208 Conn. 82 (1988) | Cited 14 times | Supreme Court of Connecticut | June 28, 1988

In this action to recover damages for thecollapse of the roof and walls of a buildingin the town of Glastonbury, owned by the plaintiffDaniel Civiello and leased to the plaintiff CycleWorld, Inc., a jury returned a verdict of $153,522against the defendant National Lumber Company.1The defendant filed a motion to set aside the judgmentand, alternatively, for a remittitur. A remittiturof $36,000 was ordered on the ground, as had beenstipulated by the parties, that the plaintiffs hadreceived that sum before trial from two other originaldefendants in settlement of the claims against them.The plaintiffs filed an acceptance of the remittiturpurporting to reserve without prejudice the rightto appeal from the determination of the court thatthey were not entitled to interest in accordancewith General Statutes 52-192a (b),2 which

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     allows interest where a plaintiff "has recoveredan amount equal to or greater than" his offer ofjudgment. The plaintiffs had filed an offer ofjudgment of $125,000 about four months aftercommencing suit, and, if 52-192a (b) weresatisfied, would have been entitled to interest at12 percent "computed from the date such offer wasfiled." General Statutes 52-192a (b). Thedefendant filed an objection in the trial court tothe conditional acceptance of the remittitur, butthe objection was overruled. The plaintiffs filedtheir appeal from the "[j]udgment denying intereston the plaintiffs' offer of judgment."

This appeal presents two issues: (1) ajurisdictional question, whether a plaintiff whohas accepted a remittitur order may, nevertheless,appeal from the judgment containing that order;3and (2) an issue of statutory construction, whethera plaintiff who has obtained a jury verdict for anamount in excess of his offer of judgment, whenthat verdict later is properly reduced by

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     the trial court to a sum less than that offer, isentitled to interest pursuant to 52-192a (b) forhaving "recovered an amount equal to or greaterthan" his offer of judgment. We hold that we havejurisdiction to entertain the appeal but that theamount of the judgment rather than the verdict mustbe compared with the amount of the offer of judgmentin deciding whether a plaintiff is entitled to interestunder the statute. Accordingly, we find no error.



The parties appear to have assumed that thejurisdictional issue is one of first impressionin this state. This court, however, in Beers v.New York, N.H. & H.R. Co., 89 Conn. 711, 713,94 A. 919 (1915), rejected the suggestion of aplaintiff, who had refused to file a remittiturand had taken an appeal from an order conditionallysetting aside the verdict, that, if his appealshould prove unsuccessful, we should directjudgment for the amount to which the verdictwould have been reduced if the remittitur hadbeen accepted. "[The plaintiff] cannot be allowedto speculate upon his chances, and now, withouta new trial, recover a judgment for the amountwhich he rejected in the Superior Court." Id. Inan earlier case approving the practice of orderinga remittitur where the damages awarded by a jurywere clearly excessive, we recognized that an orderof remittitur presented a plaintiff with a choice oftwo alternatives: "The plaintiff is not compelled toremit the sum suggested by the trial court, but mayelect either to submit to a new trial, or to seek,

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     by an appeal to this court . . . to have the orderof new trial reversed and judgment rendered forthe full amount of the verdict." Noxon v.Remington, 78 Conn. 296, 300, 61 A. 963 (1905);see Doroszka v. Lavine, 111 Conn. 575, 579,150 A. 692 (1930). Where the trial court has failed toorder an appropriate remittitur for a verdictfound to be excessive on appeal, this court hasexercised its own prerogative to order aremittitur as an alternative to a new trial.Buckman v. People Express, Inc., 205 Conn. 166,177, 530 A.2d 596 (1987); Gorczyca v. New York,N.H. & H.R. Co., 141 Conn. 701, 706, 109 A.2d 589(1954); McCarthy v. Maxon, 134 Conn. 170, 173,55 A.2d 912 (1947); Rosa v. American Oil Co.,129 Conn. 585, 589-90, 30 A.2d 385 (1943).

