Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc.

BORDEN, J., with whom MCDONALD, J.,

joins, dissenting in part. I agree with and join the majority opinion, except part III A thereof, in which the majority holds that General Statutes (Rev. to 1983) § 52-192a permits a plaintiff the choice of whether to submit either a unified offer of judgment or individual offers of judgment to multiple defendants. In my view, the better construction of this statute leads to the conclusion that the statute does not contemplate a unified offer of judgment to multiple defendants.1 I therefore dissent from part III A of the majority opinion.

*760I begin with the language of the statute. It is obvious, from both the statutory language and its legislative history, that the legislature had in mind the paradigmatic case of one plaintiff and one defendant, and simply did not specifically address the situation, like this case, in which there is one plaintiff and more than one defendant. The language of the statute is cast in the singular; “the plaintiff may . . . file ... a written ‘offer of judgment’ . . . directed to the defendant”; (emphasis added) General Statutes (Rev. to 1983) § 52-192a (a); as is the legislative history. “[T]he intent of this Bill is to provide an incentive for both parties ... to settle close cases . . . .” (Emphasis added.) 22 H.R. Proc., Pt. 5, 1979 Sess., p. 1683, remarks of Representative John A. Berman.

I agree with the majority, however, that the language alone does not answer the question posed by this case, because General Statutes § 1-1 (f) states the common sense statutory notion that “[w]ords importing the singular number may extend and be applied to several persons or things . . . .” (Emphasis added.) The question, therefore, is how the statutory language in § 52-192a should be construed when it is applied to a factual situation that the legislature did not specifically contemplate.

I also agree with the majority that this question should be answered by construing the language in light of the purpose of the statute. In other words, given the purpose of the statute, should the singular language be construed to include the plural? My disagreement with the majority is over where that purposive process of construction leads.

To say that the language of the statute alone does not answer the question of construction, however, does not mean that the language does not at least suggest an answer. The statute requires that the offer be for “a *761sum certain. ’ ’ From the plaintiffs point of vi ew, a unified offer to multiple defendants is for “a sum certain.” From the defendants’ points of view, however, it is difficult to regard such an offer as “a sum certain” because it requires each defendant, within thirty days of the offer, either to accept the offer and thereby leave all the other codefendants free of any liability or, as is more likely to be the case in the real world of litigation, to attempt to secure some unspecified contribution from all or some of those codefendants.2 Thus, as a practical matter, no one defendant, faced with a unified offer of judgment, can realistically evaluate its own exposure created by that offer — namely, the potential for a substantial interest penalty — without that exposure being compared to that of the other defendants and to their own calculations of their own exposures. From the defendants’ point of view, that does not strike me as a strained meaning of “a sum certain.”

In my view, therefore, this language this somewhat in favor of the defendants’ reading of the statute. Reading this language in light of the purpose of the statute reinforces the linguistic suggestion that the statute does not contemplate a unified offer of judgment to multiple defendants.

The statute has a two part purpose: (1) to promote fair and reasonable settlements, and (2) to do so by *762penalizing the failure to accept an offer of judgment that later turns out to have been reasonable, gauged by the fact that it is less than the ultimate judgment. “[T]he purpose of § 52-192a ... is the promotion of fair and reasonable pretrial settlements, and, consequently, the conservation of judicial resources.” Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 811, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 528, 642 A.2d 7 (1994) (adopting Appellate Court’s “thoughtful and thorough unanimous opinion”). “The statute is . . . punitive in nature. . . . It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases.” (Citations omitted.) Lutynski v. B. B. & J. Trucking, Inc., supra, 812-13.

