Haynes v. Yale-New Haven Hospital

699 A.2d 964, 243 Conn. 17, 1997 Conn. LEXIS 323

• Court: Supreme Court of Connecticut
• Decided: August 26, 1997
• Docket: SC 15470
• Status: Published

Opinions

Opinion

BORDEN, J.

The dispositive issues in this appeal are whether: (1) underinsured motorist benefits fall within the common-law collateral source rule; and (2) the medical malpractice allegations in the complaint are sufficient to state a claim for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff, Susan M. Haynes, as administratrix of the estate of her mother, the decedent Barbara S. Freeman, brought an action against the defendants, Yale-New Haven Hospital (Yale-New Haven) and Charles F. McKhann, a surgeon, alleging medical malpractice and CUTPA violations.² The trial court granted the defendants’ motion for summary judgment and the plaintiff appealed from the judgment rendered thereon.³ The plaintiff claims that the trial court improperly concluded that: (1) on the first count, the plaintiff could not prevail because of the common-law bar against double recovery for the same loss; and (2) on the second count, the plaintiffs allegations were legally insufficient to state a CUTPA violation. We affirm the judgment of the trial court.

The record reveals the following facts. The plaintiffs decedent was employed as a rural letter carrier for the United States postal service. On May 14, 1986, while in the course of her duties as a postal worker, the decedent was seriously injured when her vehicle was struck head-on by a vehicle driven by Alan G. Perrier. An ambulance transported the decedent to Yale-New Haven for emergency medical treatment. She was admitted to Yale-New Haven’s emergency department at approximately 12:40 p.m. and began receiving emergency medical care for a fractured left leg and a fractured pelvis. At approximately 2:15 p.m., after being in the care of the hospital for approximately one and one-half hours, the emergency room doctors noticed that the decedent was experiencing “ ‘an expanding abdominal girth.’ ” Upon this discovery, the decedent was transported to the operating room for emergency exploratory surgery. At approximately 2:30 p.m., McKhann began the surgery and, upon opening her abdomen, he discovered large amounts of blood as a result of the laceration of her spleen, which he then removed. During the surgery, however, the decedent’s circulation failed and she went into cardiac arrest. McKhann was unable to resuscitate her heart and the decedent was pronounced dead at 3:41 p.m.

The plaintiff first brought an action against Perrier, the driver of the vehicle that had struck the decedent’s vehicle, for wrongful death and other compensatory damages. The plaintiff received $20,000 from Perrier’s insurer, an amount that represented the limit of his automobile liability insurance policy. After exhausting Perrier’s policy coverage, the plaintiff then pursued a claim against Covenant Insurance Company (Covenant), the decedent’s automobile insurance carrier, which provided uninsured and underinsured motorist coverage (underinsured motorist coverage)^{4 5}in the amount of $900,000. Unable to settle the matter, the parties submitted the plaintiffs underinsured motorist claim to arbitration under the provisions of the decedent’s insurance policy. Covenant conceded Perrier’s liability, and the parties stipulated that the only issue before the arbitration panel was the amount of damages for the decedent’s wrongful death. A panel of three arbitrators determined the damages to be $650,000.® Covenant paid the plaintiff $630,000, after deducting the $20,000 that the plaintiff had recovered from Perrier’s liability carrier.

The plaintiff then commenced this action against the defendants. In the medical malpractice count, the plaintiff sought damages against both defendants on the grounds that they allegedly had failed to meet the requisite standard of care in applying emergency room care to the decedent, that the emergency department was inadequately staffed, and that the existing staff was inadequately trained and supported. In the CUTPA count, against Yale-New Haven only, the plaintiff alleged that Yale-New Haven had engaged in unfair and deceptive trade practices because, although the hospital was certified as a major trauma center, it had failed to meet the requisite standards of care for such a center for essentially the same reasons stated in the medical malpractice count. The defendants filed a special defense to the medical malpractice count, alleging that the plaintiff had already received full compensation for the harm suffered by the plaintiffs decedent. Yale-New Haven essentially denied the allegations of the CUTPA count.

