based on the text of this case I am going to send you, can you help me understand If a plaintiff has medical expenses and treatment paid through his group health insurance, can a defendant offset the cost of that treatment from their underinsured motorist liability? What role does ERISA play?


MEMORANDUM OF DECISION ON POST-VERDICT MOTIONS

On December 19, 2017, after trial in this underinsured motorist accident matter, the jury rendered a verdict in favor of the plaintiff, Martin Godbout, and against the defendants, the Metropolitan District Commission (MDC) and Twin City Fire Insurance Company (Twin City). The defendants filed a post-verdict motion for reductions of the verdict related to a previous settlement and for collateral source payments (#184). The plaintiff filed a motion for interest and for attorneys fees (#147). The defendants also filed an objection (#189) to the plaintiff's bill of costs (#186).

The court held a hearing concerning the motions and the objection on March 15, 2018, after which the parties filed post-hearing briefs, dated March 29, 2018. After consideration, the court issues this memorandum of decision.



I

Background
The MDC and Twin City move for a collateral source reduction from a jury's award of $447,875.07 for the plaintiff. The defendants also move for a $100,000 deduction from the award due to a prior settlement that the plaintiff received from the underinsured tortfeasor, Theodore Montouri.



Stipulations of [*2]  the Parties
The parties stipulated that: (1) the total amount that was paid or adjusted/written off by Blue Cross Blue Shield (BCBS), the plaintiff's healthcare provider, was $144,388.20; (2) the total amount that was adjusted/written off by workers' compensation in relation to the plaintiff's medical expenses that the jury awarded was $10,889.75; and (3) The plaintiff received a settlement of $100,000 from Theodore Montouri. Defendant's Exhibit A, entitled "Administrative Services Agreement," was the agreement between Blue Cross Blue Shield and the defendants.



Defendants' Arguments
The defendants argue that the full amount of the medical costs that BCBS either paid or wrote off pursuant to the benefit plan qualify as collateral sources that should be deducted from the jury's verdict. They contend that the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1001 et seq., does not apply to the plaintiff's plan through MDC because the MDC plan is a governmental one, and is therefore exempt from ERISA. Since ERISA does not apply, it does not preempt Connecticut's anti-subrogation law. As a result, MDC has no subrogation rights, and the full amount of the medical costs it paid or wrote off are collateral [*3]  sources. The plaintiff should then receive an offset from this figure for the employee contributions to the costs of the plaintiff's benefit plan for the dates for which the jury awarded medical costs.

The defendants also argue that the amounts written off by workers' compensation are collateral sources that should be deducted from the jury's verdict. Finally, the defendants argue that the jury's verdict should be reduced by $100,000 to reflect the amount that the plaintiff received from the prior settlement.



Plaintiff's Arguments
In response, the plaintiff argues that the plaintiff's health plan is covered by ERISA, and, since ERISA gives the defendants subrogation rights, they are not entitled to deduct the amount that they paid or wrote off pursuant to the health plan because General Statutes §52-225a(c) provides that there is no collateral source reduction for payments for which a right of subrogation exists.

Also, the plaintiff argues that, should the court find that the BCBS plan is not a plan with the right of subrogation, he should receive an offset for the total medical benefit cost for the period during which the plaintiff underwent treatment. Finally, the plaintiff argues that the amount written off by [*4]  workers' compensation should not be treated as a collateral source because workers' compensation write-offs are made pursuant to a statutory requirement rather than from an insurance plan or contractual agreement.



II

Discussion

A

Amount of the Collateral Source Reduction
"In a personal injury action, General Statutes §52-225a authorizes the trial court to reduce the plaintiff's economic damages award by an amount equal to the sum of collateral source payments received by the plaintiff, less any amount paid by or on behalf of the plaintiff to secure those payments." (Footnote omitted.) Jones v. Kramer, 267 Conn. 336, 338-39, 838 A.2d 170 (2004). "Thus, under §52-225a(a), calculation of the collateral source reduction is a two-part process: (1) the total amount of collateral source benefits a claimant has received is determined in accordance with §52-225a(b); and (2) that amount is then decreased, pursuant to §52-225a(c), by the total amount that has been paid, contributed, or forfeited . . . by, or on behalf of, the claimant or members of his immediate family to secure those benefits." (Internal quotation marks omitted.) Alvarado v. Black, 248 Conn. 409, 413, 728 A.2d 500 (1999).

