Madsen v. Gates

• Decision Date: 05 October 2004
• Docket Number: No. 23917.,23917.
• Citation: 85 Conn.App. 383,857 A.2d 412
• Court: Connecticut Court of Appeals
• Parties: William A. MADSEN et al. v. Michael G. GATES et al.

857 A.2d 412

85 Conn.App. 383

William A. MADSEN et al. v. Michael G. GATES et al.

No. 23917.

Appellate Court of Connecticut.

Argued April 23, 2004.

Decided October 5, 2004.

Brian W. Prucker, Stafford Springs, for the appellants (plaintiffs).

Frank J. Szilagyi, Hartford, with whom, on the brief, was Josephine A. Spinalla, for the appellees (defendants).

DRANGINIS, FLYNN and BISHOP, Js.

FLYNN, J.

The plaintiffs, William A. Madsen and Jacqueline Madsen, appeal from the judgment rendered following the trial court's denial of their motion to set aside the jury's verdict. The jury returned its verdict after a trial was held on the negligence action brought by the plaintiffs against the defendants, Michael G. Gates and the town of Enfield (town).¹ The jury found the defendants liable to William Madsen, and awarded him both economic and noneconomic damages, but found that the defendants were not liable to Jacqueline Madsen and returned a verdict in favor of the defendants. The plaintiffs claim on appeal that the court improperly (1) permitted the jury to consider the amount of payments made by collateral sources that were accepted by William Madsen's medical providers in making its determination of the fair, just and reasonable value of the medical services rendered to the plaintiff, (2) failed to set aside inconsistent jury verdicts on negligence arising out of the same incident, (3) found that the failure of the defendants to file a notice pursuant to General Statutes § 7-465(a) was waivable, (4) ruled that the plaintiffs' counsel could not argue a specific amount of future economic damages with respect to William Madsen although evidence of such damages was before the jury and (5) abused its discretion with respect to certain evidentiary rulings. We affirm the judgment of the trial court.

The following facts reasonably could have been found by the jury and are relevant to our resolution of this appeal. The vehicle in which the plaintiffs were riding was rear-ended by the truck that Gates was operating when Gates' foot slipped off the brake while the vehicles were stopped at a red light. Gates admitted that his foot had slipped off the brake of the truck he was operating, which caused him to strike the plaintiffs' vehicle and push it into the vehicle in front of it. At the time of the accident, Gates, an employee of the town, was operating a truck owned by the town in the course of his employment.

Both plaintiffs refused medical attention at the scene of the accident, but claimed to have experienced pain later that evening. Jacqueline Madsen claimed to have injured her neck, and William Madsen claimed to have injured both of his knees and his left shoulder. The plaintiffs were treated by various physicians for their injuries. William Madsen's medical bills totaled approximately $53,500, of which approximately $11,200 had been paid by Medicare and his insurance provider by the time of trial.

The plaintiffs brought an action against Gates sounding in negligence and against the town pursuant to General Statutes § 52-183 and in compliance with § 7-465. The case was tried before a jury, which returned a verdict in favor of William Madsen, finding the defendants liable for his injuries and awarding him economic damages in the amount of $11,315 and noneconomic damages in the amount of $1000. As to Jacqueline Madsen's claims, the jury returned a verdict in favor of the defendants. The plaintiffs timely filed a motion to set aside the verdict on December 11, 2002, arguing that the verdict was against the evidence, inadequate and contrary to law. The court denied the plaintiffs' motion on January 27, 2003. This appeal followed.

I

The plaintiffs first claim that the court improperly permitted the jury to consider the amount of payments made by third parties on behalf of William Madsen that were accepted by his medical providers, rather than the full amount that was billed, in making its determination of the fair, just and reasonable value of the medical services rendered to William Madsen.² The plaintiffs argue that the determination of the fair and reasonable value of medical services requires expert testimony regarding usual and customary fees, and not simply evidence of what amount the medical providers accepted as payment. We conclude that the plaintiffs have not preserved this issue for our review.