The trial court granted the defendants’ motion for summary judgment on the medical malpractice count because it concluded that as a result of the plaintiffs having been fully compensated for the death of her decedent, she was precluded from pursuing this claim against the defendants by the common-law rule barring a double recovery for the same injury. In addition, the trial court rendered summary judgment on the CUTPA count, based upon the reasoning that a malpractice claim cannot be recast as a CUTPA claim. This appeal followed.

I

We first address the plaintiffs argument that underinsured motorist benefits, because of their contractual nature, are not within the ambit of the common-law rule precluding double recovery for the same harm,⁶ but, rather, come within the common-law collateral source rule.⁷ Accordingly, the plaintiff argues that the trial court improperly rendered summary judgment on the malpractice count. The defendants argue that the trial court properly found the rule barring double recovery for a single harm to be controlling. We agree with the defendants.⁸

This case forces us to confront the tension between two competing principles. The first is that a tortfeasor should not be rewarded by collateral sources that have benefited an injured party. This principle recognizes the social value in making the tortfeasor pay the injured party even for already “compensated” losses in order to prevent a windfall to the tortfeasor; 2 S. Speiser, C. Krause & A. Gans, American Law of Torts (1985 & Sup. 1997) § 8.16, p. 526; and to fulfill the general tort policy of deterring similar tortfeasors from wrongful conduct. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 4, pp. 25-26. The second, competing principle is that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste. See, e.g., 4 G. Palmer, Law of Restitution (1978 & Sup. 1997) § 23.15, p. 437. The question we must decide is which of these two policies should control in the present case.

The plaintiff contends that this conflict is resolved by the contractual basis of underinsured motorist payments. She argues that, because Covenant’s liability was based entirely upon its contract with the decedent, all payments made pursuant to the underinsured motorist insurance policy should be viewed as purely contractual in nature. Thus, according to the plaintiff, the collateral source rule should apply.

We are not persuaded that payments made pursuant to an underinsured motorist contract can be so easily classified. In our view, underinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages. Whether in any particular case underinsured motorist benefits should be treated as are other types of insurance must depend on a case-by-case analysis of the underlying purpose and the principles that apply to such benefits.

It is true that Covenant would have had no liability to the plaintiffs decedent but for the existence of the insurance contract, and that, generally speaking, an action by an insured against an underinsured motorist carrier is in form “an action in contract.” Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997). We do not dispute, moreover, that the collateral source rule would apply to various other contractual insurance payments, such as life, disability, or medical insurance. Underinsured motorist insurance, however, is unlike those traditional types of insurance, all of which pay upon proof of the occurrence of the particular loss insured against, irrespective of the legal liability of others for causing that loss. Although in form first party insurance, underinsured motorist insurance operates in part as a surrogate for a third party who lacks sufficient liability insurance. It provides benefits only upon proof that a third party, namely, an underinsured motorist for whose liability it acts as a surrogate, was a tortfeasor who injured the insured. Moreover, the amount of an underinsured motorist payment is determined, within contractual limits, by the measure of tort damages. See Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 368, 641 A.2d 783 (1994) (in order to recover under underinsured motorist policy, insured must prove amount of damages and that other motorist was underinsured and legally liable).

Thus, underinsured motorist benefits, although contractual in nature, operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor. We recognize that an underinsured motorist carrier “is not the alter ego of the tortfeasor and . . . they do not share the same legal [status].” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997). Mazziotti, however, dealt with the question of whether an insured’s underinsured motorist insurance carrier and a third party tortfeasor should be deemed in privity with each other for purposes of the doctrine of collateral estoppel. Id., 810-19. The fact that the carrier and the tortfeasor do not share a complete legal identity, and thus are not in privity with each other, does not automatically resolve the narrower question of how payments made pursuant to an underinsured motorist policy should be treated.

