Peck v. Jacquemin

Decision Date23 April 1985
Citation491 A.2d 1043,196 Conn. 53
PartiesRoger PECK, Jr. v. Paul JACQUEMIN et al.
CourtConnecticut Supreme Court

Wesley W. Horton, Hartford, with whom was Zbigniew S. Rozbicki, Torrington, for appellant (plaintiff).

Jeffrey L. Williams, Hartford, for appellee (defendant Ira J. Roy).


ARTHUR H. HEALEY, Associate Justice.

This case arises out of a two-car accident in Torrington on September 27, 1979, in which the plaintiff, Roger Peck, Jr., a passenger, was injured. In the ensuing negligence action instituted in 1981, Peck sued both drivers, Paul Jacquemin and Ira J. Roy. On December 27, 1982, he settled the case with Jacquemin, the driver in whose car he was a passenger, for $100,000. The remaining defendant Roy (hereinafter the defendant) alleged, by way of special defense, that he was entitled to a setoff in that amount if damages were assessed against him. 1 In his reply to this special defense, the plaintiff admitted the payment from Jacquemin but denied that portion of the special defense that alleged that the defendant was "entitled to a set-off in the amount of said payment because by operation of law there is no contribution allowed among joint tortfeasors." 2 This special defense and the reply were filed during the trial after the defendant pressed his claim of a setoff. At trial, the defendant had filed a memorandum of law 3 in which he claimed that Public Acts 1982, No. 82-406, § 3, codified as General Statutes § 52-216a, 4 enacted in response to our decision in Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), was unconstitutional. In his memorandum he maintained that this 1982 statute did not cure "the defect found in Seals ..." and that it "unconstitutionally interferes with and invades the fact-finding function of the jury, Connecticut General Statutes [sic] Constitution Article I, 819 [sic], and is void in its entirety."

In pressing his claim at that time, the defendant's trial counsel (who is also appellate counsel) argued to the court that he was entitled, in the presence of the jury, to question the plaintiff, who was then testifying, as to whether he had settled with Jacquemin by executing a release to him in return for the payment of $100,000. 5 Defense counsel argued orally that § 52-216a as amended both changed the common law and thus was inapplicable and "unconstitutionally interfere[d] with the defendant's right to trial by jury." The plaintiff's counsel argued that § 52-216a was applicable because it provided that the jury should not be informed of any releases with other parties, joint tortfeasors, or any agreements not to sue and also because it was procedural and not substantive. He argued further that the proposed special defense of setoff was not a proper defense "because it's not a setoff ... it's a question of mitigation" and that "[t]here is a distinction between a setoff and mitigation of damages."

The trial court ruled that the defendant could file the special defense of setoff and that he could examine the plaintiff in the presence of the jury on the release given by him to Jacquemin. In doing so, he said: "I'm going to, under the authority of the holding of the Supreme Court in Seals and Hickey [sic], allow Mr. Williams [Roy's counsel] to make his offer of proof." Prior to doing so, the trial court indicated that it viewed § 52-216a as amended as substantive and not procedural and that it changed the common law. 6

Thereafter, defense counsel did examine the plaintiff before the jury concerning the Jacquemin settlement. 7 During its instructions to the jury, the court charged on the defendant's special defense alleging a setoff of the payment the plaintiff received from Jacquemin to which the plaintiff duly excepted. 8 The jury returned a plaintiff's verdict against the defendant in the amount of $35,000. Thereafter, the plaintiff filed motions to set aside the verdict as inadequate and for a new trial, as well as an additur, claiming that the verdict was inadequate. 9 The court, after a hearing, denied both motions. This appeal followed.

On appeal, the plaintiff raises two issues: (1) whether Public Acts 1982, No. 82-406, § 3 (General Statutes § 52-216a as amended) was applicable when the cause of action arose before the effective date of this statute but where settlement with one joint tortfeasor occurred after that effective date; 10 and (2) whether that statute is unconstitutional under Seals v. Hickey, supra. The first issue is answered in the affirmative and the second in the negative. The trial court, therefore, committed error in permitting the prior settlement with Jacquemin to be brought to the attention of the jury.

