Tomick v. United Parcel Service, Inc., Not Reported in A.

3d (2013)

2013 WL 3970227 Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Connecticut, Judicial District of New London. Michael TOMICK v. UNITED PARCEL SERVICE, INC. No. CV064008944. Attorneys and Law Firms Brown Jacobson P.C., Norwich, for Michael Tomick. Murtha Cullina LLP, Hartford, for United Parcel Service, Inc. Opinion COSGROVE, J. *1 Pursuant to General Statutes 373a and 373b, the plaintiff, Michael Tomick, is moving for postjudgment interest on the damages awarded by the jury to the plaintiff for negligent infliction of emotional distress and pursuant to General Statutes 3151x. 1 The defendants, United Parcel Service, Inc., and Kevin Trudelle, object to the motion for postjudgment interest on the grounds the plaintiff should be denied interest under 373a because the plaintiff never made a demand for the interest during the appeal period and the defendant did not wrongfully detain the payment, and they argue that under 373b it is within the court's discretion to award less than 10 percent interest. On July 9, 2010, the jury returned a verdict for the plaintiff. The jury awarded the plaintiff damages in the amount of $250,000 against United Parcel Service, Inc., and $50,000 against Trudelle for negligent infliction of emotional distress for a total of $300,000. The jury awarded the plaintiff damages in the amount of $100,000 against United Parcel Service, Inc., for violation of 3151x. The jury also awarded the plaintiff damages in the amount of $100,000 against United Parcel Service, Inc., for disability discrimination. The trial court entered judgment on October 28, 2010. The defendants appealed the trial court's judgment on November 17, 2010. The plaintiff filed a cross appeal. The Appellate | July 16, 2013.

Court issued its decision on the appeal on May 22, 2012. The Appellate Court affirmed the judgment with respect to plaintiff's negligent infliction of emotional distress and violation of 3151x claims. The plaintiff and the defendants sought certification to the Supreme Court, which was denied on July 3, 2012. The defendants tendered payment in the amount of $433,333.33 on September 13, 2012. On October 24, 2012, the plaintiff filed his motion for postjudgment interest presently before the court. The defendants filed their objection and memorandum of law in opposition on November 6, 2012. The plaintiff filed a reply on March 22, 2013. The court heard oral argument on the motion on April 1, 2013.

DISCUSSION A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. (Internal quotation marks omitted.) Bower v. D'Onfro, 45 Conn.App. 543, 550, 696 A.2d 1285 (1997). The defendants argue that the court lacks jurisdiction over the plaintiff's motion for postjudgment interest because the judgment at issue has been satisfied by the defendants' tendering payment. By tendering the undisputed portion of the damages following appeal, the defendants established the end date of the postjudgment interest period, rather than deprived this court of jurisdiction. With regard to the plaintiff's motion for postjudgment interest on the negligent infliction of emotional distress claims, the plaintiff argues that he is entitled to 10 percent interest because 373b is mandatory. The defendants counter that if the court is to award interest pursuant to 373b, the 10 percent rate is the maximum interest rate that may be awarded but it is not mandatory. The defendants also argue that the plaintiff has not met his burden to establish that the defendants' withholding was wrongful. *2 Section 373b provides: (a) For a cause of action arising on or after May 27, 1997, interest at the rate of ten per cent a year, and no more, shall be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by the negligence, computed from the date that is twenty days after the date of judgment or the date that is ninety days after the date of verdict, whichever is earlier, upon the amount of judgment.

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Tomick v. United Parcel Service, Inc., Not Reported in A.3d (2013)

