DiLieto v. County Obstetrics & Gynecology Group, P.C. ( 2015 )

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MICHELE DILIETO ET AL. v. COUNTY OBSTETRICS
AND GYNECOLOGY GROUP, P.C., ET AL.
(SC 19297)
Palmer, Zarella, McDonald, Espinosa and Robinson, Js.
Argued December 4, 2014—officially released May 19, 2015
Jeffrey R. Babbin, with whom was Benjamin M. Dan-
iels, for the appellants (named defendant et al.).
Alinor C. Sterling, with whom was Rodney S. Margol,
for the appellee (named plaintiff).
Opinion
PALMER, J. When this case was last before this court,
we concluded that the trial court, Shaban, J., had
applied the wrong legal standard in concluding that
the named plaintiff, Michele DiLieto (plaintiff), was not
entitled to postjudgment interest under General Stat-
utes (Rev. to 1995) § 37-3b1 following a judgment in her
favor against the named defendant, County Obstetrics
and Gynecology Group, P.C., and the defendants Scott
Casper, a physician, and Yale University School of Medi-
cine,2 arising out of their medical malpractice. DiLieto
v. County Obstetrics & Gynecology Group, P.C., 310
Conn. 38, 41, 46, 74 A.3d 1212 (2013) (DiLieto III).
Accordingly, we remanded the case to the trial court for
consideration of the plaintiff’s request for postjudgment
interest under the correct legal standard. See id., 60.
Thereafter, on November 5, 2013, the trial court, Agati,
J., awarded the plaintiff postjudgment interest, calcu-
lated at an annual rate of 8 percent, from July 14, 2006,
the date of the underlying judgment, until October 28,
2010, the date on which the judgment was satisfied, in
the amount of $3,178,696.70. The trial court also
awarded the plaintiff interest, calculated at an annual
rate of 3 percent, on the postjudgment interest award,
from October 28, 2010, until that award is paid in full.
On appeal,3 the defendants contend that the trial court,
in awarding 8 percent interest on the underlying judg-
ment, improperly considered the rate of return on cer-
tain investments that the plaintiff claims she would have
earned if the judgment had been satisfied in a timely
manner. Although the defendants do not challenge the
authority of the trial court to award interest on the
postjudgment interest award, they do contend that the
court improperly awarded such interest from October
28, 2010, the date on which the judgment was satisfied,
rather than from November 5, 2013, the date on which
the trial court awarded postjudgment interest. We reject
the defendants’ first claim but agree with their second
claim. Accordingly, we reverse in part the order of the
trial court.
The relevant facts and procedural history are not
disputed. The plaintiff commenced this action, alleging,
inter alia, that the defendants negligently had removed
her reproductive organs and pelvic lymph nodes. Id.,
41. Following a trial, the jury found the defendants
liable and awarded the plaintiff $5.2 million.4 DiLieto
v. County Obstetrics & Gynecology Group, P.C., 297
Conn. 105, 124, 998 A.2d 730 (2010) (DiLieto II). The
trial court, Eveleigh, J., rendered judgment in accor-
dance with the jury verdict and, in addition, awarded
the plaintiff $5,886,113.64 in offer of judgment interest
pursuant to General Statutes (Rev. to 1997) § 52-192a,
as well as costs, for a total award of $11,110,045.79. Id.,
109–10, 124. The defendants appealed, and we affirmed
the judgment except with respect to the award of offer
of judgment interest, which we concluded was calcu-
lated from an incorrect date. See id., 109, 145, 164. We
therefore remanded the case to the trial court with
direction to award offer of judgment interest from the
correct date; id., 164; which resulted in a revised total
award in the amount of $9,255,140. Thereafter, the plain-
tiff filed a motion for, inter alia, postjudgment interest
on the revised award pursuant to § 37-3b. DiLieto v.
County Obstetrics & Gynecology Group, P.C., supra,
310 Conn. 42. The trial court, Shaban, J., denied that
portion of the motion seeking postjudgment interest,
concluding that, because the defendants were under no
legal duty to pay the judgment during the pendency of
their appeal, the plaintiff had failed to demonstrate that
the defendants ‘‘wrongfully’’ had detained money that
was due and payable to the plaintiff under the judgment,
the standard that this court had used in addressing
claims for interest under General Statutes § 37-3a;5 id.,
43; which governs interest awards in certain civil
actions not involving negligence.