While the vintage of our most significantprecedent, Beers v. New York, N.H. & H.R. Co.,supra, exceeds a half century, the United StatesSupreme Court more recently has resolved conflictsamong the federal courts> in favor of adhering to"[a] line of decisions stretching back to 1889"holding that a plaintiff cannot, by accepting theorder under protest, "appeal the propriety of aremittitur order to which he has agreed." Donovanv. Penn Shipping Co., 429 U.S. 648, 649, 97 S.Ct.835, 51 L.Ed.2d 112 (1977). The court upheld theSecond Circuit Court of Appeals in dismissing theappeal for lack of a final judgment. Donovan v.Penn Shipping Co., 536 F.2d 536 (2d Cir. 1976).The Second Circuit majority opinion, in additionto reliance upon precedent, had stressed threegrounds in support of its position: (1) "[t]heproliferation of appeals would be the inevitableconsequence" of permitting a plaintiff, who"would have nothing to lose" after guaranteeinghimself a minimum verdict, to appeal underprotest in an attempt to restore the originalverdict; id., 537; (2) the policy againstpiecemeal appeals embodied in the final judgmentrule would be violated by sanctioning an appealfrom a conditional order for a new trial; and (3) "in

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     those rare instances where a second trial isrequired, it provides yet an additional gauge bywhich the court of appeals can judge the proprietyof the remittitur." Id., 538. These considerations,particularly those relating to efficient judicialadministration, were sufficient, in the view ofthe majority, to overcome the concern of theminority that such a restriction upon a plaintiffis grossly unfair in depriving him of "any realopportunity to challenge the judge's use of aremittitur." Id., 539 (Feinberg, J., dissenting).

A majority of the state courts> that haveconsidered the issue have held that at commonlaw the plaintiff who accepts a remittitur inlieu of a new trial is bound by his electionand cannot appeal from the judgment orderingthe remittitur. Annot., 16 A.L.R.3d 1327,1329; W. Maywhort, "Remitting Parties' Rightto Cross-Appeal," 49 N.C.L. Rev. 141 (1970).The rule has been abrogated by statute in atleast one state. Tenn. Code Ann. 20-10-102,20-10-103. It has been modified by statute orjudicial decision in several states to permita plaintiff to file a cross appeal from aremittitur order where the defendant hasinitiated the appeal, a situation in whichconsiderations of efficient judicialadministration would favor the disposition ofall of the issues in one appeal. Neb. Rev. Stat.25-1929 (1943); Mulkerin v. Somerset Tire Service,Inc., 110 N.J. Super. 173, 264 A.2d 748 (1970);Plesko v. Milwaukee, 19 Wis.2d 210,120 N.W.2d 130 (1963).

The plaintiffs in this case do not dispute theforce of precedent barring a plaintiff fromappealing from a remittitur order that he hasaccepted. They contend that their appeal can bemaintained, nevertheless, because they do notcontest the propriety of the $36,000 reduction inthe jury verdict, corresponding to the paymentsreceived from other tortfeasors, and seek only tochallenge the refusal of the trial court to awardinterest pursuant to 52a-192a (b), a whollyseparate determination.

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     We agree with the plaintiffs that the policiesthat have persuaded courts> to bar appeals fromremittitur orders that have been accepted byplaintiffs who also attempt to contest thepropriety of such orders are inapplicable tothis case. Indeed, we ultimately conclude thatthe considerations of efficient judicialadministration that have been a paramount factorin inducing courts> to maintain this bar to appellatereview warrant its removal in these circumstances.


The reduction of $36,000 in the jury verdicteffectuated by the remittitur order in this casedid not result from a conclusion of the trialcourt that the jury had awarded excessive damagesbased on the evidence presented to it. Inaccordance with the practice established byGeneral Statutes 52-216a,4 the fact thatthe plaintiffs had received that sum in settlementof their claims against others, who had originallybeen parties to the action, was never disclosed tothe jury. That statute provides that a "remittitur"shall be ordered "[i]f the court . . . concludesthat the verdict is excessive as a matter oflaw . . . ."