(b) If any plaintiff in such action files a postverdict or postjudgment motion or an appeal, the recovery of interest by such plaintiff shall be tolled and interest shall not be added to the judgment for the period that such postverdict or postjudgment motion or appeal is pending before the court. The provisions of this subsection shall not apply if the reason for the filing of a postverdict or postjudgment motion or appeal by the plaintiff is to reply to or answer a motion or appeal filed by the defendant. In a negligence action arising after May 27, 1997, the postjudgment interest rate must be set at 10 percent pursuant to the mandatory statutory language. General Statutes 373b; see also Carrano v. YaleNew Haven Hospital, 112 Conn.App. 767, 771 n. 4, 963 A.2d 1117 (2009) (When the legislature enacted 2 of Public Acts 1997, No. 9758, it made the recovery of interest mandatory rather than discretionary for causes of action arising on or after May 27, 1997). The plaintiff was awarded $300,000 in damages for negligent infliction of emotional distress against the defendants. Ninety days from the date of the jury's verdict was October 8, 2010. Twenty days from the date of the court's judgment was November 16, 2010. Pursuant to statute the court will use the earlier date of October 8, 2010 as the date that postjudgment interest began to accrue. The defendant paid the undisputed portion of the judgment on September 13, 2012. Postjudgment interest ran from October 8, 2010, to September 12, 2012. This period is one year and 345 days. Postjudgment interest at 10 percent per year on the $300,000 award of damages is $30,000 per year, with a rate of $82.19 per day. Therefore, the total amount of postjudgment interest due on this negligence claim is $58,355.55. With regard to the plaintiff's motion for postjudgment interest on 3151x, the plaintiff argues that courts routinely award 10 percent postjudgment interest, which is within their discretion. The defendants argue that 10 percent is not routinely awarded and that if the court is to award interest it should be reduced to an equitable rate similar to the prevailing market rates. Section 373a(a) provides in relevant part: Except as provided in sections 373b, 373c and 52192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable ... The court's determination regarding the award of interest should be made in view of the demands of justice rather

than through the application of any arbitrary rule ... Whether interest may be awarded depends on whether the money involved is payable ... and whether the detention of the money is or is not wrongful under the circumstances. (Internal quotation marks omitted.) Bower v.. D'Onfro, supra, 45 Conn.App. 551. Although the trial court must determine that the liable party's detention of money was wrongful in order to award interest pursuant to 373a, neither [the Supreme Court] nor the Appellate Court has held, for the purposes of the statute, that the detention of the money cannot be wrongful if the liable party had a good faith basis for nonpayment. Sosin v. Sosin, 300 Conn. 205, 229, 14 A.3d 307 (2011). [I]n the context of the statute, wrongful is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so ... [This is] consistent with the primary purpose of 373a, which is not to punish persons who have detained money owed to others in bad faith but, rather, to compensate parties that have been deprived of the use of their money. (Internal quotation marks omitted.) Salce v. Wolczek, 141 Conn.App. 528, 538, 61 A.3d 1177 (2013). *3 The plaintiff was awarded $100,000 in damages for the claim pursuant to 3151x as well as attorneys fees for a total of $133,333.33. The defendants appealed the jury's verdict, but the Appellate Court upheld the jury's verdict on this claim. The jury found the amount due to the plaintiff in damages was $100,000, plus the court's award of attorneys fees, and the money was due from the date of the court's judgment. Therefore, the defendants wrongfully withheld the sum in question. This statutory claim is neither a negligence nor a personal injury claim, therefore, 373a will apply. Based on the circumstances of this case, the court is awarding postjudgment interest in the amount of 3 percent per year. The postjudgment interest ran from the date of judgment, October 28, 2010, until September 12, 2013. See, e.g., Bower v. D'Onfro, supra, 45 Conn.App. 551 ([U]pon determining that interest was appropriate ... the court had no discretion but to start its accrual from any time other than the date of judgment. [Internal quotation marks omitted] ). The postjudgment interest period is one year and 320 days. Therefore, the total amount of postjudgment interest due on this claim is $7,507.20.

CONCLUSION

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Tomick v. United Parcel Service, Inc., Not Reported in A.3d (2013)

Based on the foregoing reasons, the plaintiff is awarded a total $66,862.75 in postjudgment interest.

Footnotes

In light of the Appellate Court's remand on the disability discrimination count, the plaintiff is not seeking postjudgment interest on that award at this time. The plaintiff indicated in his brief that he was reserving the right to do so in the future.

End of Document

2013 Thomson Reuters. No claim to original U.S. Government Works.

2013 Thomson Reuters. No claim to original U.S. Government Works.