The plaintiff appealed from the trial court’s denial
of postjudgment interest, claiming that the trial court
incorrectly had applied the wrongful detention standard
of § 37-3a in concluding that she was not entitled to
postjudgment interest under § 37-3b. Id. After clarifying
the standard that we had applied for purposes of § 37-
3a, we agreed with the plaintiff and reversed the trial
court’s decision. See id., 47–54, 60. We explained that,
‘‘although the standard for an award of interest is the
same under both § 37-3a and . . . [§ 37-3b], the trial
court misconstrued that standard in denying [the plain-
tiff’s] motion for postjudgment interest under § 37-3b.
. . . [I]n the context of § 37-3a, a wrongful detention
of money, that is, a detention of money without the
legal right to do so, is established merely by a favorable
judgment on the underlying legal claim, so that the
court has discretion to award interest on that judgment,
without any additional showing of wrongfulness, upon
a finding that such an award is fair and equitable. Conse-
quently, contrary to the determination of the trial court,
the fact that a defendant has a legal right to withhold
payment under the judgment during the pendency of
an appeal is irrelevant to the question of whether the
plaintiff is entitled to interest under § 37-3a.’’ Id., 48–49.
In light of our determination, we remanded the case to
the trial court for consideration of the plaintiff’s request
for postjudgment interest under the correct legal stan-
dard. See id., 60. In doing so, we observed that § 37-3b
does not identify any factors that the trial court either
must or should consider in deciding whether to award
postjudgment interest, and, therefore, the trial court
was free to consider any factors that it deemed relevant
to that determination. Id., 54.
On remand, the plaintiff filed an amended motion for
an award of postjudgment interest, calculated at an
annual rate of 10 percent, the maximum rate allowed
under § 37-3b, from July 14, 2006, the date of the under-
lying judgment in the medical malpractice action, until
October 28, 2010, the date on which that judgment was
satisfied. She also sought interest calculated at an
annual rate of 10 percent on the postjudgment interest
award, from October 28, 2010, until that award is paid
in full. In lieu of presenting evidence, the parties filed
a stipulation with the court as to the rate of return on
certain investments that the plaintiff could have earned
if the defendants had paid the judgment in a timely
manner. Specifically, the parties stipulated that the
annual interest rates for the one year United States
Treasury bill, the three and ten year United States Trea-
sury notes, and the twenty and thirty year United States
Treasury bonds, consistently averaged at or below 5
percent during the relevant time period.6 The parties
also agreed that, during the relevant time period, the
compounded rate of return on gold, the Vanguard
Emerging Markets Stock Index Fund and the Vanguard
Long Term Treasury Fund was 17.9 percent, 12.1 per-
cent, and 9.7 percent, respectively. The stipulation fur-
ther provided that the plaintiff, if called as a witness,
would testify that, if the judgment had been satisfied
at the time it was rendered, she would have invested
the money ‘‘in long-term Treasury bills.’’ Finally, pursu-
ant to the stipulation, the parties reserved the right to
make any arguments based on the stipulated facts or
any other part of the record, and the plaintiff acknowl-
edged that the defendants were free to argue that the
court should deny the plaintiff’s motion for postjudg-
ment interest in its entirety.
Subsequently, on October 31, 2013, the trial court,
Agati, J.,7 held a hearing at which the defendants argued
that the plaintiff’s motion for postjudgment interest
should be denied because the plaintiff already had been
well compensated for her injuries by virtue of the jury
award of more than $5 million and the award of more
than $4 million in offer of judgment interest. The defen-
dants further argued, however, that, if the court does
award postjudgment interest, it should do so at a rate
of 3 percent because interest rates during the relevant
time period were at historic lows. The defendants also
argued that, in choosing a rate of interest, the court
should not consider the rates of return on certain specu-
lative investments that the plaintiff claims she would
have earned if the judgment had been satisfied in a
timely manner. Rather, they maintained, the court
should base the award solely on the rates of interest
that were available on United States Treasury securities
or other risk-free investments. Finally, the defendants
urged the court to reject the plaintiff’s request for inter-
est on the postjudgment interest award from October
28, 2010, because, the defendants argued, interest on
an award of damages does not begin to accrue until the
award is made, and the trial court had not yet decided
whether to award the plaintiff any postjudgment
interest.
