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RONALD G. CAVERLY, ADMINISTRATOR (ESTATE
OF JAMES B. CAVERLY) v. STATE
OF CONNECTICUT
(SC 20577)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to statute ((Rev. to 2017) § 4-160b (a)), ‘‘[t]he Office of the Claims
Commissioner shall not accept or pay any subrogated claim or any claim
directly or indirectly paid by or assigned to a third party.’’
The plaintiff, the administrator of the estate of the decedent, J, sought to
recover damages from the state for the allegedly wrongful death of J,
who died while under the medical care of certain of the state’s employees
at a state university hospital. The plaintiff had filed a notice of claim
with the claims commissioner, seeking permission to bring a medical
malpractice action against the state for the alleged negligence of those
state employees in prescribing certain medications to J, which allegedly
resulted in J’s death. Before the plaintiff received a decision from the
claims commissioner, however, he filed a separate negligence action
against the pharmacy that had filled J’s prescriptions, C Co., and certain
of C Co.’s corporate affiliates. Thereafter, the plaintiff received authorization from the claims commissioner and commenced the present action.
Subsequently, the plaintiff’s action against C Co. was settled for $2
million. The state then moved to dismiss the present action for lack of
subject matter jurisdiction on the ground of sovereign immunity, claiming that, in light of the settlement with C Co., the medical malpractice
claim against the state had been ‘‘indirectly paid by . . . a third party’’
within the meaning of § 4-160b (a). The trial court denied the state’s
motion to dismiss, concluding that § 4-160b (a) applies only to subrogated or assigned claims and not to payments made by joint tortfeasors.
On appeal from the trial court’s denial of the state’s motion to dismiss,
held that the trial court correctly determined that the plaintiff’s medical
malpractice claim against the state was not ‘‘indirectly paid by . . . a
third party’’ within the meaning of § 4-160b (a) by virtue of the plaintiff’s
settlement with C Co., and, accordingly, this court upheld the trial court’s
denial of the state’s motion to dismiss: the plaintiff’s medical malpractice
claim against the state was not paid indirectly by a third party when C
Co. paid the plaintiff $2 million to settle the plaintiff’s action against C
Co., as this court previously had concluded that the term ‘‘claim,’’ which
is defined in relevant part by statute (§ 4-141 (1)) as ‘‘a petition for the
payment or refund of money by the state,’’ must be read to refer to
claims for monetary damages against the state, the negligence action
against C Co. was not a ‘‘claim,’’ as defined by § 4-141 (1), because it
was an attempt to recover monetary damages from a private corporation
for its own independent acts of alleged negligence in causing J’s death
instead of a request for monetary damages from the state, and the
settlement proceeds the plaintiff received in the plaintiff’s action against
C Co. constituted a direct payment to the plaintiff in satisfaction of the
plaintiff’s separate and distinct claim for monetary damages against C
Co.; moreover, the common-law prohibition against double recovery,
which precludes a plaintiff from recovering twice for a single loss, did
not bar the plaintiff’s claim against the state, as the amount of the
plaintiff’s loss had not been adjudicated on the merits, a judgment in
damages had not been rendered in favor of the plaintiff, and no such
judgment had been paid in full; furthermore, a plaintiff’s settlement with
one tortfeasor does not necessarily represent the plaintiff’s fair, just
and reasonable damages or constitute full compensation for the entire
amount of his loss, and, to the extent the state believed that the plaintiff
had been fully compensated for J’s death in light of the settlement
with C Co., the state could file a notice of apportionment or introduce
evidence of that settlement in a trial to the court.
Argued October 18, 2021—officially released February 9, 2022*
Procedural History
Action to recover damages for the defendant’s alleged
negligence, brought to the Superior Court in the judicial
district of Hartford, where the court, Noble, J., denied
the defendant’s motion to dismiss, and the defendant
appealed. Affirmed.