We do not mean to imply that claims for underinsured motorist payments must be viewed solely as sounding in tort, and not in contract. Neither classification is appropriate for all cases.⁹ Because underinsured motorist claims are sui generis, we need to go beyond labels in resolving the question posed by this case.¹⁰ Put another way, the question is not whether underinsured motorist benefits are a collateral source; the question is whether they should be treated as a collateral source, in the present factual context. We must, therefore, examine the puipose that underinsured motorist coverage is meant to serve, and decide how, as a matter of policy, including consistency with related legal principles, that specific type of insurance should be treated. We conclude that, for the particular puipose of characterizing underinsured motorist payments, the relationship in the present case between the underinsured carrier and the defendant may be viewed as analogous to that of joint tortfeasors,¹¹ and thus that the general tort rule precluding double recovery from joint tortfeasors should apply.

We begin with the fundamental principle that the purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured. “The public policy established by the [under]insured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the [under]insured motorist had maintained [an adequate] policy of liability insurance.” (Internal quotation marks omitted.) Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18, 615 A.2d 1032 (1992); see also Williams v. State Farm Mutual Automobile Ins. Co., supra, 229 Conn. 366-67; Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993). The plaintiffs argument, however, would have her recover more than her full damages — indeed, that is the whole point of her action against the defendants — solely because of her decedent’s underinsured motorist coverage. For example, had the tortfeasor motorist not been underinsured, but instead had he had adequate liability insurance, the plaintiff would have been required to bring an action against both that tortfeasor and the defendants in order to recover $650,000 for her decedent’s death,¹² which would be assessable against either or both the defendants’ and the motorist’s liability carrier. In that scenario, the plaintiff could have recovered, from either or both the tortfeasor and these defendants, a total of $650,000 and no more. As the plaintiff conceded in this court, she could not have proceeded against her decedent’s underinsured motorist carrier at that point. Under the plaintiff’s argument, however, she is in a better position because her decedent had been struck by an underinsured driver than she would have been had the same driver been fully insured. Pursuant to the plaintiffs argument, she can recover $650,000 against her decedent’s underinsured motorist insurance carrier, and then recover additional compensation from the defendants. This increase in compensation is contrary to the fundamental purpose of underinsured motorist coverage.¹³ See Gionfriddo v. Gartenhaus Cafe, 211 , 557 A.2d 540 (1989) (applying no double recovery principle to bar action under Dram Shop Act where plaintiff had already recovered full measure of damages from other, unrelated tortfeasor).¹⁴

Furthermore, the plaintiffs putative right to recover against the defendants in the present case, for the loss that her decedent’s underinsured motorist carrier has already paid, depends solely on the order of litigation in this case. This point can be illustrated by a simple hypothetical. Suppose that after the accident in this case, the tortfeasor motorist’s insurance company had refused to pay the last dollar of the motorist’s $20,000 coverage. In order to satisfy the exhaustion doctrine; see Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995); the plaintiff would have been required to bring an action against the underinsured motorist. Undoubtedly, at the same time she would have brought an action against these defendants as well, as joint tortfeasors. Under the damages in this case, the plaintiff would have been awarded a total judgment of $650,000. That judgment would have been satisfied by these defendants, or their insurers, paying $630,000 and the underinsured motorist’s liability carrier paying $20,000. In that situation, as the plaintiff acknowledged in oral argument, the plaintiff would not then have been able to make an additional claim for underinsured motorist benefits under her own policy. Thus, under that scenario, the plaintiff would recover a total of $650,000, and no more.

The only difference between the actual facts and the aforementioned hypothetical situation is the order of litigation — that is, whether the plaintiff brings an action against the defendants, before or after she recovers pursuant to her decedent’s underinsured motorist policy. Under the plaintiff’s argument, however, when she pursues her underinsured motorist policy first, as she in fact did, she can recover, not only the $650,000 that she received from her decedent’s underinsured motorist carrier, but an additional amount for the same damages when she then brings an action against the defendants. Had the exact same claims been presented in a different order, however — namely, an action against the defendants first, rather than second — she agrees that she could recover only a total of $650,000. Stating the plaintiff’s position in this manner demonstrates why it must fail, for it would be bizarre to say that the law permits a double recovery depending on the order of litigation of the plaintiffs claims. Cf. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302, 695 A.2d 1051 (1997). Put another way, it cannot be the law that underinsured motorist benefits are, or are not, a “collateral source” depending solely on when they are sought.¹⁵

