DiTullio v. LM General Ins. Co. ( 2022 )

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GABRIELLE DITULLIO v. LM GENERAL
INSURANCE COMPANY
(AC 44114)
Alvord, Suarez and Clark, Js.
Syllabus
The plaintiff sought to confirm an arbitration award against the defendant
arising out of a separate action in which she sought to recover damages
from the insurer L for underinsured motorist benefits. The plaintiff
previously had received a $20,000 settlement from a tortfeasor in connec-
tion with injuries she sustained in a motor vehicle collision. In bringing
the underinsured motorist action against L, the plaintiff alleged that the
$20,000 settlement was insufficient to fully compensate her and that
L was legally responsible for damages in excess of the underinsured
motorist’s coverage. The plaintiff, the defendant and L ultimately agreed
to settle the case by means of binding arbitration and entered into a
written arbitration agreement. Thereafter, an arbitrator issued an award
in the amount of $33,807.50. The arbitrator made no findings regarding
collateral sources, which were to be deducted from the total damages
pursuant to the parties’ arbitration agreement. The parties subsequently
agreed with each other as to the amounts of collateral sources, but
disagreed as to whether the $20,000 settlement should be deducted from
the award. The defendant filed an objection to the plaintiff’s application
to confirm the award, in which it argued, inter alia, that it was legally
responsible only for damages exceeding the $20,000 settlement that the
plaintiff already had received from the tortfeasor. The defendant did
not otherwise file a motion to modify or to correct the award. Thereafter,
upon the parties’ request, the arbitrator issued an articulation stating
that the award of $33,807.50 was a full value award, which did not take
into account any collateral sources or offsets, or the $20,000 settlement.
Subsequently, the trial court rendered judgment confirming the award
with deductions of $1020.02 in collateral sources and $20,000 to offset
the prior settlement, from which the plaintiff appealed to this court. Held:
1. The trial court properly deducted $20,000 from the arbitration award to
offset the settlement that the plaintiff had received from the tortfeasor:
although the plaintiff claimed that the court lacked statutory and com-
mon-law authority to modify the award, this court concluded that the
trial court did not modify the award but, instead, merely conformed the
award to the parties’ arbitration agreement; moreover, in light of the
agreement’s reference to the plaintiff’s underinsured motorist lawsuit
and the nature of her underlying claim, the only reasonable interpretation
of the agreement was that the parties initially contemplated and agreed
that the arbitrator’s gross award would be the sum of the plaintiff’s total
economic and noneconomic damages, less the $20,000 she had received
from the tortfeasor; furthermore, although the arbitration agreement
provided that the arbitrator would calculate the gross award and then
deduct damages determined to be collateral sources, the arbitrator made
clear in his decision and in his articulation that his award was for the
full value of the plaintiff’s damages, without considering the issues of
collateral sources or offsets, demonstrating that the parties subsequently
modified their written agreement and submitted to the arbitrator only
the question of the plaintiff’s total economic and noneconomic damages
and preserving the written agreement’s provisions limiting the defen-
dant’s liability only to those damages in excess of the $20,000 settlement
and any collateral sources.
2. This court concluded that, although the trial court properly deducted
the $20,000 settlement from the arbitration award, it miscalculated the
amount of the judgment: subtracting the collateral sources and the
settlement from the arbitrator’s full value award yielded the sum of
$12,787.48, not the amount of $12,500 that the trial court had calculated.
Argued May 11, 2021—officially released February 1, 2022
Procedural History
Application to confirm an arbitration award, brought
to the Superior Court in the judicial district of Danbury,
and tried to the court, Brazzel-Massaro, J.; judgment
confirming and clarifying the award, from which the
plaintiff appealed to this court. Affirmed in part;
reversed in part; judgment directed.
James M. Harrington, with whom, on the brief, was
Joseph T. Coppola II, for the appellant (plaintiff).
Matthias J. DeAngelo, with whom, on the brief, was
Evan Tegtmeier, for the appellee (defendant).
