211 Conn. 133 (1989) | Cited 24 times | Supreme Court of Connecticut | May 9, 1989

The plaintiff, Iseli Company, had anemployee named Roger Bolduc, Sr. In February,1983, Bolduc and his son, Roger Bolduc, Jr., wereinjured when an explosion occurred at theirWatertown home. The explosion apparently resultedfrom an ignition of natural gas leaking from thefacilities of the defendant Connecticut Light andPower Company (CL&P). The plaintiff compensatedthe Bolducs for their medical expenses and paidlost wages to Roger Bolduc, Sr. This compensationwas made through the plaintiff's self-insuranceplan rather than through its workers' compensationplan.

[211 Conn. 135]

The plaintiff filed a complaint on May 12,1986, alleging that the defendant had agreed toreimburse the plaintiff for the expenses paid tothe Bolducs. In return, the plaintiff had agreedto forgo any claim against the defendant for themedical expenses and lost wages. The case wastried to the jury. At the close of the plaintiff'scase, and again at the close of all the evidence,the defendant moved for a directed verdict,arguing that the alleged reimbursement contractfailed for lack of consideration. The trial courtdenied the motions. At the conclusion of all theevidence, the trial court instructed the jury thatit could award interest to the plaintiff should itdecide the case in the plaintiff's favor. The juryreturned a general verdict in favor of theplaintiff and awarded $31,327.98 in damages plusinterest. The defendant made separate motions forjudgment notwithstanding the verdict and to setaside the verdict, both of which the trial courtdenied. The trial court rendered judgment on theverdict, and included the amount of $15,455.97 asinterest.

The defendant appealed to the Appellate Courtfrom the judgment rendered on the verdict,claiming that the trial court erred: (1) byfailing to instruct the jury on the legalnonviability of the plaintiff's underlying claim;(2) by denying the defendant's motions for adirected verdict; and (3) by permitting the juryto award the plaintiff interest. Pursuant toPractice Book 4023, we transferred the appeal toourselves. We find no error.


The defendant's first two claims concern theissue of whether the plaintiff's forbearance frombringing an action against the defendant wasvalid consideration for supporting the parties'reimbursement agreement. Before embarking on ananalysis of the defendant's specific claims, itwill be useful to set forth the relevant law.

[211 Conn. 136]

"Forbearance from suit is, of course, validconsideration for a contract if the claim on whichthe suit was threatened was valid and enforceable.Hyde v. Lipiec, 12 Misc.2d 107, 173 N.Y.S.2d 901[1958]; 1 Corbin, Contracts 139; 1 Williston,Contracts (3d Ed.) 135; 17 C.J.S., Contracts 104(1). Moreover, `[i]t is a general rule of law thatforbearance to prosecute a cause of action, wherethe right is honestly asserted under the beliefthat it is substantial, although it may in fact bewholly unfounded, is a valuable considerationwhich will support a promise.' Joffe v. Bonn,14 F.2d 50, 52 (3d Cir. [1926]). See Warner v.Warner, 124 Conn. 625, 632, 1 A.2d 911 [1938].Forbearance, however, is not a sufficientconsideration unless the claimant had somereasonable ground for belief in the justice of theclaim; 1 Corbin, op. cit. 140; Warner v. Warner,supra; or if the claim is not made in good faith.Pash v. Wagner, 2 Misc.2d 822, 151 N.Y.S.2d 411[1956]; Plunkett v. O'Connor, 162 Misc. 839,295 N.Y.S. 492 [1937]; 17 C.J.S., Contracts 104(2)."Dick v. Dick, 167 Conn. 210, 225, 355 A.2d 110(1974). Although the principles governingforbearance as consideration set forth in Dickwere based on an analysis of New York law; id.,223; our reference to the Warner decisiontherein indicates that those principles arealso applicable in Connecticut. Cf. Hofmann v.DeFelice, 136 Conn. 187, 190, 70 A.2d 129 (1949);Savings Bank of Rockville v. Cohn, 116 Conn. 480,485, 165 A.2d 607 (1933); Markel v. DiFrancesco,93 Conn. 355, 359, 105 A. 703 (1919); Thomas'Appeal, 85 Conn. 50, 53-54, 81 A. 972 (1911).