Finally, the equities do not weigh substantially in favor of the plaintiffs position. Precluding the plaintiff from obtaining double recovery does not deprive the decedent of the benefit for which she paid her underinsured motorist premium, namely, a guaranteed recovery of her wrongful death damages, subject to contractual limits, despite the fact that she was hit by an underinsured motorist, and whether there was a joint tortfeasor who could also be held liable. The only thing she is deprived of is the opportunity to recover more than she paid for. Moreover, although we acknowledge the general notion that a defendant, if indeed negligent, should be held accountable, our conclusion does not create an inappropriate windfall for the defendants. It is no more of a windfall to the defendants in this case to bar recoveiy against them than it was a windfall to the nightclub in Gionfriddo to bar recovery against it. Whenever the principle against double recovery is applied as between various tortfeasors, or tortfeasor surrogates, one of the parties escapes at least some degree of liability. In such cases, however, the policy behind the fundamental principle barring double recovery; see footnote 6 of this opinion; simply is deemed to outweigh the policy behind the collateral source rule. See footnote 7 of this opinion. Such a consequence is, therefore, not a windfall under the law, but rather a necessary consequence of a fundamental policy choice. See RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 386, 650 A.2d 153 (1994).

II

We next address the issue of whether the plaintiffs CUTPA count against Yale-New Haven sufficiently stated a claim pursuant to § 42-110a et seq.¹⁶ The trial court rendered summary judgment on this count because it concluded that the second count of the plaintiffs complaint was merely a negligence claim recast as a CUTPA claim and that it was therefore legally insufficient.¹⁷ The plaintiff argues that her allegations of negligence can support a CUTPA claim because Yale-New Haven held itself out to be a major trauma center even though it allegedly did not meet those standards. We disagree.

We previously have concluded “that the provision of medical services falls within CUTPA’s definition of trade or commerce as ‘the distribution of any services . . . .’ General Statutes § 42-110a (4).” Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). Fink, however, was based upon the entrepreneurial or business aspects of providing medical services. Id., 185-88. In Fink, the dispute that gave rise to a violation of CUTPA involved a situation in which “the defendant took certain actions designed to usurp the business and clientele of one [professional] corporation in favor of another . . . [that] placed him in direct competition with the interests of the [professional] corporation.” (Citations omitted; internal quotation marks omitted.) Id., 212-13.

The trial court in the present case, relying on A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990), held that negligence could not be a basis for a CUTPA claim. The trial court then determined that the allegations were based solely on negligence and rendered summary judgment. We agree with the trial court that the plaintiffs CUTPA count does not allege a sufficient cause of action, but for different reasons.

In A-G Foods, Inc., we held that “the first prong [of the ‘cigarette rule’], standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence.” Id.¹⁸ We agreed with the defendant in A-G Foods, Inc., that “its negligence was not an unfair or deceptive trade practice within the meaning of General Statutes § 42-110b (a).” Id., 215. We also stated that “[c]learly [the defendant’s] negligence did not constitute an ‘immoral, unethical, oppressive or unscrupulous’ practice.” Id., 216-17. Subsequently, this court stated that A-G Foods, Inc., stands for the proposition “that there is no CUTPA violation when the sole basis of the claim is the defendant’s negligence and the jury determines that the plaintiff was contributorily negligent.” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995). In Williams Ford, Inc., however, we made clear that we did not decide “whether negligence of the defendant alone, unaccompanied by contributory negligence of the plaintiff, [could] establish a CUTPA violation” because the plaintiffs in Williams Ford, Inc. were found to have been contributorily negligent.¹⁹ Id., 591 n.25. Indeed, we specifically left that issue open for another day. Id. Likewise, in the present case we do not decide whether negligence alone is sufficient to support a CUTPA violation.

