Yeager v. Alvarez

134 Conn.App. 112

38 A.3d 1224

Donna YEAGER

v.Maria ALVAREZ et al.

No. 32702.

Appellate Court of Connecticut.

Argued Nov. 18, 2011.Decided March 6, 2012.

Dana M. Hrelic, with whom was Karen L. Dowd, Hartford, for the appellant (plaintiff).

Bridget M. Ciarlo, for the appellee (intervening plaintiff).

LAVINE, BEACH and ALVORD, Js.

BEACH, J.

This case presents the issue of how proceeds of a negligence action are to be distributed between the employer, which intervened for the purpose of recovering workers' compensation payments, and the employee's attorney. We hold that the “reasonable and necessary” expenditures recoverable under General Statutes § 31–293(a) are different from the enumerated fees and costs recoverable from an opposing party in a civil action. The plaintiff-employee, Donna Yeager, appeals from the trial court's judgment granting the motion of the intervening plaintiff-employer, Priority Care, Inc. (Priority Care), for apportionment and ordering that $170,000 be paid to Priority Care and $30,000 remain in escrow for future determination of appellate legal fees. ¹ On appeal, the plaintiff claims that the court erred by failing to deduct from the amount available for apportionment to Priority Care all her reasonable and necessary expenditures incurred in effecting recovery pursuant to § 31–293(a). We reverse the judgment of the trial court and remand the matter for further proceedings.

The court found the following facts in its memorandum of decision issued July 19, 2010. “This action arises out of a motor vehicle accident that occurred in Waterbury ... on September 7, 2006, wherein the plaintiff, Donna Yeager, while in the course of her employment was struck from behind by an automobile operated by one defendant, Maria Alvarez. On May 2, 2007, the plaintiff's employer Priority Care ... moved to intervene because it had become obligated to make certain payments to and on behalf of the plaintiff in accordance with the workers' compensation laws of Connecticut. This motion was granted on May [14], 2007, by Agati, J. On June 4, 2009, after a trial to a jury ... the plaintiff was awarded $396,242 in economic damages and $983,998 in noneconomic damages for a total award of $1,380,240. Thereafter, the defendants' insurance company tendered $300,000—the full amount of the [defendants'] insurance policy. By agreement of [Priority Care's] counsel and counsel for the plaintiff, the plaintiff's attorney was allowed to take the sum of $100,000 as a legal fee, leaving the remaining $200,000 in escrow.

“[Priority Care had] ... filed a motion for apportionment on August [13], 2008, and now seeks payment of all the remaining funds pursuant to ... § 31–293, part of the Workers' Compensation Act. On March 23, 2010, counsel for the plaintiff filed a memorandum in opposition to this motion. The court held a hearing on this matter on March 25, 2010. At this hearing, [Priority Care] notified the court that as of March 25, 2010, it had paid the sum of $235,179.97, consisting of $119,142.23 in medical payments and $116,037.74 in compensation benefits. In addition, the plaintiff has a check for $19,166.66 for costs pursuant to the court's original ruling on the bill of costs and the plaintiff's motion for review of the order of taxation.² On April 9, 2010, the plaintiff filed an affidavit of her attorney, Michael D'Amico, with thirty-five exhibits to support her request for additional attorney's fees and costs. On May 7, 2010, [Priority Care] filed a response to the plaintiff's March 23, 2010 memorandum and an objection to the affidavit filed by the plaintiff. The plaintiff filed a reply to [Priority Care's] memorandum on May [19], 2010.”

The court concluded, inter alia, that “the plaintiff has improperly raised issues of additional costs at a hearing for a motion for apportionment.” It cited Practice Book § 18–5, which provides in relevant part: “(a) Except as otherwise provided in this section, costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed .... (b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk....” The court held that “the plaintiff's costs are incorrectly before the court” because (1) “no formal motion to review the costs taxed is before the court”; (2) “the plaintiff has already had one opportunity to move the court to approve her bill of costs and most of these expenses were not raised at that time”; ³ and (3) “ Practice Book § 18–5 requires a motion to review to be brought within twenty days of a ruling,” which motion was not brought by the plaintiff, or alternatively, “[e]ven if the court treated the plaintiff's argument as its own motion,” it was not timely. Applying the language of § 31–293(a), the court held that Priority Care was entitled to the remaining $200,000 in satisfaction of the $235,179.97 lien. It also ordered that $30,000 remain in escrow for reasonable appellate attorney's fees.

Subsequently, the plaintiff filed a motion to reargue the court's decision, and Priority Care filed motions for payment,⁴ for reargument and reconsideration of the order of escrow of $30,000 and for articulation and/or clarification. The court granted Priority Care's motion for payment and denied both parties' motions for reargument and reconsideration as well as Priority Care's motion for articulation and/or clarification. The plaintiff thereafter filed the present appeal from the order granting the motion for apportionment, and Priority Care filed a cross appeal, which was dismissed for lack of a final judgment because the amount of attorney's fees had not yet been determined.⁵

The plaintiff argues that the court erred by failing to deduct her reasonable and necessary expenditures incurred in effecting recovery against the defendants pursuant to § 31–293(a) prior to apportioning the damages to Priority Care. Specifically, she argues that the “reasonable and necessary” expenditures recoverable under § 31–293(a) are different from the enumerated fees and costs recoverable by a party in a civil action pursuant to General Statutes § 52–257. At oral argument before this court, the plaintiff asserted that if she were to prevail, the proper remedy is a remand to the court for a hearing to determine which, if any, of her claimed expenditures are reasonable and necessary pursuant to § 31–293(a). We agree with the plaintiff.

Because this issue involves examining § 31–293(a) and a rule of practice, it presents an issue of interpretive construction over which we exercise plenary review. See Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011); see also Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010) (“[t]he interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation” [internal quotation marks omitted] ). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.... In seeking to determine [the] meaning [of a statute] ... [we] ... first ... consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010).

We begin, therefore, with the language of § 31–293(a). Section 31–293(a) is part of the Workers' Compensation Act; General Statutes § 31–275 et seq.; and provides in relevant part: “If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys' fees, incurred by the employee in effecting the recovery.... If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee....”

The language of the statute and its relationship to Practice Book § 18–5 are clear. Section 31–293(a) provides in relevant part that an employer that pays workers' compensation benefits to an injured employee is entitled to reimbursement for those payments “ after the deduction of reasonable and necessary expenditures, including attorneys' fees, incurred by the employee in effecting the recovery.... ” (Emphasis added.) The court concluded that, because the plaintiff did not list in her bill of costs payable by the defendants the additional expenses she sought to have deducted from the damages apportionment pursuant to § 31–293(a), she could not properly request such expenses at a hearing for a motion for apportionment.

The language of §...