Thus, the calculation of the collateral source reduction that the defendants are entitled to is a two-part process. First, the court must determine the total amount of collateral source [*5]  benefits that the plaintiff has received in accordance with §52-225a(b). Here, the parties stipulated that a total of $144,388.20 was paid or written-off pursuant to the plaintiff's BCBS plan. Since any amount written-off was done so pursuant to contract, all of this sum qualifies as a collateral source for purposes of the first part of this calculation.1

The next step in the calculation is to determine the total amount paid by the plaintiff to secure those benefits. The plaintiff is "entitled to a credit for premiums paid to secure his right to collateral source benefits starting with the initial date of the insurance policy period during which the injury occurred." Brennan v. Burger King Corp., 46 Conn.App. 76, 83, 698 A.2d 364 (1997), aff'd 244 Conn. 204, 707 A.2d 30 (1998). The plaintiff is entitled to off-set the collateral source reduction with the premiums paid for all the years in which he received the collateral source benefits, as established by the years in which the jury awarded medical damages. See Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 9, 848 A.2d 373 (2004); Hertz v. Nicotra, Superior Court, judicial district of New London at Norwich, Docket No. 114764 (May 26, 1999, Mihalakos, J.) (24 Conn. L. Rptr. 594, 595, 1999 Conn. Super. LEXIS 1396, *5); Mancini v. Ansonia Derby Water Co., Superior Court, judicial district of New Haven, Docket No. CV-90-0300095 (June 29, 1995, Hodgson, J.) (14 Conn. L. Rptr. 433, 1995 Conn. Super. LEXIS 1947) ("It is the very nature of insurance and other benefit programs that enrollment prior to a covered claim gives rise to [*6]  the entitlement to receive benefits. Accordingly, amounts paid to maintain coverage over a period of time can be fairly said to have been paid to secure [the claimant's] right to any collateral source benefit which [he] has received as a result of such injury within the meaning of subsection (c) of §52-225a." (Emphasis in original; internal quotation marks omitted.) Id., 434, 1995 Conn. Super. LEXIS 1947, *5-6.

Here, the jury awarded medical expenses for services provided during the years 2011 to 2014. The plaintiff, therefore, is allowed to off-set the collateral source reduction by the contributions that the plaintiff paid for those four years. The parties' exhibits reflect that the total amount for the period is $10,136.00. See #190 (Exhibit 2); #192 (Exhibit 2).



B

Whether Workers' Compensation Write-Offs Qualify as Collateral Sources
"The language used by the legislature to define collateral sources is clear. Included are two types of collateral sources. The first is payments made pursuant to health insurance, automobile insurance or other similar insurance. The second is payments made pursuant to a contract or agreement. Workers' compensation payments are not made pursuant to insurance or agreement. Workers' compensation payments are made pursuant [*7]  to statutory requirement, as set forth in the Workers' Compensation Act. General Statutes §§31-275 et seq. Clearly, payments required to be made under the Workers' Compensation Act do not fall within the express language used by the legislature to define collateral sources." (Internal quotation marks omitted.) Smith v. Otis Elevator Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0275369 (February 28, 1994, Vertefeuille, J.) (11 Conn. L. Rptr. 164, 165, 1994 Conn. Super. LEXIS 522, *3-4) (citing General Statutes §52-225b2). See Louis v. Houndris, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6016695-S, 2015 Conn. Super. LEXIS 75 (January 12, 2015, Karazin, J.T.R.) ("Because Workers' Compensation payments are made pursuant to statutory requirement, as set forth in the Workers' Compensation Act, Connecticut General Statutes §31-275 et seq., payments made under the Workers' Compensation Act do not fall within the express language used by the legislature to define collateral sources").