We conclude that professional negligence — that is, malpractice — does not fall under CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA. “Although an attorney is not exempt from CUTPA; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); we made it clear in Heslin that we were not deciding ‘whether every provision of CUTPA permits regulation of every aspect of the practice of law . . . .’ Id., 520. We have held that it is important not to ‘interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’ Mozzochi v. Beck, [204 Conn. 490, 497, 529 A.2d 171 (1987)]. This public policy consideration requires us to hold that CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — should be excluded for public policy reasons. See Krawczyk v. Stingle, 208 Conn. 239, 246, 543 A.2d 733 (1988).” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 730-31, 627 A.2d 374 (1993) (Berdon, J., concuriing).

Other jurisdictions have reached a similar result with respect to the medical profession. The Washington Court of Appeals has held that although the entrepreneurial or commercial aspects of the practice of medicine are covered as “trade or commerce” under that state’s consumer protection act, violations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence. See Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (holding that claims that relate to “actual competence of the medical practitioner” are not recognized under state’s consumer protection act, but claims implicating entrepreneurial aspects of practice of medicine may be sufficient), rev. denied, 107 Wash. 2d 1032 (1987); see also Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) (applying Washington law, Court of Appeals concluded that “Washington has recognized that both the practice of law and medicine may give rise to [consumer protection act] claims. . . . These may arise, however, only when the actions at issue are chiefly concerned with ‘entrepreneurial’ aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the ‘competence of and strategy’ employed by the . . . [defendant].” [Citations omitted.]); Eriks v. Denver, 118 Wash. 2d 451, 465, 824 P.2d 1207 (1992) (adopting “entrepreneurial” test from Quimby and applying it in legal malpractice setting); Jaramillo v. Morris, 50 Wash. App. 822, 827, 750 P.2d 1301 (relying on Quimby and holding that negligence claims against hospital were not cognizable under state’s consumer protection act because “[t]he entrepreneurial aspects of the hospital’s business, such as billing, were not implicated”), rev. denied, 110 Wash. 2d 1040 (1988); Burnet v. Spokane Ambulance, 54 Wash. App. 162, 166-67, 772 P.2d 1027 (relying on Quimby and Jaramillo in holding that negligence claims asserted against hospital did not include entrepreneurial aspect of hospital’s operations, so that claims fell outside reach of state’s consumer protection act), rev. denied, 113 Wash. 2d 1005 (1989).

Just recently, the Michigan Court of Appeals addressed this same issue in Nelson v. Ho, 222 Mich. App. 74, 564 N.W.2d 482 (1997). In Nelson, the court held that “it would be improper to view the practice of medicine as interchangeable with other commercial endeavors and apply to it concepts that originated in other areas. . . .²⁰ Therefore, a blanket inclusion in the [state consumer protection act] for physicians would also be improper. Consequently, we . . . hold that only allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician’s practice may be brought under the [consumer protection act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper. We do not consider the [legislature’s use of ‘trade or commerce’ in defining the application of the act to exhibit an intent to include the actual performance of medical services or the actual practice of medicine. If we were to interpret the act as such, the legislative enactments and well-developed body of law concerning medical malpractice could become obsolete. . . . Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in ‘trade or commerce’ within the purview of the [consumer protection act].” (Citation omitted.) Id., 83-84; see also Gadson v. Newman, 807 F. Sup. 1412, 1416 (C.D. Ill. 1992) (applying Illinois law, District Court determined that in order to bring claim against health care provider under consumer fraud act, “[t]he distinction between the business aspects [of] medicine and the ‘actual practice of medicine’ or the non-business aspects of medicine is crucial”).

We find these decisions persuasive, and conclude that their reasoning is equally applicable to CUTPA claims. We appreciate, however, that “[i]t would be a dangerous form of elitism, indeed, to dole out exemptions to our [consumer protection] laws merely on the basis of the educational level needed to practice a given profession, or for that matter, the impact which the profession has on society’s health and welfare.” United States v. National Society of Professional Engineers, 389 F. Sup. 1193, 1198 (D.D.C. 1974). A blanket exemption for the medical profession would therefore be improper. Nelson v. Ho, supra, 222 Mich. App. 83. We thus conclude that the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, we must review the plaintiffs allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim.