Opinion
CLARK, J. This appeal concerns an arbitration award
(award) that arose out of an underinsured motorist
cause of action. The plaintiff, Gabrielle DiTullio,
appeals from the judgment of the trial court ‘‘confirming
the arbitration award with a deduction for the $20,000
offset to clarify the amount to be awarded is $12,500
in accordance with the law.’’ (Emphasis added.) On
appeal, the plaintiff claims that the court improperly
deducted $20,000 from the award because the court (1)
lacked statutory authority to do so, as the defendant,
LM General Insurance Company, failed to file a motion
to modify, correct, or vacate the award pursuant to
General Statutes § 52-407tt, § 52-407xx, or § 52-407ww,
and also (2) lacked common-law authority to do so.1
We conclude that the deduction was proper, but on
different grounds than those relied upon by the court.2
The court had authority to deduct the $20,000 settle-
ment from the tortfeasor from the full value arbitration
award to conform the award to the parties’ written
agreement. The court, however, miscalculated the
amount of the judgment, and thus, we affirm in part
and reverse in part the judgment of the trial court.
The record reveals the following undisputed facts.
The plaintiff was injured on March 30, 2015, when her
motor vehicle was struck in Bethel by a vehicle operated
by Tracie Fabri-Lino (tortfeasor). At the time of the
collision, the plaintiff’s vehicle was insured by Liberty
Mutual Insurance Company (Liberty Mutual).3 The
plaintiff settled her claims against the tortfeasor for
$20,000. Thereafter, in January, 2018, the plaintiff com-
menced an underinsured motorist action (UIM case)
against Liberty Mutual,4 alleging that she had sustained
injuries, damages, and other losses as a direct result of
the tortfeasor’s negligence. She also alleged that she
had settled her claim against the tortfeasor for $20,000,
the limit of the tortfeasor’s liability policy. Significantly
with respect to the present appeal, the plaintiff alleged
that the settlement was ‘‘insufficient to fully compen-
sate [her] for her damages and losses. . . . Wherefore
[Liberty Mutual] . . . is legally responsible for all dam-
ages in excess of the underinsured driver’s coverage.’’
(Emphasis added.)
A pretrial settlement conference in the UIM case was
held in May, 2019, at which time the parties were unable
to agree on a sum to resolve the litigation. They agreed,
however, to settle the UIM case by means of binding
arbitration and that the UIM case would be withdrawn.
On May 31, 2019, the plaintiff, Liberty Mutual, and the
defendant signed an arbitration agreement (written
agreement) that provides in relevant part: ‘‘[The parties]
have agreed to arbitrate the UM/UIM Plaintiff’s claim
against the [defendant and Liberty Mutual] regarding a
motor vehicle accident which occurred on March 30,
2015 . . . . [T]he [p]arties hereby agree to the follow-
ing:
‘‘1. The issues in the Lawsuit shall be resolved by
means of binding arbitration, and the Lawsuit shall
be resolved by way of release and withdrawal of
action. . . .
‘‘2. The Arbitrator shall be mutually agreed upon
. . . . All issues of liability, causation, and damages
shall be decided by the Arbitrator.
***
‘‘6. Following the arbitration hearing in connection
with this matter, the Arbitrator will render a decision
containing a ‘Gross Award.’
‘‘7. After determining the Gross Award, the Arbitrator
is to deduct from total damages, all economic damages
determined to be collateral sources.
‘‘8. After the agreed deductions from the Gross Award
per Paragraph 7, the resulting sum shall be the ‘Net
Award.’
‘‘9. The parameters of the arbitration shall be subject
to a confidential high/low agreement wherein the Net
Award to the Plaintiff, per Paragraph 8, will be no higher
than thirty-two thousand five hundred dollars ($32,500)
and no lower than two thousand five hundred dollars
($2,500).
‘‘10. In the event that the Net Award is $32,500 or
greater, then the sum due . . . shall be $32,500. In the
event the Net Award is $2,500 or less, then the Sum
Due shall be $2,500.
‘‘11. None of the parties will disclose the high and
low figures of this Agreement to the Arbitrator. . . .’’5
(Emphasis added.)
On July 9, 2019, Attorney Christopher P. Kriesen
(arbitrator) held an arbitration hearing, and on July 12,
2019, he issued a written decision. In his decision, the
arbitrator found that the tortfeasor’s negligence proxi-
mately caused the plaintiff’s injuries. He also found
that the plaintiff had received treatment from several
medical providers, but was able to complete training
at the police academy and become a patrol officer. The
arbitrator found that the plaintiff’s economic damages
were $13,807.50, her noneconomic damages were
$20,000, and the award was $33,807.50. The arbitrator
further stated that he made ‘‘no finding on collateral
sources. If the parties are unable to agree on the issue,
they may submit the issue to me.’’6 Neither the plaintiff
nor the defendant and Liberty Mutual filed with the
arbitrator a motion to modify or correct the award
pursuant to § 52-407tt.7
Thereafter, counsel for the plaintiff informed counsel
for the defendant and Liberty Mutual that the collateral
source payments totaled $1020.02. Counsel subtracted
the collateral source amount from the arbitrator’s eco-
nomic award, added the remainder to the arbitrator’s
$20,000 noneconomic award, and stated that the net
award was $32,787.48, which should be reduced to
$32,500 in accordance with the ‘‘high/low’’ provision set
forth in paragraphs 9 and 10 of the written agreement.
