Anthis v. Windom ( 2020 )

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KRISTINE S. ANTHIS v. ROBERT D. WINDOM
(AC 42183)
Bright, Moll and Bear, Js.
Syllabus
The plaintiff sought to recover damages allegedly sustained as a result of
the defendants’ negligence and recklessness, arising out of an incident
in which the defendant’s motor vehicle struck the front of the plaintiff’s
neighboring home. Prior to trial, the court denied the defendant’s motion
in limine seeking to preclude the plaintiff from offering evidence regard-
ing her home repair costs, which he asserted were paid for by the
plaintiff’s homeowners insurer. The jury returned a verdict in favor of
the plaintiff, and the court thereafter denied the defendant’s motion
for remittitur and rendered judgment for the plaintiff, from which the
defendant appealed to this court. Subsequently, the court denied the
defendant’s motion to open the judgment, in which he argued that
a payment made by his automobile liability insurer to the plaintiff’s
homeowners insurer constituted a payment by him, such that requiring
him to pay the economic damages awarded by the jury would result in
a double payment and that the plaintiff’s insurer was equitably subro-
gated to the plaintiff’s rights to seek recovery from the defendant. Held:
1. The trial court properly denied the defendant’s motion in limine; although
there was no dispute that the plaintiff’s insurer paid the plaintiff on an
insurance claim submitted by her in relation to the incident, the court
observed that there may have been a discrepancy between the amount
the plaintiff paid for the repairs and the amount she was reimbursed
by her insurer, and the court addressed the defendant’s double recovery
claim when it adjudicated his motion for remittitur, as to which the
parties had created an evidentiary record.
2. The defendant could not prevail on his claim that the trial court improperly
denied his motions for remittitur and to open the judgment, because
the court’s denial of these motions resulted in a double recovery by the
plaintiff, and a double payment by the defendant with respect to property
damage expenses the plaintiff had incurred: the court properly declined
to consider the defendant’s double payment and equitable subrogation
claims in deciding his motion for remittitur, as this court’s review of
the defendant’s pleadings and prejudgment motions revealed no mention
of the issues of double payment and equitable subrogation, the defendant
did not assert payment as a special defense or plead a right of setoff,
and, although the defendant asserted in his motion for remittitur that
he was seeking to prevent a double recovery, the defendant did not
refer to his automobile liability insurer or present his claims of double
payment and equitable subrogation therein; rather, the record revealed
that the defendant raised his double payment claim for the first time
during argument on his motion for collateral source reduction, which
immediately preceded argument on his motion for remittitur, the defen-
dant’s trial counsel did not cite any legal authority in presenting that
particular argument, counsel made no perceivable reference to his
related equitable subrogation claim during argument on his postverdict
motions, and the defendant failed to raise his equitable subrogation
claim to the court in any manner during the prejudgment proceedings;
moreover, the court did not err by declining to consider the defendant’s
double payment and equitable subrogation claims in deciding the defen-
dant’s motion to open, when he failed to raise them, either adequately
or at all, to the court prior to it rendering judgment in the plaintiff’s
favor; furthermore, even if this court were to agree with the defendant
that he properly raised his double payment and equitable subrogation
claims, the defendant could not prevail on the merits because, even
though the defendant claimed that his automobile liability insurer reim-
bursed the plaintiff’s homeowners insurer for the property damage
expenses incurred by the plaintiff that constituted the majority of the
economic damages awarded by the jury, the evidence in the record
demonstrated only that the defendant’s insurer made a payment to the
plaintiff’s insurer in relation to the plaintiff’s insurance claim, it did not
include a dollar for dollar breakdown of the payment, which did not
match the sum remitted by the plaintiff’s insurer to the plaintiff, and,
therefore, it was unknown what portion, if any, of the defendant’s insur-
er’s payment was intended to recompense the plaintiff’s insurer for
the property damage expenses incurred by the plaintiff, and without
evidence detailing the precise nature of the payment by the defendant’s
insurer, the defendant’s double payment and equitable subrogation
claims failed.
Argued November 18, 2019—officially released May 26, 2020
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the court, Pierson, J., denied the defen-
dant’s motion to preclude certain evidence; thereafter,
the case was tried to the jury before Pierson, J.; verdict
and judgment for the plaintiff; subsequently, the court
denied the defendant’s motion for remittitur, and the
defendant appealed to this court; thereafter, the court
denied the defendant’s motion to open the judgment,
and the defendant filed an amended appeal. Affirmed.
Jack G. Steigelfest, for the appellant (defendant).
Lawrence C. Sgrignari, for the appellee (plaintiff).