The plaintiff alleged that Yale-New Haven was certified as a major trauma center and held itself out as such, but failed to staff the emergency department adequately, and that it failed to train and support adequately its existing staff to meet the applicable standards for a major trauma center. The plaintiff further alleged that Yale-New Haven also failed, with respect to emergency room procedures, to meet the standards for a major trauma center.²¹ It is undisputed that Yale-New Haven was certified as a major trauma center. Therefore, it was not a misrepresentation when it held itself out as certified. By holding itself out as a major trauma center, however, it was representing to the public that it would meet the applicable standards of competency for a major trauma center. We conclude that this representation is simply what all physicians and health care providers represent to the public — that they are licensed and impliedly that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice. The trial court properly rendered summary judgment on the CUTPA count because no unfair or deceptive practices were alleged.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and PALMER and PETERS, Js., concurred.

2 The plaintiff also brought claims for wrongful retention of moneys paid for medical services rendered on behalf of the decedent by a federal agency, and for breach of an implied contract, both of which were subsequently withdrawn.

3 The plaintiff appealed from the trial court’s granting of the motion for summary judgment to the Appellate Court, and we transferred the appeal to this court, pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). After oral argument, this court ordered reargument en banc, and the filing of supplemental briefs limited to the following issue: “Under the circumstances of this case, should the $650,000 received by the plaintiff for her decedent’s death be treated as: (1) a payment by a collateral source that does not bar the plaintiffs suit against the defendant Yale-New Haven Hospital; or (2) full compensation for the loss of the decedent’s life that does bar the plaintiffs suit against the defendant Yale-New Haven Hospital?”

4 Throughout, this discussion, all references to “underinsured” motorist coverage encompass uninsured motorist coverage as well.

5 Accordingly, because the plaintiff and Covenant stipulated before the arbitration panel that “the only issue is just damages for [the decedent’s] death, the loss of earning capacity, conscious pain and suffering, [and] loss of enjoyment of life’s activities,” for purposes of this case the $650,000 award must be considered the full legal value of the damages. The plaintiff does not dispute this fact. Moreover, as a rule, the decision of an arbitration panel is binding as res judicata in a subsequent judicial proceeding. See, e.g., Fink v. Golenbock, 238 Conn. 183, 195, 680 A.2d 1243 (1996).

6 The rule precluding double recovery is a “simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury. . . . Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. . . . The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. . . . Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” (Citations omitted; internal quotation marks omitted.) Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71-73, 557 A.2d 540 (1989).

7 “The collateral source rule provides that a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him. . . . The basis of [this] rule is that a wrongdoer shall not benefit from a windfall from an outside source. That rule is applicable ... in any tort case.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 556-57, 590 A.2d 914 (1991).

8 We acknowledge that many jurisdictions agree with the plaintiff that underinsured motorist benefits should be treated as a collateral source that does not affect the insured’s right of recovery against a different tortfeasor. See, e.g., International Sales-Rentals Leasing Co. v. Nearhoof, 263 So. 2d 569, 571 (Fla. 1972) (joint tortfeasor not entitled to setoff equal to amount of recovery injured plaintiff received from his uninsured motorist coverage carrier); Respess v. Carter, 585 So. 2d 987, 988-90 (Fla. App. 1991) (same); State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, 226 Ga. 310, 311-12, 174 S.E.2d 920 (1970) (same). For the reasons expressed herein, however, we agree with those cases, though fewer in number, that hold to the contrary. See, e.g., Petrella v. Kashlan, 826 F.2d 1340, 1344 (3d Cir. 1987) (under New Jersey law, recovery on underinsured motorist coverage should be regarded as same as recovery from tortfeasor, because both dependent on there being underlying tort); Cooper v. Aplin, 523 So. 2d 339 (Ala. 1988) (satisfaction of litigated judgment against uninsured motorist carrier prevents subsequent action against other tortfeasors); Waite v. Godfrey, 106 Cal. App. 3d 760, 773, 163 Cal. Rptr. 881 (1980) (uninsured motorist benefits not collateral source).