Counsel for the defendant and Liberty Mutual agreed
with respect to the amount of collateral source pay-
ments, but countered that the $20,000 settlement that
the plaintiff had received from the tortfeasor also had
to be subtracted from the award, resulting in a net
award of $12,787.48. Counsel for the plaintiff disagreed,
contending that the agreement was for ‘‘new money’’
and that the written agreement did not include a provi-
sion regarding the $20,000 tortfeasor settlement. Coun-
sel were unable to resolve their disagreement, and on
July 19, 2019, the plaintiff moved to restore the UIM
case. See footnote 4 of this opinion.
On September 27, 2019, the plaintiff commenced the
present proceeding to confirm the award; she also filed
a motion to stay the UIM case. In her application to
confirm the award, the plaintiff asked the court to
‘‘order that the defendant comply with the terms of
the arbitration agreement and that the plaintiff be paid
$32,500 pursuant to that agreement and the arbitrator’s
award.’’ In her application, the plaintiff argued that the
court must confirm the award unless it finds grounds
to vacate, modify, or correct the award as permitted
by statute. She also argued that the agreement was
clear and unambiguous, made no mention of the $20,000
settlement and provided that only collateral sources,
which pursuant to General Statutes § 52-225b8 do not
include amounts received as a settlement, were to be
deducted from the gross award.
On October 11, 2019, the defendant filed an objection
to the plaintiff’s application to confirm the award on
the ground that it was frivolous given that there was a
prior lawsuit pending before the court. It also argued
that the plaintiff was asking the court to confirm ‘‘an
arbitration award without taking into account the
nature of the claim. This claim is, and always was, a
contractual claim for underinsured motorist benefits.’’
The defendant argued, as well, that the complaint in
the plaintiff’s underlying UIM case alleged that the
defendant and Liberty Mutual are ‘‘legally responsible
for all damages in excess of the [underinsured] driver’s
coverage.’’ (Emphasis altered.) The defendant also
argued that ‘‘it is well established that a plaintiff is not
[to] be compensated twice for the same damages.’’ The
defendant suggested that the parties return to the arbi-
trator for clarification of the award, noting that the
arbitrator had not made a finding with regard to collat-
eral sources and that the arbitrator had invited the
parties to return if they were unable to agree with
respect to collateral sources.
The parties returned to the arbitrator on October 30,
2019, and requested that he articulate his July 12, 2019
award. On the same date, the arbitrator issued an articu-
lation, stating that ‘‘the award of $33,807.50 is a ‘full
value’ award, taking into account only the facts and
basis set forth in the decision. . . . The award does
not take into account any collateral sources or offsets.
. . . The award does not take into account in any way
the $20,000 payment apparently made by the alleged
tortfeasor. This amount was disclosed to the arbitrator
in a position statement (which was not evidence) by
the plaintiff and in a deposition transcript submitted
by the defendant (but which was not considered since
it was irrelevant to the arbitrator’s determination of
the award and was therefore not deemed a fact by the
arbitrator). . . . The arbitrator will consider any
issues of collateral sources and/or offsets if the parties
have agreed, or do agree, to have these issues consid-
ered by the arbitrator.’’ (Emphasis added.)
On March 9, 2020, the parties appeared before the
court for a hearing on the plaintiff’s application to con-
firm the award. The court issued a memorandum of
decision on May 19, 2020, in which it noted that the
plaintiff had moved to confirm the award, and that,
under Connecticut law, a court must confirm an award
unless a motion to vacate, modify or correct the award
is filed and granted in accordance with the statutes
governing such motions.9 The plaintiff argued that
because no motion to vacate, modify or correct had
been filed, the court’s review was limited to determining
whether the arbitrator decided only matters the parties
submitted to arbitration, as defined by the written
agreement. She also argued that the written agreement
is clear and unambiguous and only permits deductions
for collateral sources, which, according to her, do not
include prior settlements.