This punitive aspect has been repeatedly recognized in the cases applying § 52-192a. See, e.g., Camp, Dresser & McKee, Inc. v. Technical Design Associates, Inc., 937 F.2d 840, 845 (2d Cir. 1991) (award under § 52-192a “punitive” in nature); Boulevard Associates v. Sovereign Hotels, Inc., 861 F. Sup. 1132, 1141 (D. Conn. 1994) (award under § 52-192a “punitive in nature”); Murphy v. Marmon Group, Inc., 562 F. Sup. 856, 859 (D. Conn. 1983) (§ 52-192a imposes “increased penalty”); Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 91, 544 A.2d 158 (1988) (§ 52-192a provides “interest penalty”); Paine Webber Jackson & Curtis v. Winters, Inc., 22 Conn. App. 640, 651, 655, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990) (§ 52-192a is “procedural rule, punitive in nature” that creates “penalty” for wasting state’s judicial resources); Gillis v. Gillis, 21 Conn. App. 549, 554, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990) (§ 52-192a award “punitive” in nature); Edward Denike Tree Co. v. Butler, 21 Conn. App. 366, 369, 573 A.2d 349 (1990) (award under § 52-192a “punitive” in nature); Crowther v. Gerber Garment Technology, Inc., 8 Conn. *763App. 254, 267, 513 A.2d 144 (1986) (§ 52-192a award “punitive” in nature).

The punitive, as opposed to compensatory, aspect of the statute lies in the fact that the consequence of a defendant’s failure to accept such an offer of judgment is an award of interest on the ultimate judgment at the statutory rate of 12 percent from the date of the complaint or offer, depending on when the offer was made. That is a rate of interest above the statutory rate for either prejudgment or postjudgment interest, and it is awarded over and above any award of prejudgment interest, as in the present case. See, e.g., Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 164-65, 681 A.2d 293 (1996). Thus, the statute goes beyond the normal purpose of interest, which is to compensate the plaintiff for the loss of the use of money, and is intended to impose a penalty on the defendant for its failure to accept the offer of judgment. Indeed, in this case the penalty was so great — approximately $533,000 — that it exceeded by almost $100,000 the entire compensatory award of damages and discretionary prejudgment interest — approximately $434,000.

We generally interpret penal, as opposed to compensatory, statutes “with reasonable strictness in determining whether the act complained of comes within the description in the statute of the acts for which the person in fault is made liable.” (Internal quotation marks omitted.) Freeman v. Alamo Management Co., 221 Conn. 674, 684, 607 A.2d 370 (1992). That same principle should apply to the interpretation of § 52-192a involved in the present case.

I recognize that the statute can plausibly be read as the majority reads it. What the majority overlooks, however, is that it can also be read at least as plausibly — and in my view, more plausibly — the other way. I also recognize that, read either way, the statute will *764present some practical difficulties in its application by plaintiffs or defendants in those situations, like this case, not specifically contemplated by the legislature. Moreover, read either way — as permitting at the plaintiffs option a unified offer of judgment, or requiring separate offers of judgment to multiple defendants — the first purpose of the statute, namely, the promotion of reasonable and fair settlements, will be promoted.

The second purpose, however, namely, its punitive aspect, counsels strongly in favor of reading the statute with reasonable strictness against the party who seeks to take advantage of it, so as to require separate offers of judgment to multiple defendants. The burden of the ambiguity of the statute and of any practical difficulties in deciding how to interpret it should fall on the party who will gain from its punitive consequence, rather than on the party who will suffer that consequence.

Furthermore, requiring a plaintiff to make individual offers of judgment to multiple defendants will not impose significant burdens on the plaintiff. The plaintiff, after all, has the general burden of establishing the liability of and amount of damages to be paid by each defendant against whom he claims. I see no reason why the plaintiff should not also be required to structure separate offers of judgment against those same defendants, whether he seeks a “global settlement” of the case or individual settlements, especially when he stands to gain more than his just compensatory damages as a result of that process.3

