Fahey v. Safeco Ins. Co. of America, 17036

• Citation: 49 Conn.App. 306,714 A.2d 686
• Decision Date: 07 July 1998
• Docket Number: No. 17036,17036
• Court: Appellate Court of Connecticut
• Parties: John FAHEY v. SAFECO INSURANCE COMPANY OF AMERICA.

Page 686

714 A.2d 686

49 Conn.App. 306

John FAHEY v. SAFECO INSURANCE COMPANY OF AMERICA.

No. 17036.

Appellate Court of Connecticut.

Argued March 19, 1998.

Decided July 7, 1998.

Robert R. Sheldon, with whom, on the brief, were Douglas P. Mahoney and Frank A. Bailey, Bridgeport, for appellant (plaintiff).

Kevin R. Murphy, Bridgeport, with whom, on the brief, was Robert J. Sickinger, Litchfield, for appellee (defendant).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and LANDAU, JJ.

LAVERY, Judge.

The plaintiff, John Fahey, appeals from the trial court's judgment in favor of the defendant, Safeco Insurance Company of America, in an action seeking the recovery of underinsured motorist benefits. The plaintiff claims that the trial court improperly (1) rendered judgment in favor of the defendant, (2) prevented the plaintiff from presenting evidence of the insurance contract to the jury, (3) opened the evidence following acceptance of the jury's verdict, (4) interpreted the insurance policy, and (5) precluded expert testimony concerning the risk of future surgery. We disagree and affirm the judgment of the trial court.

The following facts are undisputed. On April 25, 1993, the plaintiff was injured in a motor vehicle collision caused by Helen Super in Trumbull. The plaintiff settled his claim with Super for $100,000, the full extent of her automobile insurance coverage. The plaintiff then sought underinsured motorist benefits under an automobile liability insurance policy he had with the defendant. The liability of the tortfeasor was admitted by the defendant, and the case was tried before a jury on the issue of damages. In his closing argument, the plaintiff argued to the jury that their role was to determine the plaintiff's fair, just and reasonable damages, and that the judge would later make adjustments and reductions to the verdict. The court instructed the jury that their task was to award the plaintiff, if they found in his favor, compensation "from dollar one" to such an amount that would compensate him fully as fair, just and reasonable damages. The court also instructed the jury that the court would deduct the amount of any compensation previously received by the plaintiff from the amount of any verdict. The jury returned a verdict for the plaintiff in the amount of $90,064.77.

The court accepted the verdict and the defendant moved for a judgment based on the pleadings and the amount of the jury's verdict. The defendant also filed a motion to reopen the evidence in order to submit a copy of the insurance policy to the court, which was granted. The court rendered judgment in favor of the defendant. Because of the $100,000 recovery by the plaintiff, the court concluded that he had already received compensation in excess of the value of his damages and was, therefore, not entitled to underinsured motorist benefits. This appeal followed.

I

The plaintiff's first claim is that the trial court improperly rendered judgment in favor of the defendant. Specifically, the plaintiff argues that because the defendant failed to request that the jury's verdict be set aside or that a remittitur be granted, there was no basis for the court's decision. Further, the plaintiff argues that the court's decision relied on information that was not before the jury and that this usurped the fact-finding function of the jury.

The defendant argues that the trial court properly rendered judgment in its favor because (1) the plaintiff failed to sustain his burden of proving that he was entitled to recover more than the $100,000 he had already received from the tortfeasor, (2) the judge properly assigned to the jury the fact-finding function of determining the amount of the plaintiff's damages, and (3) a judgment in favor of the plaintiff in the amount of the jury verdict would have resulted in an impermissible double recovery. We agree with the defendant.