General Statutes §52-225b defines collateral sources as payments made pursuant to health insurance, automobile insurance or other similar insurance and payments made pursuant to a contract or agreement. Workers' compensation payments are made pursuant to a statutory requirement, not pursuant to insurance, contract or agreement. Under §52-225b's express statutory language, payments made due to workers' compensation [*8]  are thus not considered collateral sources. The defendants, therefore, are not entitled to include the $10,889.75 written off by workers' compensation as a collateral source.



C

Deduction of Prior Settlement Payment
"This case involves an attempt by the plaintiff to recover underinsured motorist benefits from the defendant. General Statutes §38a-336(b) requires that an insurer pay its insured up to the limits of the policy's [underinsured] motorist coverage after the liability limits of all other applicable insurance policies have been exhausted by payment of judgments or settlements. This statutory subsection, together with the other provisions of the [underinsured] motorist statute, §38a-336,3 reflects the public policy of this state to afford a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the [underinsured] motorist had maintained an adequate policy of liability insurance." (Internal quotation marks omitted.) Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 309, 714 A.2d 686 (1998). "The purpose of underinsured motorist coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile . . . It has also [*9]  been stated that the purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 309. "[U]nderinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor . . ." (Internal quotation marks omitted.) Id., 309-10. See Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993) ("It is a time-honored rule that an injured party is entitled to full recovery only once for the harm suffered . . . An insured may not recover double payment of damages under overlapping insurance coverage" (citation omitted)).

As stated above, underinsured motorist coverage is intended to place the insured in the same position as, but in no better position than the insured would have been in had the tortfeasor been adequately insured. Here, the tortfeasor settled with the plaintiff for $100,000, the full extent of his insurance coverage. The defendants are entitled to deduct this $100,000 settlement from the amount of the verdict that the jury rendered against them. Holding that the defendants could not deduct [*10]  this sum would allow the plaintiff to recover a double payment of damages under overlapping insurance coverage and would place him in a better position than he would have been in had the tortfeasor maintained adequate insurance coverage. See Buell v. American Universal Ins., supra, 224 Conn. 775; Fahey v. Safeco Ins. Co. of America, supra, 49 Conn.App. 309.

Accordingly the jury's verdict should be reduced for collateral source reductions by the stipulated sum of $144,388.20, offset by the amount paid by the plaintiff or the MDC for the plaintiff's health insurance, $10,136.20, for a total collateral source reduction of $134,252.00. It should also be reduced by the $100,000.00 settlement he received from the tortfeasor. As a result, the jury's verdict of $447,875.07 is reduced by the total amount of $234,252.00, for a resulting amount of $213,623.07.



D

Interest
The original complaint was filed on November 8, 2013. The plaintiff filed an Offer of Compromise on February 25, 2015 (#122), offering to settle his claims against the defendants for the sum of $150,000.00. As stated above, the verdict in favor of the plaintiff exceeded that amount.

In accordance with General Statutes Sec. 52-192a(c), eight per cent annual interest is added to the amount of the verdict, computed from the date of filing of the complaint until ninety days after [*11]  the date of the verdict.

Judgment may enter for the plaintiff and against the defendants in accordance with the jury's verdict, as adjusted, $213,623.07, plus interest at the statutory amount ($46.82 per day), in the amount of $74,631.08, computed through March 19, 2018, ninety days after the date of the jury's verdict, December 19, 2017, for a total of $288,254.15. See Oram v. deCholnoky, Superior Court, judicial district of Stamford-Norwalk, Docket No. X05 CV 05 4005513 (January 16, 2009, Adams, J.) (47 Conn. L. Rptr. 105, 2009 Conn. Super. LEXIS 225).

Pursuant to General Statutes Sec. 52-192a(c), the plaintiff is also awarded reasonable attorneys fees in the amount of $350.00.

Pursuant to General Statutes §37-3b, post-judgment interest on the verdict, at the rate of ten per cent (10%) per year, is also awarded, commencing March 20, 2018. See Oram v. deCholnoky, supra, Superior Court, Docket No. X05 CV 05 4005513, 2009 Conn. Super. LEXIS 225. This accrues at the rate of $58.53 per day. Through the date of this decision, this amounts to $4,155.63.



E

Costs
In their objection to the plaintiff's bill of costs, the defendants objected to items number 4, 8, and 9, which the court addresses below.