"Under common law a cause of action for personalinjuries cannot be assigned, and in the absence ofa statutory provision to the contrary a right ofaction for personal injuries resulting fromnegligence is not assignable before judgment.6 Am.Jur.2d 220, Assignments, 37. The rule issuccinctly stated in the Restatement,

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     2 Contracts 547(1)(d): `An assignment of aclaim against a third person or a bargain toassign such a claim is illegal and ineffective ifthe claim is for . . . (d) damages for an injurythe gist of which is to the person rather than toproperty, unless the claim has been reduced tojudgment.' "Berlinski v. Ovellette, 164 Conn. 482,485, 325 A.2d 239 (1973). Although there is anexception to this rule under the workers' compensationstatutes; see General Statutes 31-293 (a) (employerwho has paid workers' compensation benefits to injuredemployee can bring action against tortfeasor); theplaintiff in the present case conceded at oralargument that it did not acquire a legally validcause of action against the defendant by compensatingthe Bolducs for injuries they received in the explosion.


The defendant first argues that the trial courtshould have instructed the jury that the legalnonviability of the claim the plaintiff agreed toforgo, in exchange for the defendant's promiseof reimbursement, was a factor the jury shouldconsider in assessing the reasonableness of theplaintiff's belief in the validity of that claim.Dick v. Dick, supra; Berlinski v. Ovellette,supra; Warner v. Warner, supra. A review of therecord demonstrates, however, that the defendantdid not distinctly raise this claim at trial inaccordance with the rules of practice. PracticeBook 315.1 Consequently, we do not reach themerits of the defendant's first claim.

[211 Conn. 138]

At trial, the defendant submitted the followingrequest to charge. "10. The testimony provided by[Andrew] Gionta of the Iseli Company indicatesthat his company did claim to suffer a loss ordetriment as a result of CL&P's alleged promise,namely its foregoing of waging a claim againstCL&P. This is the only loss claimed to have beensustained by the plaintiff. In Connecticut, it iswell-settled that one person cannot assign hisrights to make a claim for personal injuries.Berlinski v. Ovellette, [supra]. Here, that isprecisely what has been done, contrary to thelaw of our State. The plaintiff claims that itsuffered a loss or detriment, in relying uponCL&P's promise, by foregoing its supposed rightto make a claim against CL&P for expenses arisingfrom [the] injuries. It is not claimed that theplaintiff has any other claim to assert againstCL&P other than for [the] injuries. This typeof claim, however, is prohibited by our law.Therefore, you cannot find that the plaintiffsuffered any detriment as a result of its promiseto give up a claim which is itself prohibited bylaw." (Emphasis added.)

The defendant's request to charge materiallydiffers from its claim on appeal. The defendantnow argues that the trial court erred by failingto instruct the jury that the nonviability of theclaim the plaintiff agreed to forgo is one factorfor the jury's consideration in assessing theplaintiff's reasonableness. See Dyer v. NationalBy-Products, Inc., 380 N.W.2d 732, 735-36 (Iowa1986). In its request to charge, however, thedefendant sought an instruction that thereimbursement agreement was necessarilyunenforceable because of the invalidity of theunderlying claim. The requested instruction, infact, was an inaccurate statement of the law. Dickv. Dick, supra.

Further, the defendant did not distinctly raiseits present claim by taking a seasonable exception.Practice Book 315. In accordance with the Dick standard,

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     the trial court instructed the jury that"forbearance to prosecute a cause of action, wherethe right is honestly asserted under the beliefthat it is substantial, although it may in factbe wholly unfounded, is a valuable considerationwhich will support a promise. Forbearance,however, is not a sufficient consideration unlessthe Plaintiff had some reasonable ground forbelief in the justice of the claim." See Dick v.Dick, supra. To this instruction, the defendantraised the following exception. "Finally, YourHonor, I realize that [given] your previous rulingon the motion for directed verdict you wereunconvinced by the authority of Berlinski [v.]Ovellette, [supra,] noted in my request to chargenumber 10, but I would cite that Your Honor didomit an instruction concerning the propriety ofthe claim to pursue against this Defendant therecovered sum, for both lost wages as well asmedical benefits."

Although the defendant's exception referred tothe "propriety" of the plaintiff's underlyingclaim, it drew no nexus between the claim's lackof "propriety" and the reasonableness of theplaintiff's belief. The substance of the exceptiondid no more than repeat the defendant's request tocharge. If we were to hold that this exceptiondistinctly raised the defendant's present claim,we would be requiring trial courts> to read minds.Cf. Mack v. Clinch, 166 Conn. 295, 297,348 A.2d 669 (1974) (trial court bound to charge jurycorrectly where material and important issue isbrought to court's attention). Consequently, we donot reach the merits of the defendant's firstclaim of error. Practice Book 315.


The defendant next claims that the trial courterred in denying its motions for a directedverdict. It argues that the plaintiff failedto present proof on the reasonableness

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     of the plaintiff's belief in the validityof the surrendered claim.2 We disagree.