*765This interpretation is consistent with the cases in other jurisdictions that have considered the issue under their offer of judgment statutes. Yada v. Simpson, Nev. , 913 P.2d 1261, 1263 (1996) (unified offer of judgment to multiple defendants not permitted because “[s]uch an offer of judgment does not serve to encourage settlement since the individual defendants are unable to determine their share of a joint offer and make a meaningful choice between accepting the offer or continuing to litigate”); Morgan v. Demille, 106 Nev. 671, 673-74, 799 P.2d 561 (1990) (unified offer of judgment by multiple plaintiffs not permitted); Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48, 76, 543 N.W.2d 852 (1995) (“single offer of one aggregate settlement figure to multiple defendant tortfeasors is not valid . . . because it does not permit each defendant to evaluate the offer from the perspective of that defendant’s assessment of his or her own exposure”); see Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937, 943 (Alaska 1983) (unified offer of judgment to multiple defendants not permitted); Taing v. Johnson Scaffold*766ing Co., 9 Cal. App. 4th 579, 586, 11 Cal. Rptr. 2d 820 (1992) (where plaintiff makes offer of judgment against multiple defendants, “the offer to any defendant against whom the plaintiff seeks to extract penalties for nonacceptance must be sufficiently specific to permit that individual defendant to determine the exact amount [the] plaintiff is seeking from him or her”); Taylor v. Clark, 883 P.2d 569, 570 (Colo. App. 1994) (offer of judgment statute does not apply when defendant “make[s] an offer of settlement to two plaintiffs that does not specifically apportion the settlement amount between the plaintiffs”); True v. T & W Textile Machinery, Inc., 112 N.C. App. 358, 360, 435 S.E.2d 551 (1993) (when “multiple plaintiffs . . . have independent claims for relief ... an offer of judgment [by a defendant] can be valid only if it is specific as to the offer made to each plaintiff’).4

The majority argues that, in this case, the defendant Aetna Insurance Company (Aetna) was able adequately to assess its own exposure in relation to the amount of the unified offer, implying that, from Aetna’s perspective, the offer of judgment of $300,000 should have been deemed reasonable and should have been accepted, even though in doing so the action would have been settled against the other defendants. See footnote 40 *767of the majority opinion. This is nothing more than the benefit of 20/20 hindsight.

The actual damages awarded to the plaintiff against Aetna were less than the $300,000 offer of judgment. The actual damages award was $297,317.69, and the ultimate judgment exceeded the offer of judgment only because the trial court, in its discretion pursuant to General Statutes (Rev. to 1983) § 37-3a,5 awarded prejudgment interest of approximately $137,000. See footnote 6 of the majority opinion. I fail to see the reasonableness of the plaintiffs offer of judgment in this factual scenario. Indeed, this was the classic case that we contemplated in Civiello v. Owens-Corning Fiberglass Corp., supra, 208 Conn. 92, wherein we stated that “where there are multiple defendants, no one of them would ordinarily be inclined to accept an offer of judgment for a sum approaching the full amount of damages likely to be awarded to a plaintiff, unless the likelihood of his being held solely liable were extreme. ”6

It is true that, in the present case, it was the discretionary prejudgment interest award that pushed the ultimate judgment over the amount of the offer of judgment. That is the result of earlier interpretations of § 52-*768192a requiring the inclusion of prejudgment interest in the comparison between the offer of judgment and the amount of the award. See footnote 35 of the majority opinion. It is also true that Aetna’s liability under the statute flows from that factor, and not from the fact that the offer of judgment was unified rather than individualized.

Under the majority’s statutory regime, however, not only must a defendant who is faced with an offer of judgment calculate, within a thirty day period, the likelihood of the damage award against him and, in a case in which compensatory prejudgment interest may be awarded, the likelihood and amount of such an award, but the defendant must now make that calculation, based not solely on its own interests and exposures, but also based on a calculation that is inextricably linked to those of his codefendants. This, in my view, transforms a statutory penalty scheme into a statutory bludgeon, and goes beyond a sound interpretation of that scheme.

Thus, the majority has put all of the weapons created by § 52-192a in the hands of the plaintiff, with practically no risk,7 and all of the exposure on the defendant. I recognize that much of that allocation is the result of the statutory scheme, which is aimed at encouraging settlements upon pain of certain penalties. By interpreting the statute to add another layer of advantage to the plaintiff — the plaintiff alone, for whatever tactical reasons, can decide whether to make a unified or individualized offers of judgment — the majority has, in my view, construed a penal statute broadly against the party penalized, rather than strictly against the party seeking to gain by the penalty.

*769I would, therefore, reverse that part of the judgment that awarded interest under § 52-192a.

Although this case does not present the issue, because the majority in dictum also states tha( muKiple plaintiffs may submit one unified offer of judgment, I also dissent from that dictum, for much the same reasons that I offer in support of what I regard as a better construction of § 52-192a.