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In this case the trial court concluded that the$36,000 the plaintiffs had received should bededucted from the verdict not because the juryawarded excessive damages based on the evidencepresented, but in order that the plaintiff would"not be unjustly enriched." The plaintiffs havenever disputed that determination. Although thecourt quite properly used the term "remittitur"inmaking this reduction in the verdict authorized by52-216a, that nomenclature does not alter thecharacter of the adjustment made by the court inrendering judgment. See Alfano v. Ins. Center ofTorrington, 203 Conn. 607, 610-11, 525 A.2d 1338(1987). Since the plaintiffs never claimed thatthe $36,000 reduction in the award of damages wasimproper, the court effectively set off theamounts paid in settlement by other defendantsagainst the total damages the jury found theplaintiffs had sustained. Such a deduction from averdict is not to be confused with a remittiturpursuant to General Statutes 52-228b,5 wherethe plaintiff has the alternative of a new trialif he fails to accept the remittitur order. Inthis case, since the propriety of the reductionwas never disputed, there was no reason to order anew trial.

Accordingly, we conclude that the reduction in theverdict ordered by the trial court was a final judgmentfrom which the plaintiffs are entitled to appeal. Therecould properly be no further proceedings in the trial

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     court to affect that determination, which neitherparty seeks to challenge. Under thesecircumstances it would be an exercise in futilityto insist that there be a new trial, which wouldprovide no additional light upon the issue ofwhether the plaintiffs are entitled to interestbased on the present award. Considerations ofjudicial efficiency in this case clearly demandresolution of that issue in this appeal.


The plaintiffs' claim for interest is based onthe provision of 52-192a (b) that requires thecourt, when "the plaintiff has recovered an amountequal to or greater than the sum certain stated inhis `offer of judgment,'" to "add to the amountso recovered twelve per cent annual interest onsaid amount, computed from the date such offer wasfiled in actions commenced before October 1,1981." The offer of judgment for $125,000 wasfiled by the plaintiffs on November 22, 1979. Thejury verdict of $153,522 was returned on April10, 1987, and the judgment on the verdict, orderingthat the plaintiffs recover that sum less aremittitur of $36,000, subject to their optionfor a new trial, was rendered on June 3, 1987.

The plaintiffs contend that, because the verdictof $153,522 without the $36,000 reduction orderedby the court exceeds their offer of judgment, theyhave recovered more than their $125,000 offer ofjudgment and, therefore, are entitled to interestpursuant to 52-192a (b). The issue turns upon whetherthe term "recovered" in the statute refers to theverdict as returned by the jury or the judgmentthereon as rendered by the court after makingappropriate adjustments. Some of the definitionsof "recover" in the legal context are "to gain bylegal process"; Webster's Third New InternationalDictionary; "to acquire by means of litigation";Ballentine's Law Dictionary (3d Ed.); "to

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     get or obtain again, to collect, to get renewedpossession of; to win back"; Black's LawDictionary (5th Ed.); and "to obtain by course oflaw; to obtain by means of an action; or by thejudgment rendered in an action; to succeed in anaction." Bouvier's Law Dictionary (Baldwin'sCentury Ed. 1934). A person gains or obtainsnothing by a jury verdict, of course, unless thatverdict is ultimately transformed into a judgment.A verdict is essentially a finding of fact andcannot be implemented until judgment has beenrendered thereon.

Apart from this lexicographical illumination ofthe subject, it would be incongruous to reward aplaintiff with interest pursuant to the statutewhere his offer of judgment proves to be excessivein the light of the ultimate judgment of thecourt. Where a jury verdict is properly deemedexcessive and accordingly reduced by a remittiturwhen judgment is rendered, the statute could nothave been intended to impose the interest penaltyupon a defendant for failing to accept an offer ofjudgment exceeding the upper limit of reasonablecompensation as determined by the court. Adefendant is not bound at his peril to accept anoffer of judgment that is excessive as a matter oflaw simply because of the possibility that a jurymay award such an exorbitant sum. The propositionadvanced by the plaintiff that the amount of theverdict and not the judgment should bedeterminative of the allowance of interest under52-192a would provide an incentive for a plaintiffto make an offer of judgment far in excess of whatthe law would deem reasonable.