The court also noted the defendant’s objection, in
which the defendant argued that the application to con-
firm was frivolous when filed because the UIM case
had been restored to the docket and remained pending
at that time. The defendant noted that the plaintiff was
asking the court to confirm the award without taking
into account the nature of the underlying contractual
claim for underinsured motorist benefits or the plain-
tiff’s UIM lawsuit, which were incorporated into the
written agreement by reference, and the defendant
alleged that it was legally responsible only for damages
exceeding the $20,000 settlement that the plaintiff
already had received from the tortfeasor.
In addition, during the March 9, 2020 hearing on the
plaintiff’s application to confirm, ‘‘the defendant also
alleged that the parties agreed to an offset and stated
in front of the arbitrator that he did not need to take
that into consideration because the parties had agreed
to the offset.’’ The plaintiff denied that there had been
any conversation with the arbitrator about an offset
and the court ultimately concluded that it was ‘‘not
necessary . . . to address any disagreement between
the parties about the subject of discussing the offset
with the arbitrator, as the arbitrator explained that the
award was a full value award, and though he was aware
of the offset, he did not consider it because it was
irrelevant in determining the award.’’
Turning to the merits of the plaintiff’s application to
confirm, the court found that the plaintiff’s underlying
claim was a contractual one for underinsured motorist
benefits. It also found that the written agreement was
clear and unambiguous, but that it did not mention
offsets for prior settlements. In addition, neither party
took issue with the decision rendered by the arbitrator.
Instead, they disagreed about whether an offset should
be subtracted from the arbitrator’s full value award.
Even though the defendant had not filed with the
court a motion to vacate, modify, or correct the award
pursuant to the statutory provisions authorizing such
filings, the court nevertheless considered the defen-
dant’s objection and reviewed the law governing under-
insured motorist coverage. In considering the plaintiff’s
application to confirm, the court stated that it was ‘‘nec-
essary to also apply to the present case the fundamental
principle of the purpose of underinsured motorist insur-
ance recognized by [Connecticut courts], which is to
place the insured in the same, but not better, position
as the insured would have been if the underinsured
tortfeasor had been fully insured, and the requirement
regarding automobile liability policies in [General Stat-
utes] § 38a-335 (c) that no one is entitled to receive
duplicate payments for the same element of loss,’’ citing
Haynes v. Yale-New Haven Hospital, 243 Conn. 17,
27, 699 A.2d 964 (1997) (public policy established by
underinsured motorist statute is that every insured enti-
tled to recover for damages he or she would have been
able to recover if underinsured motorist had maintained
adequate policy of liability insurance), and Fahey v.
Safeco Ins. Co. of America, 49 Conn. App. 306, 309–10,
714 A.2d 686 (1998) (purpose of underinsured motorist
coverage is to protect named insured and additional
insured from suffering inadequately compensated
injury caused by accident with inadequately insured
automobile; in no event shall any person be entitled to
duplicate payments for same element of loss).
In ruling on the plaintiff’s motion to confirm, the
court noted the articulation that the award is a ‘‘full
value award has significance in deciphering the award
as no more than $32,500, which would not [have been]
so if the court awarded the entire sum in addition to the
settlement amount of $20,000.’’ (Emphasis in original.)
Therefore, pursuant to General Statutes § 52-407vv, the
court confirmed the award, but also ordered that ‘‘in
confirming the award, the $20,000 offset must be
deducted to clarify the amount to be awarded’’ to the
plaintiff is ‘‘$12,500 in accordance with the law.’’
(Emphasis added.) The plaintiff appealed.
On appeal, the plaintiff’s principal claim is that the
court lacked statutory and common-law authority to
modify the award. We agree that it would have been
improper for the court to modify the arbitrator’s award.
It is well settled that courts generally lack the author-
ity to review unrestricted arbitration awards for errors
of law, particularly in the absence of a motion to vacate.
Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80,
881 A.2d 139 (2005); id., 81 (motion to vacate should
be granted when arbitrator exceeded powers or so
imperfectly executed them that mutual, final, definite
award not made). ‘‘Judicial review of arbitral decisions
is narrowly confined.’’ (Internal quotation marks omit-
ted.) State v. New England Health Care Employees
Union, District 1199, AFL-CIO, 265 Conn. 771, 777,
830 A.2d 729 (2003). ‘‘[T]he law in this state takes a
strongly affirmative view of consensual arbitration.