On November 5, 2013, the trial court awarded the
plaintiff postjudgment interest at an annual rate of 8
percent, from July 14, 2006, until October 28, 2010, in
the amount of $3,178,696.70. The trial court also
awarded the plaintiff interest on the postjudgment inter-
est award, calculated at an annual rate of 3 percent,
from October 28, 2010, until the award is paid in full.
In support of its decision, the trial court stated that it
had reviewed the parties’ stipulation and ‘‘considered
the various factors as presented by the parties which
militate for or against an award of postjudgment inter-
est. The court is cognizant of the fact that it was the
policy of this state to award postjudgment interest man-
datorily in this type of action for many years prior to
1981, and it has been the state’s policy to do so since
May 27, 1997. The court is following the . . . Supreme
Court’s direction that a paramount factor for the trial
court to consider in deciding whether to award post-
judgment interest is the purpose of such interest,
namely, to compensate the prevailing party for the loss
of the use of the money owed from the date of the
judgment until the date that the judgment is paid.’’
(Emphasis omitted; internal quotation marks omitted.)
The trial court further stated that it had considered
the parties’ arguments with respect to whether the court
was authorized to award interest on the postjudgment
interest award from October 28, 2010, the date on which
the judgment was satisfied. The court concluded that
it was so authorized, reasoning that ‘‘the postjudgment
interest should have been awarded and included at the
time payment was made in satisfaction of the judgment.
However, this [did not occur]. Instead, there was an
appeal and additional postjudgment motions, which
have delayed the payment of . . . postjudgment inter-
est to the plaintiff. As the Supreme Court made clear
in DiLieto III, the plaintiff is to be compensated for
the loss of the use of the money owed from the date
of the judgment until the judgment is paid.
‘‘In view of the fact that the judgment is modified to
include [the] postjudgment interest . . . now awarded
by this court, the judgment is as of this date not satisfied.
‘‘Therefore, the court orders that postjudgment inter-
est be paid on the unsatisfied portion of the judgment,
i.e., the $3,178,696.70, at the rate of [3] percent per year
from the date it was due, i.e., October 28, 2010, until
the total judgment is paid in full.’’
The defendants appealed from the trial court’s order
to the Appellate Court. Before we transferred the appeal
to this court, the defendants filed a motion for articula-
tion in which they requested that the trial court explain
the legal and factual bases for its decision to award 8
percent postjudgment interest on the judgment and 3
percent interest on the postjudgment interest award
from October 28, 2010. After the trial court denied the
defendants’ motion, the Appellate Court granted, in
part, the defendants’ motion for review and ordered
the trial court to articulate the legal and factual bases
for its decision to award postjudgment interest at a rate
of 8 percent on the judgment. In response, the trial
court issued the following articulation: ‘‘The factual
basis was what the court reviewed by way of stipulation
of the parties regarding varying interest rates that could
apply, as well as oral argument by the parties as to
interest rates that the court could choose. . . .
‘‘The legal basis for the court’s order was . . .
DiLieto v. County Obstetrics & Gynecology Group,
P.C., [supra, 310 Conn. 59–60], which concluded as fol-
lows: Of course, the trial court’s discretion under § 37-
3b includes the discretion to choose a fair rate of inter-
est not to exceed 10 percent per annum. . . .
‘‘This court exercised its discretion in choosing a fair
rate of interest in the amount of 8 percent.’’ (Citations
omitted; internal quotation marks omitted.)
On appeal to this court, the defendants renew the
claims that they raised in the trial court. Specifically,
they contend, first, that any award of interest under
§ 37-3b must be based solely on the rate of return on
risk-free investments such as United States Treasury
securities and may not take into account rates of return
on other, more speculative investments, and, second,
that the trial court improperly awarded interest on the
postjudgment interest award from October 28, 2010,
rather than from November 5, 2013, the date that post-
judgment interest was awarded. We address each claim
in turn.
