Daigle v. Metropolitan Property & Casualty Ins. Co.

• Decision Date: 07 August 2001
• Docket Number: (SC 16435)
• Citation: 257 Conn. 359,777 A.2d 681
• Parties: EDWARD DAIGLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
• Court: Connecticut Supreme Court

257 Conn. 359

777 A.2d 681

EDWARD DAIGLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

(SC 16435)

Supreme Court of Connecticut.

Argued June 1, 2001.

Officially released August 7, 2001.

SULLIVAN, C. J., and BORDEN, NORCOTT, KATZ and ZARELLA, JS.

Ronald F. Ochsner, for the appellant (plaintiff).

D. Lincoln Woodard, for the appellee (defendant).

Opinion

ZARELLA, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court correctly granted the motion in limine of the defendant, Metropolitan Property and Casualty Insurance Company, thereby precluding the plaintiff, Edward Daigle, from introducing certain of his income tax returns into evidence in order to establish his damages claim.

The Appellate Court set forth the following facts and relevant procedural background. "The plaintiff was involved in two separate automobile accidents that occurred on June 5, 1993, and September 16, 1995. Thereafter, he commenced two separate actions against [the defendant], his insurance carrier ... to recover damages for injuries to his neck and back stemming from the accidents. The first action was brought on an underinsured motorist theory, the second, on an uninsured motorist theory. The defendant admitted that the tortfeasors were negligent, but contested the causal relationship between the accidents and the injuries claimed, as well as their extent, there being evidence that the plaintiff suffered from a preexisting condition and a prior injury that the accidents merely aggravated.

"Because of the identity of the parties and the similarity of the injuries, the actions were consolidated for trial. Liability was conceded by the defendant, and jury verdicts for the plaintiff on the issue of damages were rendered in both cases. The verdict in connection with the 1993 accident, which is the subject of the present appeal, awarded the plaintiff $800O. Of that amount, $6000 was for past economic damages and $2000 was for past noneconomic damages. No award was made for future noneconomic damages despite evidence from the plaintiffs physician that, following the accidents, he suffered from a permanent partial disability to his back of 14 percent." Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 467-68, 760 A.2d 117 (2000).

Prior to trial, the trial court conducted a hearing on the defendant's motion in limine that sought, inter alia, to preclude the plaintiff from introducing any evidence of lost wages or lost future earning capacity. The defendant sought the exclusion of this evidence based on the plaintiffs lack of disclosure of any evidence to support his claim other than the disclosure of his income tax returns.¹ At the hearing on the motion in limine, the plaintiff did not seek to have his income tax returns entered into the record for identification purposes.² The trial court granted the defendant's motion with respect to the exclusion of evidence of lost wages and lost future earning capacity³ and, thereafter, rendered judgment in accordance with the jury verdict.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly granted the defendant's motion in limine. The Appellate Court rejected the plaintiffs claim, reasoning that "the plaintiff offered [income] tax returns to substantiate the increase in his business expenses, yet the records he sought to introduce also showed an increase in his net income for each year after the accidents.... [B]ecause the plaintiffs [income] tax returns showed an increase in net income after the accidents, they could not provide a basis for a reasonable estimate by the jury of an alleged loss in wages or earning capacity due to his injuries.... We therefore conclude that the plaintiffs claim was not substantiated by the evidence he sought to introduce and that the trial court did not abuse its discretion by granting the defendant's motion in limine." (Citations omitted; emphasis in original.) Id, 469-7O. This certified appeal followed.⁴

On appeal to this court, the plaintiff claims that the Appellate Court improperly concluded that the trial court properly had granted the defendant's motion in limine. We conclude that, because the plaintiff did not enter into the record for identification purposes the income tax returns that he had intended to offer as proof, we cannot properly review his claim.⁵` The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 61-1O.⁶ "It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-1O.... The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal.... Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did...." (Citations omitted; internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 95-96, 772 A.2d 722 (2001). "The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review." Kraus v. Newton, 211 Conn. 191, 194-95, 558 A.2d 240 (1989); accord Esaw v. Friedman, 217 Conn. 553, 566, 586 A.2d 1164 (1991).

The plaintiff argues that his income tax returns were crucial to demonstrate future economic damages and lost earning capacity and, therefore, that the trial court should not have excluded them. The plaintiff did not, however, seek to have his income tax returns entered into the record for identification purposes. This court's role is not to divine the possibilities, but to review the claims and exhibits presented to the trial court. In the present case, the record is deficient in the absence of the income tax returns that form the basis of the plaintiffs claim. Inasmuch as the plaintiff failed to make his income tax returns part of the record, we are left to speculate as to the factual predicates for his argument. Cf. Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn. App. 471, 480, 767 A.2d 118 (2001).

Accordingly, we conclude that the record is incomplete and, therefore, we cannot properly review the plaintiffs claim.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1. The following colloquy occurred during the hearing on the motion in limine on March 10, 1999:

"[D. Lincoln] Woodard [Defense Counsel]: Your Honor, with respect to the lost wages, this case now has been pending since 1995 .... There was the standard production sent out responded as to the lost wage information employment records. The response was that that information was to be provided. We did get IRS [Internal Revenue Service] records and authorizations to obtain records.... [B]ut there [were] no employment records ever given. When we got to the point of the deposition in August of 1997, I reserved my rights at that time with respect to the lost wages and earning capacity claim. I questioned [the plaintiff] ... and his response was essentially that he had no records ... other than the IRS records. There [were] no records to this effect with respect to any lost wages or earning capacity.

"There's a...