. . . Arbitration is a favored method to prevent litiga-
tion, promote tranquility and expedite the equitable set-
tlement of disputes.’’ (Citation omitted; internal quota-
tion marks omitted.) Rocky Hill Teachers’ Assn. v.
Board of Education, 72 Conn. App. 274, 278, 804 A.2d
999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).
‘‘Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that . . . the interpretation of the agreement
by the arbitrators was erroneous. Courts will not review
the evidence nor, where the submission is unrestricted,
will they review the arbitrators’ decision of the legal
questions involved. . . . In other words, [u]nder an
unrestricted submission, the arbitrators’ decision is
considered final and binding; thus courts will not review
the evidence considered by the arbitrators nor will they
review the award for errors of law or fact. . . .’’
(Emphasis added; internal quotation marks omitted.)
Harty v. Cantor Fitzgerald & Co., supra, 80.10
We, however, conclude that the court did not modify
the arbitrator’s award, but, in confirming the award as
it did, merely effectuated the parties’ written agreement.
As it did at trial, the defendant claims that the trial
court’s decision to deduct $20,000 from the award was
proper because making that deduction conformed the
arbitrator’s award to the parties’ agreement. For the
reasons that follow, we agree.
‘‘Arbitration agreements are contracts and their
meaning is to be determined . . . under accepted rules
of [state] contract law . . . .’’ (Internal quotation
marks omitted.) Levine v. Advest, Inc., 244 Conn. 732,
745, 714 A.2d 649 (1998). ‘‘When a party asserts a claim
that challenges the . . . construction of a contract, we
must first ascertain whether the relevant language in
the agreement is ambiguous. . . . A contract is ambig-
uous if the intent of the parties is not clear and certain
from the language of the contract itself. . . . When the
language of a contract is ambiguous, the determination
of the parties’ intent is a question of fact . . . . If a
contract is unambiguous within its four corners, intent
of the parties is a question of law requiring plenary
review. . . . Where the language of a contract is clear
and unambiguous, the contract is to be given effect
according to its terms.’’ (Citation omitted; internal quo-
tation marks omitted.) O’Connor v. Waterbury, 286
Conn. 732, 743–44, 945 A.2d 936 (2008).
The parties’ written agreement in this case provides,
in relevant part, that ‘‘[the plaintiff] and [the defendant
and Liberty Mutual] . . . have agreed to arbitrate the
UM/UIM Plaintiff’s claim against the [defendant and
Liberty Mutual] regarding a motor vehicle accident
. . . . The issues in the [l]awsuit shall be resolved by
means of binding arbitration . . . .’’ (Emphasis added.)
The circumstances surrounding the making of the writ-
ten agreement were the parties’ inability to settle the
UIM case. The parties, therefore, entered into the agree-
ment to resolve the plaintiff’s UIM lawsuit. The plain-
tiff’s complaint in that lawsuit specifically alleged that
the tortfeasor’s $20,000 settlement with the plaintiff was
insufficient to fully compensate her for her damages
and losses and that Liberty Mutual was legally responsi-
ble for all damages in excess of the tortfeasor’s coverage.
The written agreement further provides that the arbi-
trator would render a ‘‘Gross Award.’’ After determining
the ‘‘Gross Award,’’ the written agreement stated that
the arbitrator would ‘‘deduct from total damages, all
economic damages determined to be collateral
sources.’’ The resulting sum would constitute the ‘‘Net
Award.’’ The ‘‘Sum Due’’ would be the ‘‘Net Award,’’
subject to the agreement’s ‘‘high/low’’ provision.11 In
light of the written agreement’s reference to the plain-
tiff’s lawsuit and the nature of her underlying claim,
the only reasonable interpretation of the agreement is
that the parties initially contemplated and agreed that
the arbitrator’s ‘‘Gross Award’’ would be the sum of the
plaintiff’s total economic and noneconomic damages,
less the $20,000 she had received from the tortfeasor.
The ‘‘Net Award,’’ in turn, would be that sum less ‘‘all
economic damages determined to be collateral
sources.’’ The arbitrator’s decision and articulation
make clear, however, that the parties ultimately submit-
ted a different question to him.