We do not write on a clean slate with respect to the
issue of whether the trial court properly considered
rates of return on investments in awarding the plaintiff
postjudgment interest under § 37-3b. As we explained
in DiLieto III, ‘‘by its plain terms, § 37-3b authorizes
an award of postjudgment interest in any negligence
action, to be computed from the date of judgment’’;
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 310 Conn. 47; ‘‘at the rate of ten per cent
a year, and no more . . . .’’ (Emphasis added.) General
Statutes (Rev. to 1995) § 37-3b; see also DiLieto v.
County Obstetrics & Gynecology Group, P.C., supra,
310 Conn. 60 (‘‘the trial court’s discretion under § 37-
3b includes the discretion to choose a fair rate of inter-
est not to exceed 10 percent per annum’’); cf. Sears,
Roebuck & Co. v. Board of Tax Review, 241 Conn. 749,
765–66, 699 A.2d 81 (1997) (construing similar language
in § 37-3a as establishing maximum interest rate and
as not precluding award of interest below stated rate).
As we also observed in DiLieto III, because § 37-3b
does not identify the factors that a trial court should
consider in exercising its discretion under that provi-
sion, the trial court is free to consider whatever factors
may be relevant to such a determination. DiLieto v.
County Obstetrics & Gynecology Group, P.C., supra,
310 Conn. 54. Specifically, we stated that ‘‘a paramount
factor for the trial court to consider in deciding whether
to award postjudgment interest is the purpose of such
interest, namely, to compensate the prevailing party for
the loss of the use of the money owed from the date
of the judgment until the date that the judgment is paid.
In exercising its discretion under § 37-3b, the trial court
should identify any other factors or considerations that
may militate for or against an award of postjudgment
interest. In sum, the trial court should consider any and
all factors that are relevant to its determination. Of
course, the trial court’s discretion under § 37-3b
includes the discretion to choose a fair rate of interest
not to exceed 10 percent per annum.’’ (Footnote omit-
ted.) Id., 59–60.
The defendants contend, however, contrary to our
explication of § 37-3b in DiLieto III, that the trial court’s
broad discretion to choose a fair rate of interest not to
exceed 10 percent per annum does not include the
discretion to choose an interest rate based on the rates
of return on investments generally but, rather, must
be based exclusively on risk-free investments such as
United States Treasury securities, which, they argue,
are the ‘‘appropriate benchmark to measure the value
of [the] plaintiff’s lost use of money while also fulfilling
[the] compensatory purpose [of § 37-3b].’’ The defen-
dants contend that the trial court, in considering the
rates of return on other investments, in particular, the
mutual funds identified in the parties’ stipulation,
‘‘transformed postjudgment interest from a vehicle of
compensation into an opportunity for [the] plaintiff to
reap a guaranteed return from what otherwise would
have been a risky investment.’’8
The defendants’ construction of § 37-3b is unpersua-
sive for several reasons, not the least of which is that
it is predicated on a reading of the statute that attributes
to the legislature an intent to impliedly limit a court’s
discretion to consideration of specific factors not enu-
merated in the statute. This interpretation, however, is
inconsistent with the tenet of statutory construction
that, ‘‘[when] statutory language is clearly expressed
. . . courts must apply the legislative enactment
according to the plain terms and cannot read into the
terms of a statute something which manifestly is not
there in order to reach what the court thinks would be
a just result. . . . [In other words] the court itself can-
not rewrite a statute to accomplish a particular result.
That is the function of the legislature.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Hanson,
210 Conn. 519, 529, 556 A.2d 1007 (1989). Section 37-
3b authorizes an award of postjudgment interest at an
annual rate of up to 10 percent and does not purport
to restrict the discretion of the trial court to choose
any rate within that range. We must presume that, if
the legislature had intended to allow postjudgment
interest at a rate not to exceed the interest rates applica-
ble to United States Treasury securities, or had intended
to link interest under the statute to any other economic
indicator, it would have expressed that intent explicitly.