Opinion
MOLL, J. The defendant, Robert D. Windom, appeals
from the judgment of the trial court denying various
motions that he filed in the present action commenced
by the plaintiff, Kristine S. Anthis, in favor of whom
the court rendered judgment following a jury trial. On
appeal, the defendant claims that the court improperly
denied his (1) motion in limine, (2) motion for remitti-
tur, and (3) motion to open, which, the defendant con-
tends, effectively resulted in a double recovery by the
plaintiff and a double payment by the defendant with
respect to property damage expenses incurred by the
plaintiff. We affirm the judgment of the trial court.
The following facts, which are undisputed, and proce-
dural history are relevant to our resolution of this
appeal. On January 12, 2017, the plaintiff commenced
the present action, sounding in negligence and reckless-
ness, against the defendant, arising out of a July 12,
2015 incident during which the defendant, while
attempting to back his motor vehicle toward the garage
of his residence, lost control of his vehicle, which struck
the front of the plaintiff’s neighboring home.1 On March
23, 2017, the defendant filed an answer, in which he
did not assert any special defenses.
On April 10, 2018, the plaintiff filed a trial manage-
ment report, stating in relevant part that ‘‘[t]he plaintiff
expects to file a motion in limine seeking to preclude
the defendant from referencing and/or introducing evi-
dence of any documentation which relates to [the] plain-
tiff’s recovery of damages from her [homeowners]
insurer.’’ The plaintiff did not file any such motion
thereafter.
The matter was tried to the jury in August, 2018.
On August 21, 2018, prior to the start of evidence, the
defendant filed a motion in limine, dated August 20,
2018, seeking an order ‘‘prohibiting the plaintiff from
offering into evidence the cost of [her] home repairs,’’
which the defendant contended were paid for by the
plaintiff’s homeowners insurer, or, in the alternative,
permission to ‘‘cross-examine the plaintiff on the fact
that her home repair expenses were paid for by her
own [homeowners] insurance company.’’ The same day,
following argument, the trial court denied the motion
in limine. At trial, evidence was admitted into the record
reflecting that, in the aftermath of the July, 2015 inci-
dent, the plaintiff and her spouse had paid, among other
things, $36,750 in home repair expenses and incurred
$14,264.23 in temporary housing costs.2
On August 22, 2018, the jury returned its verdict in
favor of the plaintiff, awarding $55,738.54 in compensa-
tory damages, consisting solely of economic damages,3
as to all counts. The jury also awarded the plaintiff
punitive damages, the amount of which was later deter-
mined by the court, on the basis of the jury’s finding
that she had proven common-law recklessness.
On August 27, 2018, the defendant filed a motion for
collateral source reduction and a motion for remittitur.
In both motions, the defendant asserted that, in order
to prevent a double recovery by the plaintiff, the court
had to reduce the jury’s verdict to account for insurance
payments received by the plaintiff from her homeown-
ers insurer. On August 30, 2018, the plaintiff filed objec-
tions to both motions. On September 17, 2018, the court
held a hearing on those postverdict motions. The same
day, the court denied the motion for collateral source
reduction and sustained the plaintiff’s objection
thereto. On September 18, 2018, the court denied the
motion for remittitur and sustained the plaintiff’s objec-
tion thereto. Thereafter, the court rendered judgment
on the jury’s verdict in the amount of $75,723.05, con-
sisting of $55,738.54 in compensatory damages,
$19,205.25 in punitive damages, and $779.26 in taxed
costs. On October 9, 2018, the defendant filed this
appeal.
On November 7, 2018, the defendant filed a motion
requesting that the trial court open the judgment and
reconsider its decision declining to reduce the jury’s
verdict. On November 15, 2018, the plaintiff filed an
objection thereto. On December 21, 2018, after hearing
argument on December 10, 2018, the court denied the
motion to open. The defendant then amended this
appeal to encompass that decision. Additional facts and
procedural history will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly denied his motion in limine. We disagree.
We begin by setting forth the standard of review
governing this claim. ‘‘A trial court may entertain a
motion in limine made by either party regarding the
admission or exclusion of anticipated evidence. . . .
The judicial authority may grant the relief sought in the
motion or other relief as it may deem appropriate, may
deny the motion with or without prejudice to its later
renewal, or may reserve decision thereon until a later
time in the proceeding. . . . [T]he motion in limine
. . . has generally been used in Connecticut courts to
invoke a trial judge’s inherent discretionary powers to
control proceedings, exclude evidence, and prevent
occurrences that might unnecessarily prejudice the
right of any party to a fair trial. . . . The trial court’s
ruling on evidentiary matters will be overturned only
upon a showing of a clear abuse of the court’s discre-
tion. . . . We will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . [Thus,
our] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) McBurney v. Paquin, 302 Conn. 359, 377–78, 28
A.3d 272 (2011).