In his decision, the arbitrator found that the tortfea-
sor caused the plaintiff’s injuries and that the plaintiff
sustained $20,000 in noneconomic damages and
$13,807.50 in economic damages. He issued an ‘‘Award’’
in the amount of $33,807.50. He made no mention of a
‘‘Gross Award’’ or ‘‘Net Award’’ and made no findings
regarding ‘‘collateral sources.’’ Instead, he informed the
parties that if they were ‘‘unable to agree on the issue,
they may submit the issue to me.’’ (Emphasis added.)
The parties subsequently agreed to return to the arbi-
trator for a clarification of his award. The arbitrator
articulated that the award was a ‘‘ ‘full value’ award,
taking into account only the facts and basis set forth
in the decision.’’ The arbitrator also stated in his articu-
lation that ‘‘[t]he award does not take into account any
collateral sources or offsets. . . . The award does not
take into account in any way the $20,000 payment
apparently made by the alleged tortfeasor. This
amount was disclosed to the arbitrator in a position
statement (which was not evidence) by the plaintiff
and in a deposition transcript submitted by the defen-
dant (but which was not considered since it was irrele-
vant to the arbitrator’s determination of the award
and was therefore not deemed a fact by the arbitrator).’’
(Emphasis added.) Last, the arbitrator stated that he
would ‘‘consider any issues of collateral sources and/
or offsets if the parties have agreed, or do agree, to have
these issues considered by the arbitrator.’’ (Emphasis
added.)
The arbitrator’s decision and articulation, therefore,
make clear that, although the written agreement
between the parties was to have the arbitrator decide
‘‘[a]ll issues of liability, causation, and damages’’ and
issue a ‘‘Gross Award’’ that accounted for the plaintiff’s
$20,000 settlement with the tortfeasor, the parties sub-
sequently agreed to submit to him only the question of
the plaintiff’s total economic and noneconomic dam-
ages as result of the motor vehicle accident. That is
precisely the question that the arbitrator answered in
his articulation, and, in doing so, he made clear that his
award was for the full value of the plaintiff’s damages.
There is nothing in the record to support a claim that,
when they modified their written agreement about what
to submit to the arbitrator, the parties also agreed to
alter that agreement to limit the extent of the defen-
dant’s liability to the amount it allegedly owed the plain-
tiff under the underinsured motorist policy. Concluding
otherwise would require us to infer that the defendant
agreed to change the written agreement in a way that
would make it liable to the plaintiff for amounts that
the plaintiff had never sought in the underlying lawsuit
and was not entitled to under the laws governing under-
insured motorist coverage in our state. See General
Statutes § 38a-335 (c); see also Haynes v. Yale-New
Haven Hospital, supra, 243 Conn. 27; Fahey v. Safeco
Ins. Co. of America, supra, 49 Conn. App. 309–10. Noth-
ing in the record supports such an inference.
On the basis of our review of the entire record, includ-
ing the written agreement, the plaintiff’s UIM complaint,
the arbitrator’s decision, the parties’ agreement to
return to the arbitrator, and the articulation, we con-
clude that the parties agreed to submit to the arbitrator
only the question of the plaintiff’s total economic and
noneconomic damages as a result of the underlying
automobile collision, but also preserved the written
agreement’s provisions limiting the defendant’s liability
to only those damages in excess of the $20,000 settle-
ment and any ‘‘collateral sources,’’ up to a maximum
of $32,500. For this reason, the court properly con-
firmed the award, and effectuated the parties’ written
agreement, by deducting from the arbitrator’s ‘‘full
value’’ award the plaintiff’s $20,000 settlement with the
tortfeasor, plus the amounts the parties agreed repre-
sent ‘‘collateral sources.’’
There is, however, another issue for us to consider.
In its brief, the defendant has identified an error in the
court’s calculation of the amount of the judgment, i.e.,
$12,500. We agree with the defendant. The amount due
to the plaintiff is the arbitrator’s full value award less
collateral sources and the $20,000 settlement with the
tortfeasor. Subtracting from the arbitrator’s gross
award of $33,807.50 the undisputed amount of $1020.02
in collateral sources and the $20,000 settlement amount
yields the sum of $12,787.48. Therefore, the net award
due to the plaintiff is $12,787.48.
The judgment is reversed only as to the amount of
the award, and the case is remanded with direction to
render judgment in accordance with this opinion; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff also claims that the court’s improper deduction of $20,000
from the award (1) violates the public policy favoring arbitration as an
alternative to litigation and (2) permits parties to arbitration agreements to
seek judicial intervention when they are dissatisfied with the arbitrator’s
award, which will have a chilling effect on arbitration. Because we conclude
that the court properly confirmed the arbitration award, we need not reach
these claims.