It is readily apparent from a common sense reading of § 52-216a that its legislative objective was to prohibit in a trial to a jury its knowledge of any agreement or release involving a tortfeasor "at any time during the trial of the cause of action ..." against another tortfeasor. Under the express language of § 52-216a, the "introduction of [any] such agreement or release in a trial to the court" is not prohibited. Further, the statute clearly provides that the court, "at the conclusion of the trial" and after a verdict is returned, is empowered to act in the event that it "concludes" that the verdict either "is excessive as a matter of law" or rather "is inadequate as a matter of law." Under § 52-216a as amended, the jury-interdicted "agreement ... not to bring legal action or ... release of a tortfeasor in any cause of action" involves what fairly and euphemistically are called "settlements." The statute thus instructs the trial court how to proceed with such settlements in both jury and court cases. Even before our decisions in Seals v. Hickey, supra, and Fritz v. Madow, 179 Conn. 269, 426 A.2d 268 (1979), in speaking of the precursor of § 52-216a, i.e., Public Acts 1976, No. 76-197, we pointed out that that statute which provided that such an agreement was not to be read to the jury or introduced into evidence "expresse[d] the better policy, removing whatever possibility for prejudice may exist...." Kosko v. Kohler, 176 Conn. 383, 387, 407 A.2d 1009 (1978).

The present statute, which was enacted in response to our decision in Seals, became effective on October 1, 1982. General Statutes § 2-32. The accident which gave rise to the plaintiff's cause of action in this case occurred on September 27, 1979. The plaintiff, Peck, instituted the present action against the defendants Jacquemin and Roy on June 26, 1981, and it was returnable to court on July 21, 1981. The plaintiff executed a release in favor of the defendant Jacquemin on December 27, 1982, in return for the payment of $100,000. On January 18, 1983, the plaintiff filed a withdrawal of this action as against Jacquemin. 11 The trial of the action to jury began on March 2, 1983, and, on March 10, 1983, the jury returned a plaintiff's verdict in the amount of $35,000 against the defendant Roy.

We agree with the plaintiff's argument that he did not seek to have the statute applied retroactively. 12 Section 52-216a as amended proscribes the bringing to the jury's attention any agreement or release referred to in the statute and prescribes the course to be undertaken by the court after verdict in a jury trial. This trial took place after the effective date of the statute. The statute affects only circumstances that may exist at the time of trial rather than those of the date of the accident. The defendant argues to the contrary; he maintains not only that the statute is substantive and cannot be applied retroactively because of our decisional law but also that the application of § 52-216a as amended in this case would run afoul of General Statutes § 55-3, which provides: "No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." What we have already said disposes of both grounds of his claim. First, even if we assumed that the statute was substantive, simply put, it is just not being applied retroactively. Second, while "[a] right of action, including one for personal injuries, is a vested property interest, before as well as after judgment"; Massa v. Nastri, 125 Conn. 144, 147, 3 A.2d 839 (1939); the plaintiff in such a matter has no right to the payment of damages from the defendant(s) until entitlement to damages has been so adjudged after a trial to a jury or a court. It follows, therefore, that a defendant has no "obligation" in accordance with § 55-3 to pay damages until that time. No vested or substantive right of the defendant is implicated, let alone violated, by the application of § 52-216a as amended in this case. Nor is he visited by any hardship, difficulty or injustice imposed by its application. We accordingly reject the defendant's claim that the statute prejudicially affects the legal character of past transactions in derogation of the rule against retrospective application of statutes and that the rights and liabilities of the parties to a negligence action are determined at the time the cause of action arises, in the present case on the date the automobile accident occurred. The statute, i.e., § 52-216a as amended, is thus applicable.

We now address the issue whether § 52-216a as amended is unconstitutional under Seals v. Hickey, supra. The parties agree that this statute was enacted in response to our decision in Seals. The plaintiff maintains that the statute passes constitutional muster under Seals. On the other hand, the defendant disagrees and argues, inter alia, that the statute does not cure the constitutional infirmity we pointed out in Seals. 13

We agree with the plaintiff that § 52-216a as amended is constitutional under Seals. The trial court's ruling permitting the defendant to bring...

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