In his motion in limine, the defendant moved to pre-
clude the plaintiff from offering evidence regarding her
home repair costs, which he asserted had been paid
for by her homeowners insurer. The defendant con-
tended that ‘‘[t]he plaintiff should not be able to double
dip, and unfairly suggest to the jury that all [of] her
extensive repair costs were never paid,’’ because,
according to the defendant, this would create a risk
that the jury might improperly inflate any noneconomic
damages that it chose to award or be swayed to award
punitive damages.
During argument on the motion in limine, the defen-
dant’s trial counsel asserted that it was inequitable for
the plaintiff to ‘‘double dip’’ by seeking economic dam-
ages that included property damage costs paid for by
her homeowners insurer. The defendant’s trial counsel
further argued that the plaintiff intended to offer into
evidence personal checks reflecting payments made by
her for the home repairs, which would falsely suggest
to the jury that she had paid for them with her own
funds without the contribution of insurance proceeds.
In response, the plaintiff’s counsel argued that the
motion in limine was procedurally improper because
(1) the defendant had failed to file a trial management
report indicating that he intended to file any such
motion, and (2) the defendant’s trial counsel had repre-
sented in chambers that he would not be ‘‘inquiring
on issues of insurance.’’ The plaintiff’s counsel further
argued that the plaintiff would be prejudiced if evidence
regarding her property damage expenses was precluded
or, alternatively, the defendant was permitted to cross-
examine her on the insurance payments remitted to
her by her insurer. Additionally, the plaintiff’s counsel
argued that the plaintiff had not been made whole by
the insurance payments and that her insurer was a
collateral source, such that the insurance proceeds that
it had remitted to her could not be deducted from the
jury’s economic damages award. Thereafter, the court
asked the plaintiff’s counsel whether it was his position
‘‘that to the extent the defendant is entitled to any sort
of reduction for amounts received by [the plaintiff] that
that reduction would be addressed appropriately in
some sort of posttrial proceeding.’’ The plaintiff’s coun-
sel responded that the defendant ‘‘would have, obvi-
ously, the opportunity to file posttrial motions and the
court would then have to entertain those issues.’’ The
court thereafter denied the defendant’s motion in
limine.
On appeal, the defendant asserts that the court
abused its discretion in declining to preclude evidence
regarding the plaintiff’s home repair costs because her
homeowners insurer had paid those expenses and, thus,
admitting evidence of those costs enabled the plaintiff
to seek a double recovery for the same expenses in the
form of economic damages.4 At the time of the court’s
denial of the motion in limine, however, although there
was no dispute that the plaintiff’s insurer had paid the
plaintiff on an insurance claim submitted by her in
relation to the July, 2015 incident, the total amount of
the plaintiff’s home repair expenses and the total
amount and nature of the insurance proceeds received
by the plaintiff were unknown. Indeed, during argu-
ment, the court observed that ‘‘the fact is that there
may actually be a discrepancy between the amount [the
plaintiff] paid out for [the] repairs and . . . the amount
[the plaintiff] was reimbursed by [her] insurer.’’ The
court later addressed the defendant’s double recovery
claim in adjudicating his motion for remittitur, with
respect to which the parties created an evidentiary
record. Under these circumstances, we find no error
in the court’s denial of the defendant’s motion in limine.5
II
We next turn to the defendant’s intertwined claims
that the trial court improperly denied his motion for
remittitur and his motion to open.6 These claims are
unavailing.
We begin by setting forth the relevant standards of
review. With respect to a motion for remittitur, ‘‘the
trial court is required to review the evidence in the light
most favorable to sustaining the verdict. . . . Upon
completing that review, the court should not interfere
with the jury’s determination except when the verdict
is plainly excessive or exorbitant. . . . The ultimate
test [that] must be applied to the verdict by the trial
court is whether the jury’s award falls somewhere
within the necessarily uncertain limits of just damages
or whether the size of the verdict so shocks the sense
of justice as to compel the conclusion that the jury
[was] influenced by partiality, prejudice, mistake or
corruption. . . . The court’s broad power to order a
remittitur should be exercised only when it is manifest
that the jury [has awarded damages that] are contrary
to law, not supported by proof, or contrary to the court’s
explicit and unchallenged instructions. . . . Accord-
ingly, we consistently have held that a court should
exercise its authority to order a remittitur rarely—only
in the most exceptional of circumstances . . . and
[when] the court can articulate very clear, definite and
satisfactory reasons . . . for such interference. . . .