9 The plaintiff relies upon Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 370 A.2d 1006 (1976), to support her argument that underinsured motorist payments are purely contractual in nature, and thus that the collateral source rule should apply. In Pecker, we held that “an insurer making payment under the [underjinsured motorist coverage provisions of its policy makes that payment ‘on behalf of the insured, not the uninsured motorist.” Id., 452; see also Regs., Conn. State Agencies § 38a-334-6 (a). We do not dispute that, because they are based on the insured’s contract with her underinsured carrier, the benefits are paid on her behalf. This fact, however, in and of itself, is not dispositive of the manner in which we should treat such payments in the context of the present case. Even if they are made “on behalf of’ the insured, underinsured motorist payments are still exclusively premised upon a third party’s tort liability. Pecker, therefore, does not resolve the fundamental tension caused by the hybrid nature of underinsured motorist coverage.

10 Indeed, the peculiar hybrid nature of underinsured motorist insurance limits the utility of broad statements of policy, such as those found in the Restatement of Judgments and the Restatement of Torts. For example, the Restatement of Judgments notes that, with regard to the tension between the collateral source rule and the principle against double recovery for the same loss, “[wjhich one of those concepts governs depends on whether the person providing the payments in question is assimilated to a co-obligor of the judgment debtor or to a casualty insurer of the injured party. ” (Emphasis added.) 2 Restatement (Second), Judgments § 50, comment (e) (1982). As previously observed, however, underinsured motorist coverage is unlike casualty insurance, which pays for the loss irrespective of who is legally liable for the loss.

Similarly, the Restatement of Torts directs that “[p]ayments made by one who is not himself liable as a joint tortfeasor will go to diminish the claim of the injured person against others responsible for the same harm if they are made in compensation of that claim, as distinguished from payments from collateral sources such as insurance, sick benefits, donated medical or nursing services, voluntary continuance of wages by an employer, and the like.” (Emphasis added.) 4 Restatement (Second), Torts § 885 (3), comment (f) (1979). The reference to “insurance,” however, does not provide real guidance for the question before us. Although life and medical insurance, for example, are likely contemplated by this reference, they are types of insurance that, uiilike underinsured motorist coverage, do not depend on proof of an underlying tort and do not act as a surrogate for the tortfeasor’s liability coverage. Indeed, because underinsured motorist payments do act as a surrogate for tort liability, they can reasonably be seen as being made “in compensation of’ the underlying tort injury. Accordingly, this passage can be read both as supporting and precluding the plaintiffs recovery against the defendants in the present case, depending on which portion of the passage one emphasizes.

11 Under the plaintiffs allegations against the defendants in the present case, it is clear that the underinsured motorist tortfeasor himself and the defendants were joint tortfeasors because the decedent did not die solely from her injuries from the accident, but also because of the defendants’ alleged negligence. Analytically, in terms of basic tort principles, the underinsured motorist’s conduct was a proximate cause of the death, and another, concurrent proximate cause was the defendants’ alleged negligence. The underinsured motorist carrier was liable for the entire wrongful death damages of $650,000, reduced by the $20,000 collected from the tortfeasor’s liability carrier, only because the defendants’ subsequent negligence was not, under the plaintiffs allegations, an independent, intervening cause that cut off the underinsured motorist’s negligence.

12 For convenience, we carry the damages for the decedent’s death in this case over into our hypothetical.

13 At oral argument, the plaintiff attempted to avoid this double recovery problem by reference to § 38a-334-6 (e) of the Regulations of Connecticut State Agencies, which provides: “Recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s right of action to recover for bodily injury from any third party.” The plaintiff argues that this regulation would allow Covenant to seek reimbursement or restitution from the plaintiff, should the plaintiff prevail in her ease against the defendants subsequent to receiving payment from Covenant, and, moreover, that barring the plaintiff from pursuing her claim against the defendants would effectively nullify the regulation.

