Daigle v. Metropolitan Property & Casualty Ins. Co., (AC 19529)

• Decision Date: 17 October 2000
• Docket Number: (AC 19529)
• Citation: 760 A.2d 117,60 Conn. App. 465
• Court: Connecticut Court of Appeals
• Parties: EDWARD DAIGLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

60 Conn. App. 465

760 A.2d 117

EDWARD DAIGLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

(AC 19529)

Appellate Court of Connecticut.

Argued June 12, 2000.

Officially released October 17, 2000.

Hennessy, Pellegrino and Daly, Js.

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

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

Opinion

PELLEGRINO, J.

The plaintiff, Edward Daigle, appeals from the judgment of the trial court awarding him damages in a personal injury action. On appeal, he claims that the court improperly (1) granted the defendant's motion in limine precluding the introduction of evidence of his lost wages and lost earning capacity, (2) denied his motion for a mistrial on the basis of an inadvertent reference to the word "handcuff" by the defendant's counsel during closing argument to the jury, (3) awarded him economic damages¹ reduced to the percentage of his disability caused by the motor vehicle accident at issue, (4) failed to instruct the jury that the defendant's counsel made a misleading argument regarding apportionment of economic damages and (5) denied his motion to set aside the verdict and for additur on the basis of the jury's failure to award him future noneconomic damages. We affirm the judgment of the trial court.

The following facts are relevant to a resolution of this appeal. 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 Metropolitan Property & Casualty Insurance Company, his insurance carrier and the defendant in this action, 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,² awarded the plaintiff $8000. 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.³

After the jury had been charged, the plaintiff filed a motion for a mistrial on the ground that the defendant's counsel had improperly mentioned the word "handcuff" during his closing argument. The motion was denied. The plaintiff's subsequent motion to set aside the verdict as to the damage award and for additur also was denied. This appeal from the judgment of the trial court awarding the plaintiff damages in the 1993 lawsuit followed.

I

The plaintiff first claims that the court improperly granted the defendant's motion in limine precluding the introduction of his income tax records as documentary evidence to substantiate his claim of lost wages and lost earning capacity. He contends that he was a self-employed general contractor at the time of the accidents and that due to his injuries, he was compelled to hire other people to perform work that he alone previously had performed.

"The standard to be used to review a trial court's decision on the relevance and admissibility of evidence is abuse of discretion." (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 718, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000). It is a well established principle of law that the trial court has wide discretion to determine the relevance of evidence and that the court's rulings will not be disturbed on appellate review absent abuse of that discretion. See State v. Mann, 56 Conn. App. 856, 857, 747 A.2d 19, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000); see also Baughman v. Collins, 56 Conn. App. 34, 35, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000). "Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 257, 741 A.2d 295 (1999), cert. denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000).

In the present case, the plaintiff offered 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. "In assessing damages in a tort action, the trier is not concerned with possibilities but with reasonable probabilities." (Internal quotation marks omitted.) Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 360, 374 A.2d 1047 (1977). "A party who seeks to recover damages ... [on the ground of lost earnings or earning capacity] must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss." (Internal quotation marks omitted.) Bombero v. Marchionne, 11 Conn. App. 485, 489, 528 A.2d 396, cert. denied, 205 Conn. 801, 529 A.2d 719 (1987). Here, because the plaintiffs 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. See id. 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. See Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 314, 714 A.2d 686 (1998).

II

The plaintiff next claims that the court improperly denied his motion for a mistrial on the basis of an inadvertent use of the word "handcuff" by the defendant's counsel, despite the court's prior instruction that the parties not mention the word "handcuff" in the presence of the jury. The plaintiff concedes that the reference was unintentional, but argues that it irreparably compromised the credibility of his testimony at trial.

The following additional facts are necessary for a resolution of this claim. In 1991, the plaintiff was arrested and his wrist was injured as a result of being handcuffed. He subsequently brought a complaint against the police, and a deposition in that action was used in the present case to document the preexisting injury to his wrist. Thereafter, the court ruled that neither party would be permitted to mention the word "handcuff "in discussing the plaintiffs previous wrist injury because of potential prejudicial inferences. The defendant's counsel, however, inadvertently mentioned the word "handcuff" in his closing remarks. The plaintiffs attorney moved for a mistrial, claiming that use of the word had irreparably prejudiced his client, but the court, stating that it did not believe that the jury would be tainted by what it characterized as a slip of the tongue, denied the plaintiffs motion. Nonetheless, before accepting the verdict, the court polled the jury members to determine whether the "handcuff" remark had entered into their deliberations, and they replied that it had not.

"In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999).

In the present case, the plaintiff concedes that the defendant's counsel did not mention the word "handcuff" intentionally. The transcripts also disclose that the error was a minor slip which, in the context of the entire argument, was unlikely to leave a lasting impression on the jury. Furthermore, to satisfy itself, as well as the parties, that the plaintiff had not been prejudiced, the court polled the jury members prior to accepting the verdict to determine if the remark had influenced their deliberations, and they replied that it had not. Accordingly, we conclude that inadvertent use of the word "handcuff" by the defendant's counsel did not compromise the plaintiffs credibility and that the court did not abuse its discretion in denying the plaintiffs motion for a mistrial. See id., 535-36.

III

The plaintiff next claims that the jury improperly applied the law by reducing the award of economic damages to the percentage of his disability caused by the 1993 accident. He claims that the defendant's counsel proposed a mathematical formula in his closing argument that the jury improperly used to calculate the award. Because this claim was not raised at trial, the plaintiff seeks review pursuant to the plain error doctrine. See Practice Book § 60-5.

The following additional facts are necessary to our resolution of the plaintiffs claim. At trial, the defense offered the deposition testimony of Michael Halperin, an orthopedic surgeon who had treated the plaintiff and had performed back surgery on him after the accidents. Halperin originally issued a 14 percent permanent disability rating to the plaintiff of which he attributed one quarter to the 1993 accident, one quarter to the 1995 accident and the remaining one half to a preexisting back condition. Halperin later amended his...