‘‘[O]ur review of the trial court’s decision [to grant
or to deny remittitur] requires careful balancing. . . .
[T]he decision whether to reduce a jury verdict because
it is excessive as a matter of law . . . rests solely within
the discretion of the trial court. . . . [T]he same gen-
eral principles apply to a trial court’s decision to order
a remittitur. [Consequently], the proper standard of
review . . . is that of an abuse of discretion. . . .
[T]he ruling of the trial court . . . is entitled to great
weight and every reasonable presumption should be
given in favor of its correctness.’’ (Citations omitted;
internal quotation marks omitted.) Ashmore v. Hartford
Hospital, 331 Conn. 777, 782–83, 208 A.3d 256 (2019).
With regard to a motion to open, ‘‘[t]he principles
that govern motions to open or set aside a civil judgment
are well established. Within four months of the date
of the original judgment, Practice Book [§ 17-4] vests
discretion in the trial court to determine whether there
is a good and compelling reason for its modification or
vacation. . . . The exercise of equitable authority is
vested in the discretion of the trial court . . . to grant
or to deny a motion to open a judgment. The only
issue on appeal is whether the trial court has acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action.’’ (Internal quotation marks
omitted.) Jepsen v. Camassar, 196 Conn. App. 97, 119–
20, A.3d (2020).
In his motion for remittitur, the defendant moved for
a reduction of the jury’s verdict ‘‘in order to account
for homeowners insurance payments already received
by the plaintiff.’’ The defendant asserted that the eco-
nomic damages awarded by the jury correlated to the
property damage costs incurred by the plaintiff, and
that the majority of the property damage expenses had
been paid for by the plaintiff’s insurer such that a
remittitur was necessary to prevent the plaintiff from
receiving a double recovery. The defendant cited Gion-
friddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d
540 (1989), for the proposition that ‘‘a plaintiff may be
compensated only once for his or her damages for the
same injury.’’ In her objection, the plaintiff argued that
our Supreme Court in Gionfriddo determined that a
plaintiff could not recover damages from a joint tortfea-
sor after having recovered identical damages for the
same injury in a prior action against the other joint
tortfeasors. The plaintiff argued that the defendant’s
reliance on Gionfriddo was misplaced because the
present action did not involve joint tortfeasors. The
plaintiff further argued that the resolution of the defen-
dant’s motion was controlled by our Supreme Court’s
decision in Saint Bernard School of Montville, Inc. v.
Bank of America, 312 Conn. 811, 95 A.3d 1063 (2014),
in which the court concluded that a defendant was not
entitled to a reduction of a plaintiff’s verdict to account
for insurance proceeds received by the plaintiff because
‘‘[u]nder case law dating back more than one century,
th[e] court has held that a defendant is not entitled to
be relieved from paying any part of the compensation
due for injuries proximately resulting from his [or her]
act where payment comes from a collateral source,
wholly independent of him [or her].’’ (Internal quotation
marks omitted.) Id., 841.
During the hearing on the defendant’s motions for
collateral source reduction and remittitur, the court
admitted into evidence two exhibits offered by the
defendant’s trial counsel. The first exhibit was a cover
letter, dated October 20, 2015, accompanied by a packet
of documents, sent by the plaintiff’s homeowners
insurer to the defendant’s automobile liability insurer,
requesting that the defendant’s insurer pay $52,786.20
as reimbursement for the payment that it made to the
plaintiff on her insurance claim. The second exhibit
was a one page financial log indicating that a payment
in the amount of $48,395.22 was remitted by the defen-
dant’s insurer to the plaintiff’s insurer on February 12,
2016. The financial log categorized the payment as a
‘‘Loss Payment’’ with respect to ‘‘KRISTINE ANTHIS/
Property Damage.’’ The financial log provided no addi-
tional details concerning the nature of that payment.7
In arguing in support of the motion for remittitur,
the defendant’s trial counsel asserted that the jury did
not hear evidence of the payment by the plaintiff’s
homeowners insurer to the plaintiff for the property
damage costs she incurred, and that maintaining the
jury’s verdict would provide the plaintiff with a windfall.
The court questioned the defendant’s trial counsel as
to whether the plaintiff was enjoying a double recovery,
given that the present case did not involve multiple
tortfeasors, and that the plaintiff had paid premiums in
order to receive the benefit of the insurance proceeds
from her insurer. The defendant’s trial counsel
responded that the defendant’s automobile liability
insurer had reimbursed the plaintiff’s homeowners
insurer for its payment to the plaintiff, such that the
present case was distinguishable from a situation in
which an insured party simply receives insurance pro-
ceeds from his or her insurer. In opposition to the
motion for remittitur, the plaintiff’s counsel argued that
Saint Bernard School of Montville, Inc. v. Bank of
America, supra, 312 Conn. 811, governed. The plaintiff’s
counsel further argued that the $48,395.22 payment
remitted by the defendant’s insurer to the plaintiff’s
insurer did not match the $51,786.20 sum paid to the
plaintiff by her insurer,8 and that the evidence did not
detail the nature of the payment by the defendant’s
insurer to the plaintiff’s insurer (i.e., the specific items
it covered).
