Saporoso v. Aetna Life and Cas. Co.

• Decision Date: 03 March 1992
• Docket Number: No. 14164,14164
• Citation: 221 Conn. 356,603 A.2d 1160
• Court: Connecticut Supreme Court
• Parties: Eugenia SAPOROSO et al. v. AETNA LIFE AND CASUALTY COMPANY et al.

Page 1160

603 A.2d 1160

221 Conn. 356

Eugenia SAPOROSO et al. v. AETNA LIFE AND CASUALTY COMPANY et al.

No. 14164.

Supreme Court of Connecticut.

Argued Nov. 1, 1991.

Decided March 3, 1992.

Berdon, J., filed a concurring opinion in which Borden, J., concurred.

Lawrence J. Cicchiello, with whom, on the brief, were Michael J. Melly and Angelo Cicchiello, for appellants (plaintiffs).

Albert Zakarian, with whom, on the brief, was Steven M. Greenspan, for appellees (defendants).

Before SHEA, CALLAHAN, GLASS, BORDEN and BERDON, JJ.

SHEA, Justice.

The complaint in this action, as amended at the commencement of trial, ¹ alleged claims for the intentional infliction of emotional distress and for breach of contract arising out of the termination of the employment of the plaintiff, Eugenia Saporoso, ² by the defendants Aetna Life and Casualty Company (Aetna) and its supervisory employee, Laura Larese. After a trial of several weeks, the court directed the jury to return a verdict for the defendants on these remaining counts ³ of the complaint. The plaintiff has appealed from the judgment, claiming there was sufficient evidence to warrant the submission of the case to the jury. The issues raised in the appeal are: (1) whether the failure of the plaintiff to file a motion to set aside the directed verdict precludes review of her claims on appeal; (2) whether the denial of the plaintiff's motion to amend the complaint after trial had commenced was erroneous; (3) whether the claim of intentional infliction of emotional distress was barred by her recovery of workers' compensation benefits for the same injury; and (4) whether she suffered any damages from the termination of her employment. We affirm the judgment.

Under the view of the evidence most favorable to the plaintiff; Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); the jury might reasonably have found the following facts. The plaintiff was first employed by Aetna in 1966, and she continued her employment until 1974, when she ceased working in order to give birth to a child. In September, 1982, she once again became employed by Aetna in its employee benefits claim department. She applied in 1984 for a position in the NSF collection department, of which the defendant Larese was supervisor. The plaintiff received satisfactory performance evaluations until the end of January, 1985, when her relationship with Larese began to deteriorate. Larese became unduly critical of the plaintiff's job performance, required her to work through lunch periods and accused her of misperforming tasks assigned to others.

On February 25, 1985, Larese issued a written warning to the plaintiff concerning her work. Believing she was being treated unfairly by Larese and suffering from job related stress, the plaintiff went to Aetna's human resources department to discuss her situation. As suggested by a person in that department, she went to the infirmary concerning her complaints of nervousness, headaches, shakiness and stomach problems. A nurse in the infirmary advised her to leave work and to go home, which she did after receiving permission.

The plaintiff consulted her family physician on March 6, 1985. He advised her to rest and to avoid talking because her nervous condition caused her to lose her voice. The plaintiff remained out of work on March 7, but received a call from Larese asking her to return to work. On March 11, when she returned to work, she was sent home, after an examination at the company infirmary, because of the loss of her voice, nose bleeds and a choking sensation. She was examined on March 20 by her family physician, who certified that she was unable to work during the period March 6 through April 1, 1985. After another examination on April 3, her doctor certified that she should not return to work until June 7 because of a swollen throat, headaches, insomnia, and an upset stomach. During the period the plaintiff was out of work, Larese made frequent inquiries by telephone and letter concerning her failure to return to work and her medical treatment, sometimes accusing her of malingering.