See, e.g., Fedus v. Planning & Zoning Commission,
278 Conn. 751, 771 n.17, 900 A.2d 1 (2006) (legislature
knows how to enact legislation consistent with its
intent). It is not the province of this court, under the
guise of statutory interpretation, to legislate such a pol-
icy, even if we were to agree with the defendants that
it is a better policy than the one endorsed by the legisla-
ture as reflected in its statutory language.9 Cf. Emberton
v. GMRI, Inc., 299 S.W.3d 565, 585 (Ky. 2009) (‘‘the fact
that a [12] percent interest rate in today’s economic
climate may be well above the marketplace norm is a
matter properly to be considered by the [legislature]
because that body has the power and discretion to
lower the de facto legal interest rate contained in [the
postjudgment interest statute]’’ [internal quotation
marks omitted]). ‘‘Accordingly . . . [such issues] are
better addressed to [the] legislature and the political
process rather than [the courts].’’ Id.; see also Eskay
Plastics, Ltd. v. Chappell, 34 Wn. App. 210, 213, 660
P.2d 764 (1983) (‘‘[I]t is for the [l]egislature, not the
courts, to determine whether the public is better served
by higher [or lower postjudgment] interest rates. The
role of the court does not include a duty to review the
wisdom of otherwise lawful legislative acts.’’).
The fact that the legislature has linked interest rates
to United States Treasury securities in other statutes
is strong evidence that it did not intend to do so for
purposes of § 37-3b. See, e.g., Saunders v. Firtel, 293
Conn. 515, 527, 978 A.2d 487 (2009) (‘‘when a statute,
with reference to one subject contains a given provi-
sion, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed’’ [internal
quotation marks omitted]). General Statutes § 37-3c, the
provision governing the rate of interest recoverable in
condemnation cases, provides in relevant part that
‘‘interest shall be calculated from the date of taking at
an annual rate equal to the weekly average one-year
constant maturity yield of United States Treasury secu-
rities, as published by the Board of Governors of the
Federal Reserve System, for the calendar week preced-
ing the date of taking . . . .’’ Section 37-3c demon-
strates that the legislature will link interest rates to
specific economic indicators when it concludes that it
is appropriate to do so. In the absence of similar lan-
guage in § 37-3b, we will not impute to the legislature
an intent to limit the court’s discretion in the same
manner as it has under § 37-3c.
Finally, it is not unreasonable for the legislature to
permit courts to consider potential investment income
in choosing a fair rate of interest under § 37-3b. As
the New York Court of Appeals stated in addressing a
similar claim: ‘‘Interest is designed to compensate for
the loss that results when a claimant is deprived of the
use of money to which he or she was entitled from the
moment that liability was determined . . . . If a suc-
cessful claimant was able to access a monetary award
immediately, the claimant could invest those proceeds
in a wide range of prudent investment choices, includ-
ing money market funds, corporate bonds or reason-
ably-risked equity funds. Hence, it makes sense [for a
court] to consider a full spectrum of investments—both
public and private—in determining an appropriate rate
of interest.’’ (Citation omitted; internal quotation marks
omitted.) Denio v. New York, 7 N.Y.3d 159, 167, 851
N.E.2d 1153, 818 N.Y.S.2d 802 (2006). Indeed, the New
York Court of Appeals further observed ‘‘that it would
be illogical and unfair to focus exclusively on the low-
est-returning investments in deciding whether to assign
a lower interest rate.’’ Id. That, however, is precisely
what the defendants in the present case would have
the trial court do—focus exclusively on the lowest-
returning investments in the parties’ stipulation. We
do not believe that such a restriction on the court’s
discretion is supported by the statute’s language or
purpose.
We note, moreover, our agreement with the plaintiff
that it would be incongruous to conclude that the trial
court abused its discretion in awarding postjudgment
interest at an annual rate of 8 percent, because that is
the rate that the legislature has set as fair compensation
for loans and other agreements that contemplate inter-
est but fail to specify a rate. See General Statutes § 37-
1 (a) (‘‘[t]he compensation for forbearance of property
loaned at a fixed valuation, or for money, shall, in the
absence of any agreement to the contrary, be at the
rate of eight per cent a year’’). This court has long
recognized that interest at the legal rate is presump-
tively fair and equitable compensation for the detention
of money after it is due and payable. See, e.g., Winsted
Savings Bank v. New Hartford, 78 Conn. 319, 324, 62
A. 81 (1905) (‘‘The aim of the law is to award as damages
what will be fair compensation. The legal rate of interest
is . . . chosen as the measure of this compensation
for the wrongful detention of money, as furnishing a
convenient and presumably fair and equitable rule.’’).