In denying the defendant’s motion for remittitur, the
court determined that the defendant was seeking a
remittitur to prevent a double recovery by the plaintiff,
where the plaintiff’s homeowners insurer had paid ‘‘the
great majority of the plaintiff’s property damage
expenses . . . .’’ (Internal quotation marks omitted.)
The court rejected the defendant’s reliance on Gion-
friddo v. Gartenhaus Cafe, supra, 211 Conn. 67, stating
that the present action involved neither joint tortfeasors
nor satisfaction for a loss that was the subject of multi-
ple judgments. Additionally, citing Saint Bernard
School of Montville, Inc. v. Bank of America, supra,
312 Conn. 841–42, the court observed that the plaintiff
had paid premiums in exchange for the coverage pro-
vided by her insurer and that, ‘‘[i]f there must be a
windfall certainly it is more just that the injured person
shall profit therefrom, rather than the wrongdoer
[being] relieved of his [or her] full responsibility for his
[or her] wrongdoing.’’ (Internal quotation marks
omitted.)
After the court rendered judgment in the plaintiff’s
favor and after the defendant filed this appeal, the
defendant filed a motion to open the judgment. In that
motion, he asserted that, in denying his motion for
remittitur, the court addressed the issue of double
recovery, but it did not consider the distinct issue of
double payment; that is, whether the jury’s verdict, in
effect, obligated the defendant to pay the plaintiff twice
for the same damages. The defendant argued that,
although his motions for remittitur and collateral source
reduction ‘‘on their face focus[ed] on the plaintiff’s dou-
ble recovery . . . the defendant at oral argument on
the motions also argued that a failure to reduce the
verdict in this case would amount to double payment.’’
The defendant asserted that the payment by his automo-
bile liability insurer to the plaintiff’s homeowners
insurer, in effect, constituted a payment by him, such
that requiring him to pay the economic damages
awarded by the jury, consisting of the plaintiff’s prop-
erty damage expenses, would result in a double pay-
ment by him. In addition, the defendant argued that the
court’s reliance on Saint Bernard School of Montville,
Inc. v. Bank of America, supra, 312 Conn. 811, in deny-
ing his motion for remittitur was misguided because
that case did not address a situation in which a plaintiff’s
insurer pursues a subrogation claim against a defen-
dant’s insurer. The defendant contended that the plain-
tiff’s insurer, after paying the plaintiff for the property
damage costs, had become equitably subrogated to the
plaintiff’s rights to seek recovery from the defendant
and that, once the plaintiff’s homeowners insurer had
pursued the equitable subrogation claim against the
defendant’s insurer, the plaintiff was barred from seek-
ing damages from the defendant on the basis of the
property damage expenses that she had incurred.
In her objection to the motion to open, the plaintiff
argued that no good and compelling reason existed to
warrant opening the judgment because, inter alia, the
defendant had failed to properly raise the issue of dou-
ble payment before the court in his pleadings or in his
postverdict motions. The plaintiff further argued that
her loss ‘‘exceeds the damages recovered from [her]
insurer and the amount [her] insurer recovered from
the defendant’s insurer . . . .’’ In a reply brief, the
defendant asserted, inter alia, that (1) he raised the
double payment issue during argument on his postver-
dict motions and that the parties, during argument on
his motion in limine, had agreed to litigate issues regard-
ing insurance payments posttrial, and (2) the plaintiff
had been made more than whole with regard to her
property damage expenses by way of the insurance
proceeds received from her homeowners insurer and
the jury’s verdict.
In denying the defendant’s motion to open, the court
first turned to the defendant’s double payment claim.
Addressing the defendant’s assertion that the court had
failed to consider his double payment claim in denying
his postverdict motions, the court determined that the
defendant had failed to timely or properly raise that
claim to the court, thereby abandoning it along with
his related equitable subrogation claim. Specifically, the
court determined that the double payment and equitable
subrogation claims were not briefed by the defendant
in either his motion for collateral source reduction or
his motion for remittitur. The court further determined
that the defendant raised the double payment claim
for the first time during argument on his postverdict
motions, without citation to any relevant legal authority.