This case involves an attempt by the plaintiff to recover underinsured motorist benefits from the defendant. General Statutes § 38a-336 (b) "requires that an insurer pay its insured up to the limits of the policy's [underinsured] motorist coverage after the liability limits of all other applicable insurance policies have been exhausted by payment of judgments or settlements. This statutory subsection, together with the other provisions of the [underinsured] motorist statute, § 38a-336, reflects the public policy of this state to afford a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the [underinsured] motorist had maintained an adequate policy of liability insurance. Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982)." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 800-801, 646 A.2d 806 (1994).

The purpose of underinsured motorist coverage "is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile." (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305, 673 A.2d 474 (1996), quoting Travelers Ins. Co. v. Kulla, 216 Conn. 390, 398, 579 A.2d 525 (1990). It has also been stated that "the purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured." (Emphasis in original.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A.2d 964 (1997). " '[U]nderinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor....' " Florestal v. Government Employees Ins. Co., supra, at 310, 673 A.2d 474, quoting Smith v. Safeco Ins. Co. of America, supra, 225 Conn. at 573, 624 A.2d 892.

General Statutes § 38a-335 (c), which sets forth minimum policy provisions for automobile liability policies, provides in part that "[i]n no event shall any person be entitled to receive duplicate payments for the same element of loss." "It is a time-honored rule that an injured party is entitled to full recovery only once for the harm suffered. Peck v. Jacquemin, 196 Conn. 53, 70 n. 19, 491 A.2d 1043 (1985)." Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993). "The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste. See, e.g., 4 G. Palmer, Law of Restitution (1978 & Sup.1997) § 23.15, p. 437." (Emphasis in original.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. at 23-24, 699 A.2d 964. "An insured may not recover double payment of damages under overlapping insurance coverage." Buell v. American Universal Ins. Co., supra, at 775, 621 A.2d 262.

Prior to trial, the court granted the defendant's motion in limine and thereby excluded from the jury evidence of the insurance policy, its limits and the plaintiff's recovery from the tortfeasor. In Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. at 802 n. 15, 646 A.2d 806, citing with approval Bennett v. Automobile Ins. Co. of Hartford, 32 Conn.App. 617, 626-27, 630 A.2d 149 (1993) (Lavery, J., dissenting), it was noted that in an underinsured motorist case " '[t]he jury's only task [is] to assign the appropriate level of damages arising from the [underinsured] motorist's tort. Because the contractual limits [do] not prove or disprove the plaintiffs' damages, they [are] irrelevant.' " The Bennett court also stated that "henceforth an insurer should raise issues of policy limitation, even when undisputed, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense will not be submitted to the jury but, rather, will be resolved by the trial court prior to the rendering of judgment. Compliance with this procedure will place the trial court and the opposing party on proper notice of the policy limitation issue so that it may be resolved in accordance with § 38a-336 (b)." Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. at 806, 646 A.2d 806. In addition, Practice Book (1998 Rev.) § 10-79 ¹ sets forth nearly identical language. Thus, the result of the trial court's granting of the motion in limine was to establish that the sole function of the jury in this case was to decide the fair, just and reasonable damages that the plaintiff was entitled to recover.

The plaintiff acknowledged that the fact-finding function of the jury was limited to determining damages in his request to charge, submitted prior to the beginning of trial and prior to the court's ruling on the motion in limine, when he sought a charge that the jury's role was to determine fair, just and reasonable damages. During his closing argument, the plaintiff argued to the jury that their role was to determine the fair, just and reasonable damages. Finally, the court's instruction to the jury reaffirmed that the jury's only function was to decide fair, just and reasonable compensation for the plaintiff. ²

In this case, had the trial court rendered judgment in favor of the plaintiff in the amount of the jury verdict, the result would have been an impermissible double recovery by the plaintiff in violation of law and public policy. Furthermore, in the plaintiff's amended complaint, he alleged that he is "entitled to recover his full damages in excess of the $100,000 which he received as the remaining policy limits from Helen Super up to the total available ... coverage which is in the amount of $200,000." Because the jury returned a verdict of less than the plaintiff's $100,000 recovery, the plaintiff failed to satisfy...