Sivilla v. Philips Medical Systems of North America

• Decision Date: 16 September 1997
• Docket Number: No. 15291,15291
• Citation: Sivilla v. Philips Medical Systems of North America, 700 A.2d 1179, 46 Conn.App. 699 (Conn. App. 1997)
• Court: Connecticut Court of Appeals
• Parties: Eleanor SIVILLA et al. v. PHILIPS MEDICAL SYSTEMS OF NORTH AMERICA, INC., et al.

Page 1179

700 A.2d 1179

46 Conn.App. 699

Eleanor SIVILLA et al. v.PHILIPS MEDICAL SYSTEMS OF NORTH AMERICA, INC., et al.

No. 15291.

Appellate Court of Connecticut.

Argued May 30, 1997.

Decided Sept. 16, 1997.

Lois Tanzer, Hartford, with whom, on the brief, was Tanya Feliciano, New Haven, for appellant(intervening plaintiff).

James E. O'Donnell, with whom was David J. McDonald, Westport, for appellees(defendants).

Before LAVERY, LANDAU and HEALEY, JJ.

LANDAU, Judge.

The intervening plaintiff, Saint Mary's Hospital (St.Mary's), appeals from the judgment, rendered after a jury trial, of indemnification in favor of the defendants, Philips Medical Systems of North America, Inc., and North American Philips Corporation(Philips) on their counterclaim.On appeal, St. Mary's argues that the trial court improperly (1) rendered judgment in the absence of subject matter jurisdiction, (2) admitted evidence of the underlying judgment, (3) found that an enforceable indemnity agreement existed between St. Mary's and Philips, and (4) found that the action was not time barred.We affirm the judgment of the trial court.

The following facts are relevant to this appeal.In August, 1988, the plaintiffEleanor Sivilla(Sivilla), an employee of St. Mary's, sustained work-related injuries when an X ray machine fell on her.St. Mary's had purchased the X ray machine from Philips in October, 1980.In August, 1990, Sivilla commenced a products liability action against Philips.Sivilla's husband, Mathew Sivilla, joined in the action seeking damages for loss of consortium.¹In January, 1992, St. Mary's intervened by way of an amended complaint in Sivilla's product liability action seeking reimbursement from Philips for workers' compensation benefits paid to Sivilla.Philips filed an answer, special defenses and a counterclaim.The counterclaim alleged an independent legal relationship between Philips and St. Mary's based on a purchase and sale contract that provided that St. Mary's would indemnify and hold Philips harmless from all claims and judgments arising out of or in connection with the operation of the product by St. Mary's.

In June, 1993, Philips moved for summary judgment on St. Mary's intervening complaint on the ground that the products liability statutes barred employers from intervening or asserting a lien if the claim against the third party is a products liability claim.The trial court granted Philips' motion for summary judgment on the ground that General Statutes(Rev. to 1993)§ 52-572r (c) precluded the cause of action by St. Mary's against Philips.²In February, 1995, following a mediation conference, Sivilla and Philips filed a stipulated judgment for Sivilla to recover $750,000 in the underlying action.

Philips proceeded to trial against St. Mary's on the indemnification counterclaim.On May 3, 1995, the jury returned a verdict in the amount of $750,000 on behalf of Philips.St. Mary's moved postverdict to set aside the verdict, for judgment notwithstanding the verdict and for a set off of the amounts paid under the Workers' Compensation Act.The trial court, in a thorough memorandum of decision, denied the motion by St. Mary's to set aside the verdict and for judgment notwithstanding the verdict.This appeal followed.

I

St. Mary's first claims that the trial court improperly rendered judgment in the absence of subject matter jurisdiction.St. Mary's argues that Philips' action for indemnification is barred by the Product Liability Act³ and the "exclusive remedy" provisions of the Workers' Compensation Act.⁴We disagree.

We first address the issue of subject matter jurisdiction of this court."Lack of subject matter jurisdiction may be raised at any time....Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction...."(Citations omitted; internal quotation marks omitted.)Second Injury Fund v. Lupachino, 45 Conn.App. 324, 330, 695 A.2d 1072(1997).It is well settled that statutes are to be read as favoring subject matter jurisdiction, absent a clear indication of legislative intent to limit it.Doe v. Statewide Grievance Committee, 240 Conn. 671, 684, 694 A.2d 1218(1997).