"Directed verdicts are not favored. Puro v.Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982)."Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337(1986). "Our review of a trial court's refusalto direct a verdict or to render a judgmentnotwithstanding the verdict takes place withincarefully defined parameters. We must consider theevidence, including reasonable inferences whichmay be drawn therefrom, in the light most favorableto the parties who were successful at trial;Bleich v. Ortiz, 196 Conn. 498, 501,493 A.2d 236 (1985); giving particular weight to the`concurrence of the judgments of the judge andthe jury, who saw the witnesses and heard thetestimony . . . .' Chanosky v. City BuildingSupply Co., 152 Conn. 642, 643,211 A.2d 141 (1965). The verdict will be set aside andjudgment directed only if we find that the jurycould not reasonably and legally have reachedtheir conclusion." (Citations omitted.) BoundBrook Assn. v. Norwalk, 198 Conn. 660, 667,504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct.81, 93 L.Ed.2d 36 (1986); see Sestito v. Groton,178 Conn. 520, 522, 423 A.2d 165 (1979).

At trial, the plaintiff's personnel manager,Andrew Gionta, testified that he initiallycontacted the defendant's offices by telephonein February, 1983, regarding reimbursement forthe medical expenses and lost wages paid to theBolducs. Gionta discussed the plaintiff's claimon several occasions with Warren Porter a seniorclaims representative employed by the defendant.

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     Gionta testified that Porter agreed with himin a telephone conversation in June, 1983, toreimburse the plaintiff for expenses paid to theBolducs. Under the agreement, the defendant wouldreimburse the plaintiff by separate payments inJuly and October of 1983. Gionta subsequentlysummarized his conversation with Porter in aletter directed to Porter's attention dated June17, 1983. The letter included bills of theBolducs' expenses. Gionta testified that Porterhad suggested that the payments be made in twoinstallments, and that Gionta include bills ofthe expenses with the letter. In August, 1983,however, Porter telephoned Gionta, stating thatPorter's agreement had been "overruled" by thedefendant's attorneys "because they didn't want tojeopardize their position with the Roger Bolduccase because they hadn't settled with him yet."

On cross-examination, Gionta testified as follows:

"Q. You claim that you forebore [sic] from doingsomething as a result of what Mr. Porter told you?Is that correct?

"A. No, we had an agreement that we were goingto be reimbursed for our medical expenses.

"Q. In exchange for?

"A. In an exchange that we would give up anyclaim for wages from Mr. Bolduc.

"Q. So you would forebear [sic] from making claims?

"A. Yes, that's correct.

"Q. In exchange for CL&P's reimbursement?

"A. That is correct."

As noted above, at the conclusion of thetrial, the trial court instructed the juryon the issue of consideration in accordancewith the Dick standard. Because the jury

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     returned a general verdict for the plaintiff, wemust assume that the issue of the plaintiff'sreasonableness was found in the plaintiff's favor.LaFleur v. Farmington River Power Co., 187 Conn. 339,342, 445 A.2d 924 (1982). Considering theevidence in the light most favorable to theplaintiff; Bound Brook Assn. v. Norwalk, supra; wefind that the evidence supported a conclusion thatthe plaintiff entertained an honest and reasonablebelief that the claim it agreed to forgo, inexchange for the defendant's promise of reimbursement,was substantial. Dick v. Dick, supra.

As the evidence recited above demonstrates, theplaintiff pursued its claim against the defendantfor several months. During that period, thedefendant's representative never disparaged thevalidity of the plaintiff's claim. The parties'negotiations culminated in the agreement of June,1983, under which the defendant would reimbursethe plaintiff in exchange for the plaintiff'sforbearance from asserting any claims it may havehad against the defendant. The jury could haveinferred from this evidence that the plaintiff hadreasonable grounds for belief in the justice ofthe claim, and had asserted it in good faith. Id.;see, e.g., Carter v. Provo, 87 N.H. 369, 370,180 A. 258 (1935); cf. State ex rel. Marsh v. Lum,95 Conn. 199, 203-204, 111 A. 190 (1920). Further,while we agree with the defendant that, as ageneral rule, the party bringing an action on acontract bears the burden of production on theissue of consideration; Dodge v. Burdell, 13 Conn. 169,172 (1839); 29 Am.Jur.2d, Evidence 140; cf.Taft Realty Corporation v. Yorkhaven Enterprises,Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959)(recital of consideration in written agreement isprima facie proof of consideration); we are notpersuaded that the plaintiff was obligated attrial to raise the legal nonviability of thesurrendered claim, and then present evidence thatit had not been aware of that fact at the time it had

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     entered into the reimbursement agreement with thedefendant. We conclude, therefore, that the trialcourt did not err in denying the defendant'smotions for a directed verdict. Bound Brook Assn.v. Norwalk, supra.


