right leg due to knee replacement surgery in 1991, his disability increased 20 percent as a result of the injuries sustained in the 1994 fall. Because Matza joined the bone together where the fracture occurred, the plaintiff's right leg is now two inches shorter than his left leg. The plaintiff will continue to suffer a loss of strength in the right leg, a decrease in mobility and flexibility in the right leg, and balance and coordination problems. As a result of the injury, the plaintiff will have difficulty performing daily activities and will be unsteady and at risk when walking. According to Matza, there was a 15 percent chance that the plaintiff would require future surgery to remove the hardware placed in his leg. Matza was never asked, nor did he testify, as to what any future care might cost.

The jury awarded the plaintiff a total of $210,000, including $43,848.33 for past economic damages, $40,000 for future economic damages, $84,848.67 for past noneconomic damages, and $41,303 for future noneconomic damages. The jury found that the plaintiff was 5 percent contributorily negligent and deducted $10,500 from the award, thereby reducing it to $199,500. Thereafter, the defendant filed a motion for remittitur of the portion of the verdict for future economic damages. The defendant argued that there was insufficient evidence to support the jury's award for future economic damages. The trial court denied the motion for remittitur. The trial court, however, granted the defendant's motion for a hearing concerning the plaintiff's collateral sources and, pursuant to General Statutes 52-225a, reduced the award by $11,156.79, rendering a corrected judgment in the amount of $188,343.21. This appeal followed.

I

The defendant claims first that the trial court improperly denied its motion for remittitur seeking to vacate the jury's award for future economic damages. The defendant claims that the evidence introduced by the plaintiff to prove future economic damages did not provide the jury with a sufficient basis to arrive at an award for such damages. We are unpersuaded.

" '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.' Wochek v. Foley, 193 Conn. 582, 586, 477 A.2d 1015 (1984)." Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict.... The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness." (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

"It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities.... Consequently, as [our Supreme Court] stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971), as to future medical expenses, the jury's determination must be based upon an estimate of reasonable probabilities, not possibilities. Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, [221 Conn. 473, 481, 604 A.2d 1304 (1992) ]. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses ... [i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date ... when there is also a degree of medical certainty that future medical expenses will be necessary." (Citations omitted; internal quotation marks omitted.) Marchetti v. Ramirez 240 Conn. 49, 54-55, 688 A.2d 1325 (1997).

In this case, the plaintiff's medical expert, Matza, testified that the degree of permanent disability in the plaintiff's right leg increased 20 percent as result of the injuries he sustained from the fall in 1994. Matza further testified that there was a reasonable medical probability that the plaintiff would incur future medical expenses as a result of his injuries. He testified that there was a 15 percent probability that the hardware placed in the plaintiff's leg would have to be removed, and that this procedure would require further surgery and hospitalization. Matza testified that there would be medical expenses involved in the treatment. Evidence was introduced at trial to establish the medical expenses that the plaintiff had incurred by 1995, which included the cost for surgery and rehabilitation. There was also testimony by Matza that the plaintiff will continue to suffer from a loss of strength, mobility and motion, and will have increased problems with balance and coordination. He further testified that these conditions will increase the plaintiff's susceptibility to accidents and injuries while walking or performing other daily activities. Viewing the record as a whole in light of the foregoing standards, we conclude that the evidence was sufficient to provide the jury with a basis for an award for future medical expenses and, thus, the jury's award was appropriate.

II

The defendant claims next that the trial court improperly calculated the amount of premiums paid by the plaintiff to secure his right to collateral source benefits pursuant to § 52-225a(c). ¹ We agree.

General Statutes §§ 52-225a through 52-225c provide that when a trier of fact makes an award of damages to compensate a claimant, the economic damages shall be reduced by an amount equal to the total amount of collateral sources paid to the claimant less the total amount paid to secure his right to any collateral source benefit that he received. At trial, the plaintiff claimed that the total amount of insurance premiums paid to secure his right to the collateral source benefit pursuant to § 52-225c should be calculated from 1966, the year in which he first injured his right knee. The defendant argued that the correct date from which to calculate the premiums paid by the plaintiff should be 1994, the year in which the slip and fall incident at issue here occurred. The trial court concluded that the date from which to calculate the premiums was 1991, the year in which the plaintiff underwent knee replacement surgery on his right leg.

"In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.... It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation.... [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987)." (Citations omitted; internal quotation marks omitted.) Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 20, 658 A.2d 83 (1995). We note that in enacting § 52-225a(c) the legislature abolished the collateral source rule, which had its origin in the common law. It is a rule of statutory construction that statutes in derogation of the common law should be strictly construed so as not to extend, modify or enlarge its provisions beyond its scope by the mechanics of statutory construction. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289, 627 A.2d 1288 (1993); Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

We interpret § 52-225a to mean that the plaintiff is entitled to a credit for premiums paid to secure his right to collateral source benefits starting with the initial date of the insurance policy period during which the injury occurred. The alternative presented by the defendant fails to take into account the practical realities of...