We disagree with the defendants’ contention that the
legal rate is ‘‘irrelevant’’ to § 37-3b because postjudg-
ment interest under § 37-3b serves a materially different
purpose than interest awarded pursuant to § 37-1 (a).
As we explained in DiLieto III, until 1983, and for well
over one century before that, postjudgment interest at
the legal rate was actually mandatory in every civil
action. See DiLieto v. County Obstetrics & Gynecology
Group, P.C., supra, 310 Conn. 50 n.12; see also Little
v. United National Investors Corp., 160 Conn. 534, 537,
280 A.2d 890 (1971) (‘‘Connecticut has by statute long
provided for interest on judgments. The first enactment
appears to be chapter 34 of the Public Acts of 1860.
. . . [General Statutes §] 52-349 expressly provides for
legal interest on judgments and [General Statutes
(Supp. 1971)] § 37-1 expressly provides that the legal
rate of interest shall be 6 percent . . . .’’ [Citation
omitted.]).
For all of the foregoing reasons, we reaffirm our prior
interpretation of § 37-3b as affording the court broad
authority to award postjudgment interest at a rate not to
exceed 10 percent per annum. As we also have observed
previously, the authority vested in the court under § 37-
3b includes the discretion to consider any factors bear-
ing on its decision with respect to an award under that
provision. Because the trial court in the present case
reasonably concluded that evidence proffered by the
plaintiff regarding the investment income that she
would have realized if the defendants had satisfied the
judgment in a timely manner was relevant to its determi-
nation concerning the appropriate rate of postjudgment
interest, we agree with the plaintiff that the court’s
award of 8 percent interest was within its discretion.
We next address the defendants’ claim that the trial
court abused its discretion in awarding interest on the
postjudgment interest award from October 28, 2010.
The defendants contend that, because they were not
ordered to pay postjudgment interest until November
5, 2013, such interest could be awarded only from that
date forward. We agree.
As we previously have explained, interest on a judg-
ment is awarded ‘‘from and after the date on which the
court, in its discretion, determines that . . . money
was due and payable.’’ Northrop v. Allstate Ins. Co.,
247 Conn. 242, 255, 720 A.2d 879 (1998); accord DiLieto
v. County Obstetrics & Gynecology Group, P.C., supra,
310 Conn. 51. We also have explained that ‘‘[i]nterest
is [permitted] . . . as damages for not discharging a
debt when it ought to be paid. . . . The important prac-
tical inquiry, therefore, in each case in which interest
is in question is, what is the date [on] which this legal
duty to pay, as an absolute present duty, arose.’’ (Inter-
nal quotation marks omitted.) DiLieto v. County Obstet-
rics & Gynecology Group, P.C., supra, 310 Conn. 54,
quoting 1 J. Berryman, Sutherland on the Law of Dam-
ages (4th Ed. 1916) § 329, pp. 1030–31. In the present
case, the trial court rendered judgment in the underlying
medical malpractice action on July 14, 2006. That judg-
ment, therefore, was due and payable on that date,
with interest accruing from that date and continuing to
accrue until the judgment was satisfied on October
28, 2010. The trial court, however, did not decide the
plaintiff’s amended motion for postjudgment interest
until November 5, 2013. Accordingly, the defendants
were under no legal duty to pay any postjudgment inter-
est until that time. Indeed, as the defendants maintain,
because interest under the version of § 37-3b applicable
to the present case is discretionary rather than manda-
tory, the trial court could have denied the plaintiff’s
request for postjudgment interest altogether, or have
awarded a lesser amount than the plaintiff requested,
which is what the trial court ultimately did. Thus,
because the defendants’ legal duty to pay postjudgment
interest arose when the trial court, in the exercise of
its discretion, awarded it, and not beforehand, interest
on the award of postjudgment interest did not lawfully
begin to accrue until that date.
The order of the trial court is reversed with respect
to that court’s award of interest on the award of post-
judgment interest, and the case is remanded to that
court with direction to award interest on the award of
postjudgment interest at the predetermined annual rate
of 3 percent from November 5, 2013, until the award
of postjudgment interest is paid in full; that portion
of the order of the trial court awarding postjudgment
interest at an annual rate of 8 percent from January 14,
2006, until October 28, 2010, is affirmed.