The plaintiffs contend that the policy ofencouraging settlements, which is the underlyingpurpose of 52-192a, will be defeated if weconstrue the term "recovered" to refer to thejudgment rather than the verdict. They maintainthat "[i]f partial settlements are held to reducea plaintiff's `recovery' below the offer

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     of judgment figure, that will create adisincentive to enter into partial settlements."On the other hand, where there are multipledefendants, no one of them would ordinarily beinclined to accept an offer of judgment for a sumapproaching the full amount of damages likely tobe awarded to a plaintiff, unless the likelihoodof his being held solely liable were extreme. Inthis case the plaintiffs filed an offer ofjudgment against each of several defendants in thesum of $125,000. In such a situation eachdefendant would have little incentive to acceptsuch an offer because of his expectation that someother defendant would eventually contribute to thereduction of his potential exposure for damages bypretrial settlement or by apportionment ofresponsibility in the ultimate judgment. SeeGeneral Statutes 52-572h (c), 52-572o. Thedecision of the defendant National Lumber Companynot to accept the offer of a $125,000 judgmentagainst it was ultimately vindicated by thecircumstance that two other defendants paid atotal of $36,000 in satisfaction of their shareof the joint responsibility of all the defendants.The plaintiffs never attempted to file a revisedoffer of judgment, as the statute permits, makingsome allowance for the payments they had received.We are not persuaded that the "disincentive toenter into partial settlements" posited by theplaintiffs is of any more significance in theexpeditious disposition of law suits than theincentive we would be creating for plaintiffs notto file revised offers of judgment as circumstanceschange the ultimate value of a case while it isawaiting trial.

Furthermore, to make the amount of the juryverdict rather than the judgment thereon thecriterion for determining whether a plaintiffhas recovered more than his offer of judgmentwould create a disparity between court andjury trials inconsistent with the legislativeintention that 52-192a (b) apply to both in

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     the same manner.6 In a bench trial, 52-216apermits evidence of a settlement with anothertortfeasor to be introduced so that the court mayin the judgment rendered make allowance for thepayments the plaintiff has already received fromothers. Prior to the advent of 52-216a, evidenceof such payments was also admissible in jurytrials, and the jurors were instructed to reducethe total amount of damages a plaintiff was foundto have sustained by the amount of the payments hehad received. Kosko v. Kohler, 176 Conn. 383, 387,407 A.2d 1009 (1978). The enactment of 52-216a,which bars evidence of such payments in a jurytrial, was intended to ensure that jury verdictswould not be influenced by the knowledge of apartial settlement. This procedural objectiveshould be achieved without producing differentresults in court and jury trials with respect tothe allowance of interest pursuant to 52-192a (b).In the present case, if the trial had been to thecourt without a jury and the same damages of $152,522were found as the plaintiffs' loss, unquestionablythe $36,000 they had already received would haveresulted in a judgment of $117,522, less than the$125,000 offer of judgment. To allow the same factualdetermination of damages by the jury to produce adifferent result with respect to the allowance ofinterest under 52-192a (b)would conflict with theevident legislative purpose of achieving uniformityin the application of the statute to both court andjury trials.

There is no error.

In this opinion the other justices concurred.

1. The action was brought against Sixdefendants. Before trial it was withdrawn againstfour original defendants, two of which, Hydro AirEngineering, Inc., and Edmund Cox paid a total sumof $36,000 in settlement of the claims againstthem. In the trial against the remainingdefendants, Quality Lumber Company and NationalLumber Company, the jury returned a verdict forthe former but against the latter. The opinionrefers to National Lumber Company, the appellee,as the sole defendant.

