Civiello v. Owens-Corning Fiberglass Corp.

544 A.2d 158, 208 Conn. 82, 1988 Conn. LEXIS 166
CourtSupreme Court of Connecticut
DecidedJune 28, 1988
Docket13243
StatusPublished
Cited by36 cases

This text of 544 A.2d 158 (Civiello v. Owens-Corning Fiberglass Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Civiello v. Owens-Corning Fiberglass Corp., 544 A.2d 158, 208 Conn. 82, 1988 Conn. LEXIS 166 (Colo. 1988).

Opinion

Shea, J.

In this action to recover damages for the collapse of the roof and walls of a building in the town of Glastonbury, owned by the plaintiff Daniel Civiello and leased to the plaintiff Cycle World, Inc., a jury returned a verdict of $153,522 against the defendant National Lumber Company.1 The defendant filed a motion to set aside the judgment and, alternatively, for a remittitur. A remittitur of $36,000 was ordered on the ground, as had been stipulated by the parties, that the plaintiffs had received that sum before trial from two other original defendants in settlement of the claims against them. The plaintiffs filed an acceptance of the remittitur purporting to reserve without prejudice the right to appeal from the determination of the court that they were not entitled to interest in accordance with General Statutes § 52-192a (b),2 which [84]*84allows interest where a plaintiff “has recovered an amount equal to or greater than” his offer of judgment. The plaintiffs had filed an offer of judgment of $125,000 about four months after commencing suit, and, if § 52-192a (b) were satisfied, would have been entitled to interest at 12 percent “computed from the date such offer was filed.” General Statutes § 52-192a (b). The defendant filed an objection in the trial court to the conditional acceptance of the remittitur, but the objection was overruled. The plaintiffs filed their appeal from the “[¡judgment denying interest on the plaintiffs’ offer of judgment.”

This appeal presents two issues: (1) a jurisdictional question, whether a plaintiff who has accepted a remittitur order may, nevertheless, appeal from the judgment containing that order;* *3 and (2) an issue of statutory construction, whether a plaintiff who has obtained a jury verdict for an amount in excess of his offer of judgment, when that verdict later is properly reduced by [85]*85the trial court to a sum less than that offer, is entitled to interest pursuant to § 52-192a (b) for having “recovered an amount equal to or greater than” his offer of judgment. We hold that we have jurisdiction to entertain the appeal but that the amount of the judgment rather than the verdict must be compared with the amount of the offer of judgment in deciding whether a plaintiff is entitled to interest under the statute. Accordingly, we find no error.

I

A

The parties appear to have assumed that the jurisdictional issue is one of first impression in 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 a plaintiff, who had refused to file a remittitur and had taken an appeal from an order conditionally setting aside the verdict, that, if his appeal should prove unsuccessful, we should direct judgment for the amount to which the verdict would have been reduced if the remittitur had been accepted. “[The plaintiff] cannot be allowed to speculate upon his chances, and now, without a new trial, recover a judgment for the amount which he rejected in the Superior Court.” Id. In an earlier case approving the practice of ordering a remittitur where the damages awarded by a jury were clearly excessive, we recognized that an order of remittitur presented a plaintiff with a choice of two alternatives: “The plaintiff is not compelled to remit the sum suggested by the trial court, but may elect either to submit to a new trial, or to seek, [86]*86by an appeal to this court ... to have the order of new trial reversed and judgment rendered for the 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 to order an appropriate remittitur for a verdict found to be excessive on appeal, this court has exercised its own prerogative to order a remittitur 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 significant precedent, Beers v. New York, N.H. & H. R. Co., supra, exceeds a half century, the United States Supreme Court more recently has resolved conflicts among the federal courts in favor of adhering to “[a] line of decisions stretching back to 1889” holding that a plaintiff cannot, by accepting the order under protest, “appeal the propriety of a remittitur order to which he has agreed.” Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S. Ct. 835, 51 L. Ed. 2d 112 (1977). The court upheld the Second Circuit Court of Appeals in dismissing the appeal for lack of a final judgment. Donovan v. Penn Shipping Co., 536 F.2d 536 (2d Cir. 1976). The Second Circuit majority opinion, in addition to reliance upon precedent, had stressed three grounds in support of its position: (1) “[t]he proliferation of appeals would be the inevitable consequence” of permitting a plaintiff, who “would have nothing to lose” after guaranteeing himself a minimum verdict, to appeal under protest in an attempt to restore the original verdict; id., 537; (2) the policy against piecemeal appeals embodied in the final judgment rule would be violated by sanctioning an appeal from a conditional order for a new trial; and (3) “in [87]*87those rare instances where a second trial is required, it provides yet an additional gauge by which the court of appeals can judge the propriety of the remittitur.” Id., 538. These considerations, particularly those relating to efficient judicial administration, were sufficient, in the view of the majority, to overcome the concern of the minority that such a restriction upon a plaintiff is grossly unfair in depriving him of “any real opportunity .to challenge the judge’s use of a remittitur.” Id., 539 (Feinberg, J., dissenting).

A majority of the state courts that have considered the issue have held that at common law the plaintiff who accepts a remittitur in lieu of a new trial is bound by his election and cannot appeal from the judgment ordering the remittitur. Annot., 16 A.L.R.3d 1327, 1329; W. Maywhort, “Remitting Parties’ Right to Cross-Appeal,” 49 N.C.L. Rev. 141 (1970). The rule has been abrogated by statute in at least one state. Tenn. Code Ann. §§ 20-10-102, 20-10-103. It has been modified by statute or judicial decision in several states to permit a plaintiff to file a cross appeal from a remittitur order where the defendant has initiated the appeal, a situation in which considerations of efficient judicial administration would favor the disposition of all of the issues in one appeal. Neb. Rev. Stat.

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Bluebook (online)
544 A.2d 158, 208 Conn. 82, 1988 Conn. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/civiello-v-owens-corning-fiberglass-corp-conn-1988.