In this opinion the other justices concurred.
1
General Statutes (Rev. to 1995) § 37-3b provides: ‘‘For a cause of action
arising on or after October 1, 1981, interest at the rate of ten per cent a
year, and no more, may be recovered and allowed in any action to recover
damages for injury to the person, or to real or personal property, caused
by negligence, computed from the date of judgment.’’
Section 37-3b was amended by Public Acts 1997, No. 97-58, § 2. That
amendment, which makes awards of interest under § 37-3b mandatory,
applies to causes of action arising on or after May 27, 1997. Because the
cause of action in this case arose in 1995, the 1995 revision of § 37-3b, which
applies to causes of action arising on or after October 1, 1981, but before
May 27, 1997, is the provision applicable in the present case.
All references to § 37-3b in this opinion are to the 1995 revision.
2
We hereinafter refer to County Obstetrics and Gynecology Group, P.C.,
Casper and Yale University School of Medicine collectively as the defendants.
3
The defendants appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
4
The trial that resulted in this award followed an earlier trial in which
the jury had returned a verdict in favor of Yale University School of Medicine
and had been unable to reach a verdict with respect to Casper or County
Obstetrics and Gynecology, P.C. See DiLieto v. County Obstetrics & Gyne-
cology Group, P.C., 265 Conn. 79, 82 n.2, 828 A.2d 31 (2003) (DiLieto I).
On appeal, we agreed with the plaintiff that the trial court, Sheldon, J.,
improperly had precluded the plaintiff from adducing certain expert testi-
mony and, therefore, that the plaintiff was entitled to a new trial. See id.,
82, 87–88, 109.
5
General Statutes § 37-3a provides in relevant part: ‘‘(a) Except as pro-
vided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per
cent a year, and no more, may be recovered and allowed in civil actions or
arbitration proceedings under chapter 909, including actions to recover
money loaned at a greater rate, as damages for the detention of money after
it becomes payable. . . .’’
6
Specifically, the parties stipulated to the following ranges of interest
rates on the following United States Treasury securities from 2006 to 2009:
(1) one year United States Treasury bills ranged from 4.94 percent to 0.47
percent; (2) three year United States Treasury notes ranged from 4.77 percent
to 1.43 percent; (3) ten year United States Treasury notes ranged from 4.80
percent to 3.26 percent; (4) twenty year United States Treasury bonds ranged
from 5 percent to 4.11 percent; and (5) thirty year United States Treasury
bonds ranged from 4.91 percent to 4.08 percent.
7
References hereinafter to the trial court are to Agati, J.
8
We note that, ordinarily, postjudgment interest will be awarded soon
after the court has rendered judgment following the trial of the case, and,
consequently, any claim that the court, in awarding interest under § 37-3b,
should consider a particular investment necessarily would require proof
both that the investment would have been made and that the investment
would yield a particular rate of return in the future. Because the award of
postjudgment interest at issue in the present case did not occur until many
years after the conclusion of the trial, the investment that the plaintiff claims
she would have made with the money that she was awarded under the
judgment, if the defendants had paid that judgment immediately, already
had produced a rate of return over the relevant time frame. In the present
case, therefore, to satisfy the court that she would have received a particular
rate of return on her investment, the plaintiff was required to demonstrate
only that she would have made that particular investment.
9
We note that Connecticut is certainly not the only state that authorizes
postjudgment interest at rates significantly higher than the present market
rates. Indeed, at least twenty states authorize postjudgment interest at a
rate of 7.5 percent or higher, and, in many of those states, the interest is
mandatory. See, e.g., Ala. Code § 8-8-10 (Supp. 2014) (7.5 percent); Cal. Civ.
Proc. Code § 685.010 (a) (Deering 1998) (10 percent); Mass. Ann. Laws c.
231, § 6B (LexisNexis 2009) (12 percent); N.Y. C.P.L.R. § 5004 (McKinney
2007) (9 percent); Vt. Stat. Ann. tit. 12, § 2903 (c) (Supp. 2013) (12 percent).