2. General Statutes 52-192a (b) provides:"After trial the court shall examine the record todetermine whether the plaintiff made an `offer ofjudgment' which the defendant failed to accept. Ifthe court ascertains from the record that theplaintiff has recovered an amount equal to orgreater than the sum certain stated in his `offerof judgment,' the court shall add to the amount sorecovered twelve per cent annual interest on saidamount, computed from the date such offer was filedin actions commenced before October 1, 1981. Inthose actions commenced on or after October 1, 1981,the interest shall be computed from the date thecomplaint in the civil action was filed with the courtif the `offer of judgment' was filed not later thaneighteen months from the filing of such complaint. Ifsuch offer was filed later than eighteen months fromthe date of filing of the complaint, the interest shallbe computed from the date the `offer of judgment' wasfiled. The court may award reasonable attorney'sfees in an amount not to exceed three hundredfifty dollars, and shall render judgmentaccordingly. This section shall not be interpretedto abrogate the contractual rights of any partyconcerning the recovery of attorney's fees inaccordance with the provisions of any writtencontract between the parties to the action."

3. It should be noted that General Statutes52-228a provides expressly that in any jury casewhere the court orders a remittitur or an additur,the party aggrieved "may appeal as in any civilaction." The statute also provides that "[t]heappeal shall be on the issue of damages only, andjudgment shall enter upon the verdict of liabilityand damages after the issue of damages is decided." The legislative history of this enactmentindicates that its purpose was to limit the issuesto damages when a new trial is ordered pursuant toa remittitur or additur, making it unnecessary toretry the issue of liability as the former practicehad required. 11 S. Proc., Pt. 7, 1965 Sess., p.2625, remarks of Senator T. Clark Hull; 11 H.R.Proc., Pt. 8, 1965 Sess., p. 3675, remarks ofRepresentative Robert Satter. There is no indicationthat the statute was intended to remove the necessityfor a new trial entirely or to permit a party toaccept a remittitur or additur while also challengingits propriety.

4. "[General Statutes] Sec. 52-216a. READINGOF AGREEMENTS OR RELEASES TO JURY PROHIBITED.ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE VERDICTSPERMITTED. An agreement with any tortfeasor not tobring legal action or a release of a tortfeasor inany cause of action shall not be read to a jury orin any other way introduced in evidence by eitherparty at any time during the trial of the cause ofaction against any other joint tortfeasors, norshall any other agreement not to sue or release ofclaim among any plaintiffs or defendants in theaction be read or in any other way introduced to ajury. If the court at the conclusion of the trialconcludes that the verdict is excessive as amatter of law, it shall order a remittitur and,upon failure of the party so ordered to remit theamount ordered by the court, it shall set asidethe verdict and order a new trial. If the courtconcludes that the verdict is inadequate as amatter of law, it shall order an additur, and uponfailure of the party so ordered to add the amountordered by the court, it shall set aside theverdict and order a new trial. This section shallnot prohibit the introduction of such agreement orrelease in a trial to the court."

5. "[General Statutes] Sec. 52-228b. SETTINGASIDE OF VERDICT IN ACTION CLAIMING MONEY DAMAGES.No verdict in any civil action involving a claimfor money damages may be set aside except onwritten motion by a party to the action, statingthe reasons relied upon in its support, filed andheard after notice to the adverse party accordingto the rules of the court. No such verdict may beset aside solely on the ground that the damagesare excessive unless the prevailing party has beengiven an opportunity to have the amount of thejudgment decreased by so much thereof as the courtdeems excessive. No such verdict may be setaside solely on the ground that the damages areinadequate until the parties have first beengiven an opportunity to accept an addition to theverdict of such amount as the court deems reasonable."

6. In 1982, the legislature amended theprovision concerning the calculation of intereston the amount "contained in such offer" by substitutingthe amount "of the verdict," corresponding to theprovision for adding such interest "to theverdict." Public Acts 1982, No. 82-228. A furtheramendment in 1983 substituted "add to the amountso recovered [interest] on said amount" for "addto the verdict [interest] on the amount of theverdict." Public Acts 1983, No. 83-295. This 1983amendment apparently was occasioned by thelegislative intention to make it clear thatGeneral Statutes 52-192a is applicable to

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