The plaintiffs contend that their counsel "objected to the ruling and the trial judge gave a directive from the bench that he would make collateral source deductions after the jury had determined what was the fair and reasonable value of the medical services related to the accident." The record indicates that the plaintiffs' counsel objected when the defendants' counsel asked William Madsen whether he had paid his medical bills "out of his own pocket." The objection pertained to the specific issue of collateral sources. The court then gave a curative instruction regarding the collateral source rule in this state.³ The defendants' counsel subsequently sought to admit into evidence William Madsen's interrogatory responses relating to his medical bills. The plaintiffs' counsel stated that he did not have an objection to the admission of the complete interrogatories. The court stated, "Well, these are interrogatories and [the defendants' counsel is] offering that portion in which [he] got answers as to what bills were paid." The court asked if there was an objection to this admission, to which the plaintiffs' counsel replied, "No objection to that, Your Honor." The exhibit contained information regarding third party payments.

Shortly thereafter, the court gave another instruction to the jury, stating: "[T]he numbers you heard, the mere numbers is what we are told was billed for services. The lower number is what [William Madsen] has said was paid, and there is no indication that there is a further bill coming. To the extent that any money was actually paid, I am going to take it off as I already told you. To the extent that there might be a difference between the bill and the payment that was extended, you're going to have to decide what the fair, just and reasonable value of services rendered in this case." The court then inquired whether either side wanted to object to that instruction. The plaintiffs' counsel stated, "Well, I think we, it opened up who paid for them and all that is collateral." The court responded, "Well, that is different. I am asking is there an objection limited to the instructions." The plaintiffs' counsel stated, "Just my same objection, Your Honor."

Although the plaintiffs' counsel generally objected to the revelation of the existence of collateral sources to the jury, which we agree was not proper, the court gave several curative instructions informing the jury that it was not entitled to make any deductions for payments made by third parties. The plaintiffs' counsel did not object, however, to the admission of the interrogatory responses as a full exhibit, which detailed the payments made on behalf of William Madsen by Medicare and also by his insurance agent, Allstate Insurance Company.

Regardless, the plaintiffs' claim in this appeal is not that the court improperly permitted payments from collateral sources to be revealed to the jury, but rather that it improperly instructed the jury that "the amount of payment tendered by a third party ... is admissible not as to the value of the claim for economic loss by [William Madsen] in a negligence claim, but rather [is] admissible as to what is the fair, just and reasonable value of those services." The plaintiffs' counsel, however, voiced no objection to the instruction on those grounds at trial, although he had been given the opportunity. When the court asked the plaintiffs' counsel whether he objected to its instruction, he replied that he objected on the ground that it opened up the issue of payments from collateral sources in that it revealed who paid for them. He did not object on the ground that the jury would be permitted to consider that lesser amounts were paid by third parties. In other words, he objected to who paid, rather than what was paid. He also did not object on that ground to the court's comprehensive jury charge, in which the court repeated its earlier instruction to the jury regarding the determination of the reasonable value of medical services. The plaintiffs also point to the defendants' closing argument, in which the defendants' counsel submitted his theory that the reasonable value of the medical services was what the medical provider had been paid. However, the plaintiffs did not object to this statement either.

"In order to preserve a claim related to the giving of or failure to give a jury instruction, a party is obligated either to submit a written request to charge covering the matter or to take an exception immediately after the charge is given." Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 591, 627 A.2d 443 (1993). "If counsel follows the latter course, he or she must state distinctly the matter objected to and the ground of objection." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002). "Proper preservation of claims for appellate review requires that the trial court [be] effectively ... alerted to a claim of potential error while there [is] still time for the court to act." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 31, 807 A.2d 955 (2002).

The plaintiffs were required to make a proper objection to the instructions at trial on the same ground that they now raise on appeal. The failure to do so renders this claim unpreserved, and, therefore, we decline to review it.⁴

II

The plaintiffs next claim that the court improperly denied their motion to set aside the jury's verdict because the verdict was inconsistent and the jury could not "reasonably and legally" have reached its conclusion. We disagree.

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