The court concluded that it had the discretion to decline
to consider claims raised for the first time during argu-
ment without legal briefing or citation to relevant, sup-
porting legal authority. In addition, observing that a
defense based on payment had to be asserted by way
of a special defense in accordance with Practice Book
§ 10-50,9 the court stated that the defendant had failed
to assert a payment defense in his answer and that it
would ‘‘not allow [the defendant] to raise it for the first
time on a postjudgment basis.’’
Turning next to the issue of double recovery, the
court relied on the rationale set forth in its denial of
the defendant’s motion for remittitur and concluded
that the plaintiff was not receiving a double recovery.
The court acknowledged the defendant’s argument that
Saint Bernard School of Montville, Inc. v. Bank of
America, supra, 312 Conn. 811, was distinguishable on
the ground that the plaintiff’s homeowners insurer in
the present case had pursued a subrogation claim
against the defendant’s automobile liability insurer;
however, the court declined to address that argument
‘‘in light of the fact that in this case, the defendant did
not seasonably or properly raise the issue of double
payment . . . .’’
The crux of the defendant’s claims on appeal is that
(1) the jury’s verdict obligated him to double pay the
plaintiff for her home repair expenses and (2) the plain-
tiff is barred from seeking recovery for those expenses
because her homeowners insurer pursued a subroga-
tion claim against the defendant’s automobile liability
insurer. The defendant asserts that he adequately raised
the issues of double payment and equitable subrogation
in his motion in limine, in his motion for remittitur,
and/or during argument on those motions, and, there-
fore, the court erred by declining to consider those
issues in deciding his motion for remittitur and his
motion to open. The defendant further asserts that, on
the merits of his double payment and equitable subroga-
tion claims, he is entitled to a reduction of the verdict.
For the reasons that follow, we are not persuaded.
Our review of the defendant’s pleadings and prejudg-
ment motions reveals no mention of the issues of double
payment and equitable subrogation. The defendant did
not assert payment as a special defense10 or plead a
right of setoff.11 In his motion in limine, the defendant
cursorily stated that ‘‘[t]he plaintiff’s home repair bills
were paid . . . by her [homeowners] carrier, which
was in turn reimbursed by the defendant’s [automobile]
insurance carrier,’’ and that ‘‘[the] plaintiff’s counsel
is aware that the defendant’s insurance carrier . . .
reimbursed the plaintiff’s [homeowners] carrier for
most of these expenses’’; however, the defendant did
not make any cognizable assertion that he was facing
a possible double payment, nor did he raise his equitable
subrogation claim.12 In his motion for remittitur, the
defendant asserted that he was seeking a remittitur
‘‘in order to prevent a double recovery’’; however, the
defendant did not refer to his automobile liability
insurer or present his claims of double payment and
equitable subrogation therein.
The record reveals that the defendant raised his dou-
ble payment claim for the first time during argument
on his motion for collateral source reduction, which
immediately preceded argument on his motion for
remittitur. The defendant’s trial counsel stated in rele-
vant part that, ‘‘in this case, [the defendant’s] insurance
company has already paid these damages. . . . [The
defendant’s insurer], in effect, is being asked to pay
this again to the plaintiff and that just doesn’t make
sense to me.’’ He did not cite any legal authority in
presenting that particular argument.13 During argument
on the motion for remittitur, at the outset of which the
defendant’s trial counsel asserted that ‘‘many of the
same arguments [raised during argument on the motion
for collateral source reduction] apply,’’ counsel again
argued that the defendant was being asked to double
pay. He did not cite any legal authority in support of that
argument.14 Additionally, the defendant’s trial counsel
made no perceivable reference to the defendant’s
related equitable subrogation claim during argument on
the defendant’s postverdict motions.
In light of the foregoing, the defendant failed to raise
his equitable subrogation claim to the trial court in any
manner during the prejudgment proceedings. He raised
his double payment claim for the first time during argu-
ment on his motions for collateral source reduction and
remittitur; however, he did not support those claims
with citations to any relevant legal authorities. Under
these circumstances, we conclude that the trial court
did not err by declining to consider those claims in
deciding the defendant’s motion for remittitur. See
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 132 Conn. App. 85, 97, 30
A.3d 38 (2011) (noting that trial court properly exer-
cised discretion not to consider claim raised for first
time during argument and without citation to legal
authority and, therefore, declining to review claim on
appeal), aff’d on other grounds, 311 Conn. 123, 84 A.3d
840 (2014).