2
The parties entered into the arbitration agreement on May 31, 2019. In
the trial court, the parties litigated, and the trial court adjudicated, the issues
pursuant to General Statutes § 53-408 et seq. The parties also cited § 53-408
et seq. in their appellate briefs. Pursuant to No. 18-94 of the 2018 Public
Acts, the legislature adopted the Revised Uniform Arbitration Act (revised
act), General Statutes § 52-407aa et seq. General Statutes § 52-407cc provides
in relevant part that ‘‘[s]ections 52-407aa to 52-407eee, inclusive, govern an
agreement to arbitrate made on or after October 1, 2018 . . . .’’
Following oral argument before us, we ordered the parties to file simulta-
neous supplemental briefs ‘‘addressing whether the [revised act] governs
the arbitration at issue in this case, and if so, whether that has any effect
on the present appeal.’’ In their supplemental briefs, the parties agree that
the revised act applies to the present appeal, and they each assert that the
revised act does not alter their respective positions regarding the issues on
appeal. In this opinion, we refer to statutes in the revised act when relevant.
3
In the confirmation proceeding and on appeal, the defendant was identi-
fied as the insurer of the vehicle.
4
See DiTullio v. Liberty Mutual Ins. Co., Superior Court, judicial district
of Danbury, Docket No. CV-XX-XXXXXXX-S (withdrawn). The plaintiff with-
drew the UIM case on May 31, 2019, the date that the parties signed the
written agreement. She, however, moved to restore the UIM case on July
19, 2019, following receipt of the arbitrator’s decision. On September 26,
2019, the plaintiff filed a motion to stay the restored UIM case pending a
resolution of the arbitration. In response to the motion for stay, the trial
court issued an order stating in part: ‘‘Counsel appeared at short calendar
and addressed the issue of whether the arbitrator will rule on the impact
if any for the $20,000 payment to the plaintiff as damages for the accident
and whether such insurance proceeds were considered by the arbitrator in
entering an award for $32,500.’’ The plaintiff again withdrew the UIM case
on October 30, 2019, when the case was called for jury selection.
5
The agreement referred to the underlying UIM case, but did not otherwise
make any express reference to the $20,000 settlement that the plaintiff had
received from the tortfeasor.
6
See paragraphs 7 and 8 of the written agreement previously set forth in
this opinion.
7
General Statutes § 52-407tt provides in relevant part: ‘‘(a) On motion to
an arbitrator by a party to an arbitration proceeding, the arbitrator may
modify or correct an award:
‘‘(1) Upon a ground stated in subdivision (1) or (3) of subsection (a) of
section 52-407xx . . . .’’
General Statutes § 52-407xx (a) provides in relevant part: ‘‘(1) There was
an evident mathematical miscalculation or an evident mistake in the descrip-
tion of a person, thing or property referred to in the award . . . (3) The
award is imperfect in a matter of form not affecting the merits of the decision
on the claims submitted.’’
8
General Statutes § 52-225b defines collateral sources for purposes of
General Statutes §§ 52-225a through 52-225c, inclusive. It provides in relevant
part: ‘‘ ‘Collateral sources’ means any payments made to the claimant, or
on his behalf, by or pursuant to: (1) Any health or sickness insurance,
automobile accident insurance that provides health benefits, and any other
similar insurance benefits, except life insurance benefits available to the
claimant, whether purchased by him or provided by others; or (2) any
contract or agreement of any group, organization, partnership or corporation
to provide, pay for or reimburse the costs of hospital, medical, dental or other
health care services. ‘Collateral sources’ do not include amounts received
by a claimant as a settlement.’’ General Statutes § 52-225b. As the court
noted, however, the written agreement did not define ‘‘collateral sources’’
or make reference to § 52-225b.
9
General Statutes § 52-407vv provides: ‘‘After a party to an arbitration
proceeding receives notice of an award, the party may make a motion to
the court for an order confirming the award at which time the court shall
issue a confirming order unless the award is modified or corrected pursuant
to section 52-407tt or 52-407xx or is vacated pursuant to section 52-407ww.’’
10
We agree with the parties that the submission in the present case was
unrestricted.
11
The written agreement prohibited the parties from disclosing to the
arbitrator the ‘‘high/low’’ provision of the agreement.