The problem with the plaintiffs position is that, as the plaintiff acknowledged at oral argument, this court has never decided whether this regulation permits an underinsured motorist carrier that has paid benefits to its insured, in a case such as this, to create in its policy a right over, not only against the underinsured motorist whose conduct was the risk that was insured against, but against a different, joint tortfeasor. Cf. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 672 A.2d 939 (1996). We need not decide that question until a case presents it, which the present case does not. The plaintiff has nowhere alleged, nor is there any indication in the record, that such a subrogation or reimbursement clause was contained in the decedent’s contract with Covenant. Accordingly, whether the existence of such a clause could have obviated the present double recovery problem is not before the court in this case. Our conclusion, however, that, in the absence of such a clause, there is a double recovery problem does not bear on the effect of the regulation when such a clause is present. If there were such a clause, however, and if it did operate against the defendants in this case as the plaintiff suggests, the net effect would still be that the plaintiff would recover nothing furl,her, because she would be required to hold the proceeds of her action against the defendants “in trust” for Covenant.

14 In Gionfriddo v. Gartenhaus Cafe, supra, 211 Conn. 71-72, we relied on the principle, recognized since at least 1863, that “[t]he possible rendition of multiple judgments does not . . . defeat the proposition that a litigant may recover just damages only once.” Indeed, in Gionfriddo we recognized that the principle against double recovery for the same loss applies in both tort and contract law. See id., 74 n.9. To the extent, therefore, that the present case involves both contract law — the contract of underinsured motorist coverage — and tort law — the action against the defendants — the same principle against double recovery should apply.

15 Of course, one could also resolve the order of litigation problem by, instead of precluding double recovery whatever the order of litigation, as we choose to do, allowing the plaintiff to maintain her additional claim against the underinsured motorist carrier even after receiving full compensation from the two tortfeasors. The plaintiff does not, however, argue for such a rule. In any event, we believe that that would be an even more bizarre result than what the plaintiff is seeking.

16 General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

General Statutes § 42-110g (a) provides: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public irvjury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”

17 We review this issue, as the plaintiff and the defendants did in their arguments before this court, as if the motion for summary judgment were a motion to strike testing the legal sufficiency of the allegations of the CUTPA claim. Accordingly, we decide the issue raised by the parties as if the allegations of fact were true.

18 “In determining whether certain acts constitute a violation of [CUTPA], we have adopted the criteria set out in the cigarette rule by the federal trade commission ... (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].” (Emphasis added; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).

We have previously noted that “[a]U three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155-56, 645 A.2d 505 (1994).

19 In Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 590, 593, the underlying claim was negligent misrepresentation and the plaintiffs were found to have been 10 percent contributorily negligent.

20 In Nelson, the Michigan Court of Appeals relied on statements made by the United States Supreme Court in Goldfarb v. Virginia State Bar, 421 U.S. 773, 786 n.15, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975). Specifically, the Court of Appeals stated: “This theoretical distinction [between learned professions and the practice of a trade] was specifically addressed in Goldfarb . . . where the United States Supreme Court considered the issue of whether a minimum-fee schedule for lawyers enforced by the Virginia State Bar constituted price-fixing in violation of the Sherman Act.... The state bar argued that it was exempt from the Sherman Act because the practice of law was a ‘learned profession,’ not ‘trade or commerce.’ The . . . Court stated that while ‘it would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas,’ [id., 788 n. 17] . . . ‘[i]t is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect.’ [Id., 788].” (Citations omitted.) Nelson v. Ho, supra, 222 Mich. App. 79-80. As the Court of Appeals in Nelson noted, “[sjubsequently, in Arizona v. Maricopa County Medical Society, 457 U.S. 332, 102 S. Ct. 2466, 73 L. Ed. 2d 48 (1982), the United States Supreme Court, relying in part on Goldfarb, struck down . . . the defendant’s maximum-price schedule for fees charged by doctors for services provided” as price fixing in violation of the Sherman Act. Nelson v. Ho, supra, 80 n.3.

21 The crux of the plaintiffs allegations in the CUTPA count are as follows: “In order best to qualify to treat such emergency and trauma patients and to draw and receive them, defendant Hospital has sought classification and holds and held itself out as a major trauma center. Nevertheless, by virtue of the inadequate, inadequately trained, and inadequately supported, staffing, and the other failures in respect of emergency and trauma patients alleged in [the medical malpractice count regarding emergency room care] . . . defendant Hospital did not duly meet the standards of such a major trauma center.”