We employed much the same reasoning in rejecting a claim of a plaintiff that partial settlements with other defendants should not reduce the plaintiffs “recovery” under § 52-192a. Thus, in Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 92, 544 A.2d 158 (1988), we stated that “where there are multiple defendants, no one of them would ordinarily be inclined to accept an offer of judgment for a sum approaching the full amount of damages likely to be awarded to a plaintiff, unless the likelihood of his being held solely liable were extreme. ... In such a situation each defendant would have little incentive to accept such an offer because of his expectation that some other defendant would eventually contribute to the reduction of his potential exposure for damages by pretrial settlement or by apportionment of responsibility in the ultimate judgment. See General Statutes §§ 52-572h (c), 52-5720.”

In this connection, the majority, purporting to quote from the brief of the amicus curiae, asserts that “the Connecticut Defense Lawyers Association, which filed an amicus brief in support of Aetna’s position on unified offers of judgment, recognized that exceptions could be carved out of a rule prohibiting unified offers in appropriate cases, ‘where the relationship among plaintiffs or among defendants is so strong that they should not be considered “multiple parties,” but instead a single party, for pmposes of the offer of judgment procedure.’ ”

The majority goes on to criticize this approach, implicitly asserting that the Connecticut Defense Lawyers Association has endorsed the above posi*765tion. The passage in that brief to which the majority refers, however, cannot plausibly be read as advocating any such exceptions. The amicus was simply offering for consideration a possible scenario, not presented by this case, in which one other jurisdiction has created an exception to the rule supported by the amicus.

The passage in the brief of the amicus to which the majority refers was part, of a footnote in which the amicus points out that the questions that we formulated for consideration by the amici did not refer to “any relationship among plaintiffs or defendants in a given case. Amicus curiae has responded with a discussion of the general rule that must obtain under the existing statute and rules. Like most general rules, there remains room, in an appropriate case, for the court to carve out an exception where the relationship among plaintiffs or among defendants is so strong that they should not be considered ‘multiple parties,’ but instead a single party, for purposes of the offer of judgment procedure. The California courts have gone so far as to turn this possible, exception to the general rule into the rule itself. See, e.g., Santantonio v. Westinghouse Broadcasting Co., [25 Cal. App. 4th 102, 30 Cal. Rptr. 2d 486 (1994)]. Even under the California rule, however, the multiple defendants in the [present case] could not be considered a single entity.” (Emphasis added.)

Two courts have carved out limited exceptions to this general rule. See, e.g., Santantonio v. Westinghouse Broadcasting Co., 25 Cal. App. 4th 102, 114-15, 30 Cal. Rptr. 2d 486 (1994) (multiple plaintiffs may make unified offer of judgment when interests are “identical,” and single plaintiff may make unified offer of judgment against several defendants when those defendants are sued under theory of joint and several liability); Testa v. Farmers Ins. Exchange, 164 Wis. 2d 296, 303, 474 N.W.2d 776 (1991) (single offer of judgment to multiple defendants permissible when multiple defendant tortfeasors are jointly and severally liable to plaintiff, defendants are all covered by same insurance policy, and offer is within insurance policy’s limits). No court, however, has read its jurisdiction’s statute, as the majority has in the present case, to leave solely in the hands of the plaintiff, or the plaintiffs, the choice as to whether to make a unified offer or individualized offers of judgment.

General Statutes (Rev. to 1983) § 37-3a provides in relevant part: “Except as provided in sections 37-3b and 52-192a, interest at the rate of eight 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 . . . .”

Furthermore, the majority’s assertion that Aetna could always recover against its principal; see footnote 41 of the majority opinion; contains two flaws as an argument for the majority’s interpretation of the statute. First, even in a case such as this, where there is a theoretical right of recovery, as a practical matter I doubt its viability in the construction trades. Indeed, the difficulty of recovering against contractors is one of the principal reasons for requiring payment and performance bonds such as that supplied by Aetna in this case. Second, any such light of recovery by a surety against its principal disappears in the usual tort or contract action to which § 52-192a applies as a general matter.

It cannot be plausibly maintained, as the majority suggests, that the plaintiffs potential exposure to attorney’s fees in the amount of $350 and subsequent costs, constitutes a significant disincentive, in most cases of any significance, to the plaintiffs making an offer of judgment that turns out to be less than his ultimate recovery.