We further conclude that the court did not err by
declining to consider the defendant’s double payment
and equitable subrogation claims in deciding the defen-
dant’s motion to open, notwithstanding that those
claims were briefed and argued in connection there-
with. In deciding a motion to open, a trial court is not
required to consider a claim raised for the first time
therein. See Hirsch v. Woermer, 184 Conn. App. 583,
593, 195 A.3d 1182, cert. denied, 330 Conn. 938, 195
A.3d 384 (2018). Similarly, a court need not grant a
movant a proverbial second bite at the apple by consid-
ering a claim raised in a motion to open that the movant
had failed to present properly to the court at an earlier
juncture. Accordingly, we discern no error in the court’s
decision not to address the defendant’s double payment
and equitable subrogation claims when the defendant
failed to raise those claims, either adequately or at all,
to the court prior to it rendering judgment in the plain-
tiff’s favor.
Even if we were to agree with the defendant that he
had properly raised his double payment and equitable
subrogation claims to the trial court, the defendant can-
not prevail on the merits thereof on the record before
us. The defendant’s claims are grounded in his con-
tention that his automobile liability insurer reimbursed
the plaintiff’s homeowners insurer for the property
damage expenses incurred by the plaintiff that consti-
tute the majority of the economic damages awarded by
the jury. The evidence in the record—in particular, the
cover letter and accompanying packet sent by the plain-
tiff’s insurer to the defendant’s insurer, and the financial
log submitted by the defendant in support of his motions
for collateral source reduction and remittitur15—dem-
onstrates only that the defendant’s insurer made a
$48,395.22 payment to the plaintiff’s insurer in relation
to the plaintiff’s insurance claim. The evidence does not
include a dollar for dollar breakdown of the $48,395.22
payment, which does not match the $51,786.20 sum
remitted by the plaintiff’s insurer to the plaintiff. It is
unknown what portion, if any, of the payment by the
defendant’s insurer was intended to recompense the
plaintiff’s insurer for the property damage expenses
incurred by the plaintiff. Without evidence detailing
the precise nature of the payment by the defendant’s
insurer, the defendant’s double payment and equitable
subrogation claims fail.16
In sum, we reject the defendant’s claims that the trial
court improperly denied his motion for remittitur and
his motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Counts one and three of the plaintiff’s operative complaint sounded in
negligence and common law recklessness, respectively. In count two, the
plaintiff alleged that (1) the defendant’s operation of his motor vehicle
violated General Statutes § 14-222, and (2) the defendant’s violation of § 14-
222 was a substantial factor in causing the injuries, damages, and losses
claimed by the plaintiff, enabling her to recover double or treble damages
pursuant to General Statutes § 14-295. The plaintiff later withdrew count two.
2
One of the plaintiff’s exhibits indicated that the total sum of temporary
housing costs was $16,264.23, which included a $2000 refundable security
deposit that the plaintiff did not claim as part of her damages.
3
As reflected in interrogatories answered by the jury, the economic dam-
ages award consisted of the following: $36,750 for home repair expenses;
$14,264.23 for temporary housing costs; $149 for the cost of a sonogram for
the plaintiff, who was pregnant at the time of the July, 2015 incident; $496.88
for the cost of an emergency tarp placed over the entryway of the home
and other related services; and $4078.43 for professional services used by
the plaintiff and her spouse to assist them in hiring a contractor to repair
the damage to the home. The jury did not award noneconomic damages.
4
The defendant also contends that evidence of the home repair costs was
prejudicial because it ‘‘would tend to suggest a starting point for evaluating
the noneconomic damages sought by the plaintiff.’’ This argument is unavail-
ing as the jury did not award the plaintiff noneconomic damages.
5
We also note that the defendant filed the motion in limine shortly before
the start of evidence. The defendant did not file a trial management report
indicating that any such motion would be filed, and the plaintiff represents
that the defendant’s trial counsel, in chambers, represented that he did not
plan to file motions in limine. During argument on the motion in limine, the
defendant’s trial counsel conceded that the motion in limine had been filed
‘‘late.’’ It was well within the court’s discretion to deny the motion in limine
under these circumstances, as well.
6
The defendant is not challenging on appeal the denial of his motion for
collateral source reduction.
7
The court also admitted into evidence as a plaintiff’s exhibit a portion
of the plaintiff’s homeowners insurance policy.
8
The letter sent by the plaintiff’s homeowners insurer to the defendant’s
automobile liability insurer indicated that the plaintiff’s spouse had paid a
$1000 deductible, which would be refunded to the plaintiff’s spouse upon
payment by the defendant’s insurer in the amount of $52,786.20 to the
plaintiff’s insurer.