On May 23, 1985, at Larese's insistence, the plaintiff was examined by an orthopedist selected by Aetna, despite the plaintiff's protestations that her complaints were not orthopedic in nature. This physician found no orthopedic problems, but referred the plaintiff to an ear, nose and throat specialist, who examined her on May 31 and advised her to stay out of work from that date until June 18. Nevertheless, Larese, on the basis of the orthopedist's report, telephoned the plaintiff on June 3 and instructed her to come to work on June 5. The plaintiff explained that she was incapable of returning on that date and, because she had begun to choke, she could not complete the conversation. Larese then sent a letter to the plaintiff stating that, if she failed to return to work by June 5, her employment would be terminated. When the plaintiff failed to report for work on June 5, another letter was sent notifying her that Aetna had terminated her employment.

Thereafter, the plaintiff's condition worsened and she consulted a psychiatrist. She lost weight, experienced dizziness and could neither drive a car nor care for her family. She suffered headaches, stomach upsets, decreased energy levels and crying episodes. The psychiatrist attributed her physical problems to anxiety and depression related to her employment and her discharge. He found that she was totally disabled from her employment.

On July 9, 1985, the plaintiff filed a claim for workers' compensation benefits pursuant to General Statutes § 31-310. The workers' compensation commissioner, after a formal hearing, found that the plaintiff had become totally disabled as a result of her employment and awarded her total disability benefits from March 6, 1985, until such time as her disability was cured or diminished.

I

After the jury, as directed by the court, had returned a verdict for the defendants, the plaintiff filed this appeal without having first moved to set aside the directed verdict. "No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action...." General Statutes § 52-228b; ⁴ see Practice Book § 320. ⁵ In Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981), we held that the statute required a motion to set aside a verdict not only when the claim on appeal related to the sufficiency of the evidence to support the verdict, but also when an erroneous ruling of the trial court was a basis for the appeal. We have applied the statute and the rule to directed verdicts as well as to those rendered by a jury without the order of a court. Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987); Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987); see Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 750, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

In contending that "[t]here simply is no language in the statute requiring the motion [to set aside a verdict] as a predicate to full appellate review of rulings made by the court during the trial of the case," the concurring opinion overlooks the breadth of the first sentence of the statute, which provides that "[n]o verdict in any civil action ... may be set aside except on written motion...." (Emphasis added.) There is no ambiguity in that language to justify a distinction between motions to set aside for insufficient evidence and those based on rulings during the course of the trial. In applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created.

Although § 52-228b is a procedural statute that this court has constitutional authority to reject; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968); we implicitly consented to its terms in Pietrorazio v. Santopietro, supra, 185 Conn. at 514, 441 A.2d 163. The concurring opinion does not propose that we exercise our authority to invalidate the statute as a trespass upon our jurisdiction over procedural rules but would achieve a similar result by establishing an exception wholly unsupported by the statutory text.

Despite the views of some commentators, none of whom have considered the effect of the statute, that a motion to set aside based on rulings at trial is redundant and "add[s] nothing to the appeal"; 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 205(d); F. James & G. Hazard, Civil Procedure (2d Ed.) § 7.17; such a motion serves at least four useful functions: (1) it allows the trial court, in the less hectic atmosphere of a post-trial proceeding, to reconsider its rulings and, if they are determined to have been erroneous as well as harmful, to grant a new trial without the necessity of an appeal; (2) it provides an opportunity for the court to explain and to justify the challenged rulings in a written memorandum far more effectively and clearly than is possible at trial; (3) after a verdict is rendered and before an appeal is taken it provides the only occasion for counsel to appear in court and to present arguments in support of their positions, which are ordinarily formulated much more clearly and persuasively than at trial; and (4) it induces counsel for the parties to reevaluate the strength of their positions in the light of a jury verdict and thus may lead to a settlement of the litigation.

The plaintiff recognizes the consequences of her failure to move to set aside the verdict and concedes that plain error is the appropriate standard of review. "The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court." Practice Book § 4185. "Such review is reserved for truly extraordinary situations where the existence...