Item No. 4 is a request for an award of $200.00 for a difficult and/or extraordinary case. The court agrees that the issues presented in this underinsured motorist matter were not difficult [*12]  and/or extraordinary. Accordingly, the court declines to award this sum.

In Item No. 8, pursuant to General Statutes §52-260, the plaintiff seeks an expert witness fee for the services of Dr. Bruce Chozick, a treating neurosurgeon who testified at the second day of the trial for part of the afternoon. The plaintiff presented an unitemized bill for $8,000.00, which states that it was an "Invoice for [trial] to be held on December 14, 2017." Dr. Chozick testified that that was his fee for testifying and that if he were not in court he would have been doing surgery or seeing patients. The defendants argue that the amount sought is unreasonable and should be reduced.

General Statutes 52-260(f)4 provides for awards of costs. See Smith v. Andrews, 289 Conn. 61, 86-88, 959 A.2d 597 (2008); Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 263, 943 A.2d 430 (2008). Clearly, Dr. Chozick testified as a practitioner of the healing arts and a reasonable fee may be awarded as part of costs. See General Statutes §52-260(f).

"It is clear that the language of §52-260(f) neither authorizes a reasonable fee for an expert's trial preparation time as distinguished from his or her incourt trial testimony, nor expressly authorizes costs for an expert's travel, transportation and hotel costs." Smith v. Andrews, supra, 289 Conn. 87.

The determination of what is a reasonable fee involves the exercise of discretion. In Flis v. Connecticut Gastroenterology Consultants, P.C., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02 0469142 (July 13, 2007, Corradino, J.) (43 Conn. L. Rptr. 774, 2007 Conn. Super. LEXIS 1864), [*13]  the court, following Fisher-Price, Inc. v. Safety First, Inc., 217 F.R.D. 329, 333 (D.Del. 2003), listed the factors which should be taken into account: "(1) witness's area of expertise; (2) expert's training and education; (3) prevailing rates of other comparably respected available experts; (4) complexity of the discovery responses provided; (5) fee actually charged to party who retained the expert; (6) fees traditionally charged by experts on related matters; (7) other relevant factors." "[U]ltimately it is a matter of judicial discretion to set what [the court] concludes is a reasonable amount." (Internal quotation marks omitted.) Id.

As the court noted in Flis, the record does not necessarily provide the court with information as to each factor. For example, there, as to factor 3, "nowhere in their objection . . . do the defendants indicate the usual hourly rates generally and usually charged by their experts or, apart from the reference to what the plaintiff's expert charged, what other similarly qualified experts charge for this type of service or similar services." Flis v. Connecticut Gastroenterology Consultants, P.C., supra, Superior Court, Docket No. CV 02 0469142, 2007 Conn. Super. LEXIS 1864.

The same is true here. The court heard Dr. Chozick's [*14]  testimony at trial. Based on his evident expertise in an area of complexity, requiring significant technical knowledge, and based on its familiarity with rates charged by other medical expert witnesses, the court concludes that the effective rate charged for part of an afternoon of testimony is not reasonable. Accordingly, costs for his services are awarded in the total amount of $3,000.00.

In Item No. 9, the plaintiff seeks $697.66 in costs, based on a bill for audio/visual services from VIP Studios. General Statutes §52-257(b)(5) provides for an award of fees "for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum[.]" The audio/visual services here consisted of renting screen and projection equipment used at trial. These services are not within the parameters of the cited statute and, accordingly, are not awarded.

The plaintiff requested a total of $9,630.26 for costs. In view of the above reductions, that amount is reduced by $5,897.66 to $3,732.60.



CONCLUSION
For the reasons stated above, judgment may enter for the plaintiff and against the defendants: in the amount of $292,409.78 ($288,254.15 plus $4,155.63). Postjudgment interest is awarded at [*15]  the rate of ten per cent per year ($58.53 per day).

Attorneys fees in the amount of $350.00 are awarded to the plaintiff, as are costs in the amount of $3,732.60. It is so ordered.


Godbout v. Hartford Ins. Group, Docket No. HHDCV136046630S, 2018 Conn. Super. LEXIS 1044, at *1 (Super. May 30, 2018)