The defendant next claims that the trial courterred in permitting the jury to award theplaintiff interest. The defendant concedes thatthis issue was not distinctly raised in the trialcourt;3 Practice Book 315; but argues that weshould review the claim because the trial court,in permitting the jury to determine whetherinterest was appropriate, impermissibly divesteditself of an exclusive judicial function. Cf.Bishop v. Kelly, 206 Conn. 608, 617, 539 A.2d 108(1988) (reviewing claim first raised on appealthat the trial court erred in permitting the juryto award multiple damages under General Statutes14-295).

The trial court instructed the jury that "if youfind for the Plaintiff . . . it may be entitled tostatutory interest of ten percent per year, ifthat is your judgment. Accordingly, if yourverdict is for the Plaintiff, you will determinewhether . . . interest should be awarded to thesum . . . . If that is your judgment, thencalculation of interest should be done by theCourt clerk after the verdict is accepted."

The defendant's claim is meritless. "Our caseshave recognized that interest, as an element ofdamages, is . . . a matter within the jury's province.[Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576(1984)]; see also Rosenblatt v. Berman, 143 Conn. 31,36, 119 A.2d 118 (1955); Lokes v. Kondrotas,104 Conn. 703, 709, 134 A. 246 (1926)." CantonMotorcar Works, Inc.

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     v. DiMartino, 6 Conn. App. 447, 464,505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516(1986) (applying General Statutes 37-3a); see L.F.Pace & Sons, Inc. v. Travelers Indemnity Co.,9 Conn. App. 30, 51-52, 514 A.2d 766, cert. denied,201 Conn. 811, 516 A.2d 886 (1986); Williams v.Trans-Atlantic Motors, Inc., 6 Conn. App. 616,617, 506 A.2d 1080 (1986); Nigro v. Hagearty,33 Conn. Sup. 609, 611, 364 A.2d 241 (1976). Thecases upon which the defendant relies for theproposition that "[t]he allowance of interest. . . is . . . primarily an equitabledetermination and a matter lying within thediscretion of the trial court"; Bertozzi v.McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973);involved actions tried to the court rather than tothe jury. Scribner v. O'Brien, Inc., 169 Conn. 389,391, 406, 363 A.2d 160 (1975); Southern NewEngland Contracting Co. v. State, 165 Conn. 644,645, 664, 345 A.2d 550 (1974); Bertozzi v.McCarthy, supra, 464; see also Newington v.General Sanitation Service Co., 196 Conn. 81, 90,491 A.2d 363 (1985); Milgrim v. Deluca, 195 Conn. 191,201, 487 A.2d 522 (1985); but see Leverty &Hurley Company v. Commissioner of Transportation,192 Conn. 377, 380-81, 471 A.2d 958 (1984)(ascertainment of interest in eminent domainactions is judicial function). Moreover, we havepreviously held that, where the trial courtinstructed the jury that it may award the claimantinterest, and no exception to this instruction wastaken, the trial court's instructions were notgrounds for reversal on appeal. Rosenblatt v. Berman,supra, 36-37.

There is no error.

In this opinion HEALEY, SHEA and HULL, Js., concurred.

1. Practice Book 315 provides: "The supremecourt shall not be bound to consider error as to thegiving of, or the failure to give, an instructionunless the matter is covered by a written requestto charge or exception has been taken by theparty appealing immediately after the charge isdelivered. Counsel taking the exception shall statedistinctly the matter objected to and the groundof objection. Upon request, opportunity shall begiven to present the exception out of the hearingof the jury."

2. The plaintiff argues that the defendanthas failed to brief this issue and, therefore, hasabandoned it. Assignments of error neither briefednor argued are deemed abandoned." `Assignments oferror are also deemed to be abandoned where theyare merely mentioned in the brief without anydiscussion of the particular issues mentioned.'"Stoner v. Stoner, 163 Conn. 345, 349,307 A.2d 146 (1972); Varley v. Varley, 189 Conn. 490, 504,457 A.2d 1065 (1983). Because the defendant'sbrief discusses the substance of this claim,however, we do not deem it to be abandoned.

3. The defendant argues in the alternativethat it raised the issue of the court's instructionson interest in its requests to charge. We havereviewed the defendant's requests to charge andfind nothing therein "covering" the issue ofinterest. Practice Book 315.

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