9
Practice Book § 10-50 provides in relevant part: ‘‘No facts may be proved
under either a general or special denial except such as show that the plain-
tiff’s statements of facts are untrue. Facts which are consistent with such
statements but show, notwithstanding, that the plaintiff has no cause of
action, must be specially alleged. Thus . . . payment (even though non-
payment is alleged by the plaintiff) . . . must be specially pleaded . . . .’’
10
In denying the defendant’s motion to open, the trial court determined
that the defendant had failed to assert a special defense of payment in
compliance with Practice Book § 10-50. We need not consider the effect of
the defendant’s failure to plead payment as a special defense in resolving
his claims on appeal.
11
Practice Book § 10-54 provides in relevant part: ‘‘In any case in which
the defendant has either in law or in equity or in both . . . [a] right of setoff
. . . against the plaintiff’s demand, the defendant may have the benefit of
any such setoff . . . by pleading the same as such in the answer . . . .’’
12
During argument on the motion in limine, the defendant’s trial counsel
made a similar statement, that the defendant’s automobile liability insurer
had reimbursed the plaintiff’s homeowners insurer for its payment to the
plaintiff. The defendant’s trial counsel presented no cognizable arguments,
however, concerning the defendant’s claims of double payment and equita-
ble subrogation.
13
Earlier during argument on the motion for collateral source reduction,
the defendant’s trial counsel cited Rathbun v. Health Net of the Northeast,
Inc., 315 Conn. 674, 110 A.3d 304 (2015), to support the proposition that
‘‘Connecticut for many, many years has not allowed double recoveries.’’ In
Rathbun, our Supreme Court concluded that General Statutes § 17b-265 (a)
authorized a designated assignee of the Department of Social Services to
seek reimbursement from Medicaid recipients for medical costs recovered
by the recipients from liable third parties. Id., 693, 703. Rathbun did not
involve a claim of double payment. Later during argument, the defendant’s
trial counsel cited Jones v. Riley, 263 Conn. 93, 818 A.2d 749 (2003), which,
he posited, illustrated why collateral source hearings are geared to prevent
double recoveries. In Jones, our Supreme Court concluded that the plaintiff
was entitled to offset a reduction of her economic damages award by the
amount of premiums she had paid attributable to the medical payments
coverage provision of her automobile liability insurance policy only, rather
than by the amount of premiums she had paid for the entire policy. Id.,94–95. Jones, likewise, did not concern a double payment claim.
14
At the beginning of argument on the motion for remittitur, the defen-
dant’s trial counsel cited Rent-A-PC, Inc. v. Rental Management, Inc., 96
Conn. App. 600, 901 A.2d 720 (2006), which, he contended, contained a ‘‘very
good discussion by [this court] citing a lot of other older cases on how trial
courts should not permit a double recovery.’’ In Rent-A-PC, Inc., this court
affirmed the trial court’s judgment rendered in favor of the plaintiff on its
unjust enrichment claim and on a breach of contract claim raised by the
defendant in a counterclaim. Id., 601–604. Rent-A-PC, Inc., did not involve
a claim of double payment.
15
On September 19, 2018, one day after the trial court denied the defen-
dant’s motion for remittitur, the defendant filed a ‘‘supplemental memoran-
dum’’ seeking to present to the court additional documents ‘‘evidencing that
the defendant’s insurance carrier . . . paid the majority of the plaintiff’s
property damage expenses.’’ The majority of the appended documents
appears to be a copy of the cover letter and a portion of its accompanying
packet, which were introduced into evidence by the defendant during the
hearing on his postverdict motions. The remaining appended documents
include a purported check from the defendant’s automobile liability insurer
payable to the plaintiff’s homeowners insurer in the amount of $48,395.22
and an apparent invoice regarding the payment by the defendant’s insurer.
These appended documents were not properly before the court, as the
defendant filed them following the court’s denial of his motion for remittitur
and without permission from the court. Even if the defendant had timely
and properly submitted them, and the plaintiff had no objection to them,
we are not convinced that these appended documents, in conjunction with
the evidence properly in the record, establish that the payment by the
defendant’s insurer to the plaintiff’s insurer operated to reimburse the plain-
tiff’s insurer with respect to the property damage expenses incurred by the
plaintiff and awarded to her as economic damages by the jury.
16
The defendant asserts that, in the event that we agree with the trial
court that he failed to present his double payment and equitable subrogation
claims properly to the court, the court committed plain error by failing to
reduce the jury’s verdict or, in the alternative, requests that we exercise
our supervisory authority pursuant to Practice Book § 60-2 to review the
merits of his claims. As we have concluded in this opinion, even assuming
that the defendant had properly raised these claims to the trial court, the
defendant cannot prevail on the merits thereof on the record before us.
Thus, we need not address further the defendant’s request to invoke these
extraordinary remedies.