General Statutes(Rev. to 1993)§ 52-572r (d) of the Product Liability Act provides: "In any product liability claim for personal injury or death arising out of and in the course of employment subject to the provisions of sections 52-240a,52-240b,52-572m to 52-572r, inclusive, and 52-577a, brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability."No language exists in this statute which implicates the trial court's subject matter jurisdiction over this action, as claimed by St. Mary's.Therefore, we conclude that the trial court had subject matter jurisdiction over this case.

Philips further argues that, because the trial court had subject matter jurisdiction and St. Mary's failed to plead immunity as a special defense or otherwise to raise the defense at trial, the issue of whether St. Mary's was entitled to immunity under the Workers' Compensation Act was not properly preserved and, therefore, is not reviewable by this court.We agree.

Our Supreme Court has determined that immunity must be raised as a special defense in the pleadings.SeeGauvin v. New Haven, 187 Conn. 180, 184-85, 445 A.2d 1(1982)." 'The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.' "Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719(1995).If St. Mary's was immune from liability, as it claimed under the exclusive remedy provision of the Workers' Compensation Act, it was incumbent upon St. Mary's to plead that fact as a special defense.St. Mary's did not do so.⁵

It is true that "[i]n certain limited circumstances, an appellate court will address the issue of whether ... immunity is available to a defendant where the defense was not specially pleaded.If the question of ... immunity was fully litigated at trial, without objection from the plaintiff, the plaintiff is deemed to have waived its objection to the requirement that the defense be specially pleaded."Id., at 24-25, 664 A.2d 719.In this case, however, St. Mary's did not raise the issue of immunity at trial, and, therefore, Philips cannot be deemed to have waived its objection.In fact, the first time that St. Mary's claimed immunity, pursuant to § 52-572r (d), was in its postverdict motions to set aside the verdict and for judgment notwithstanding the verdict.Accordingly we decline to review this claim.Seeid., at 27, 664 A.2d 719.⁶

II

St. Mary's next argues that the trial court improperly admitted evidence of the underlying judgment.St. Mary's concedes that the jury properly considered the fact that a stipulated judgment, including the amount of the judgment, was accepted by the court.St. Mary's argues, however, that the mediation settlement opinion and the testimony of Sivilla and her attorney regarding the settlement were improperly admitted and considered by the jury.

St. Mary's argues that it was prejudiced by the reading of the mediation settlement recommendation to the jury, which included unfavorable statements concerning St. Mary's in that it was asked to participate in the mediation but declined.The trial court did give a curative instruction.⁷St. Mary's further argues that Sivilla's attorney was an improper witness because he was not a fact witness to the accident and that his testimony was irrelevant and prejudicial.⁸

Philips argues that the judgment and the attached settlement negotiation were properly admitted, and, if part of the recommendation was prejudicial, that St. Mary's was obligated to make a specific objection before the trial court to have that prejudicial portion redacted.Philips also argues that the settlement recommendation was relevant and probative on the issue of the reasonableness of the settlement.Finally, Philips argues that any prejudicial impact was avoided by the trial court's jury instruction.

It is well established that a "trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence....The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion."(Citation omitted; internal quotation marks omitted.)New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301(1996).In its memorandum of decision on St. Mary's motion to set aside the verdict and for judgment notwithstanding the verdict, the trial court rejected that argument.⁹Where an action for indemnity is brought based on a stipulated judgment, the reasonableness of the settlement is an element that must be proven.Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 160, 681 A.2d 293(1996).In its jury charge, the trial court instructed the jury that, in evaluating the issue of the reasonableness of the settlement, it could consider the mediation recommendation as one factor, but that it was not bound by the recommendation.¹⁰Even if we assume that St. Mary's properly objected to the admission of the recommendation, its claim that it was prejudiced by the admission into evidence of the statement in the recommendation that it was asked to participate but declined fails because the trial court instructed the jury on that issue as well.As a result of our review of the record, we conclude that the trial court did not abuse its discretion by admitting the mediation settlement recommendation.

III

St. Mary's next argues that the trial court improperly found that Philips had established that an...