Michael G. Rigg, with whom, on the brief, was Robert
D. Silva, for the appellant (defendant).
Marc J. Ubaldi, with whom, on the brief, were Leslie
Gold McPadden and Adele R. Jacobs, for the appellee
(plaintiff).
Opinion
ECKER, J. The decedent, James B. Caverly, died
while under the medical care of the employees of the
John Dempsey Hospital at the University of Connecticut
Health Center. The plaintiff, Ronald G. Caverly, administrator of the decedent’s estate, subsequently received
authorization from the Office of the Claims Commissioner to file a medical malpractice action against the
defendant, the state of Connecticut, doing business as
UCONN Health Center/John Dempsey Hospital, pursuant to General Statutes (Rev. to 2017) § 4-160 (b).1 The
plaintiff filed the present medical malpractice action,
which the state moved to dismiss on the basis of sovereign immunity. The state argued that, because the plaintiff had received a settlement payment from a joint
tortfeasor2 in connection with the decedent’s death, the
plaintiff’s action was barred by General Statutes § 4-
160b (a), which provides that ‘‘[t]he Office of the Claims
Commissioner shall not accept or pay any subrogated
claim or any claim directly or indirectly paid by or
assigned to a third party.’’ The trial court denied the
state’s motion to dismiss on the ground that § 4-160b
(a) applies only to subrogated or assigned claims and
not to payments made by joint tortfeasors. We affirm
the trial court’s denial of the state’s motion to dismiss.
The operative complaint alleges the following relevant facts.3 On December 5, 2016, the doctors and/or
nurses at John Dempsey Hospital prescribed warfarin,
an anticoagulant medication, to the decedent. The prescription was filled at a CVS Pharmacy in Mansfield.
According to the instructions printed on the prescription label, the decedent was directed to ‘‘take four and
one-half 3 milligram tablets on Monday and Thursday
and three 3 milligram tablets on the other days of the
week.’’ On December 8, 2016, the decedent was seen
at the anticoagulation clinic at John Dempsey Hospital,
at which time ‘‘he was directed to take the warfarin 3
milligram, four days per week, and the warfarin [4.5]
milligram three days per week.’’
On December 16, 2016, the decedent returned to the
anticoagulation clinic, complaining of ‘‘bruising and
swelling on his arm and elbow, indicative of recent
bleeding.’’ The decedent’s international normalized
ratio (INR)4 was tested, ‘‘which revealed that his INR
was greater than 8, with normal limits considered to
be between 2 and 3.’’ The decedent underwent a second
blood test to ascertain a more specific INR value. ‘‘The
[second] blood test documented an INR result that was
dangerously high at 14.1. . . . As a result of the dangerously high INR level, the . . . decedent was instructed
to [stop taking] the warfarin and to return to the anticoagulation clinic on December 19, 2016, for a repeat INR
test, and to go to the emergency room if any bleeding
event occurred.’’ Additionally, the decedent was prescribed one 5 milligram dose of vitamin K. Two days
later, after taking the vitamin K, the decedent ‘‘was
taken emergently to Hartford Hospital,’’ where he ‘‘died
from hemorrhagic complications of Coumadin/warfarin
administration from his blood being too thin.’’
On December 14, 2017, the plaintiff filed a notice
of claim with the claims commissioner, alleging that
‘‘employees of the state of Connecticut employed by the
John Dempsey Hospital at the University of Connecticut
Health Center deviated from the standard of care . . .
while [the decedent] was a patient [at] the hospital,’’
resulting ‘‘in the decedent experiencing a hemorrhage
that caused his death.’’ Attached to the plaintiff’s notice
of claim was ‘‘a certificate of good faith and an opinion
letter in accordance with [General Statutes] § 52-190a.’’
The claims commissioner granted the plaintiff ‘‘permission to sue the state of Connecticut for damages of up
to $5 million for acts of alleged medical negligence’’ in
accordance with § 4-160 (b). The plaintiff thereafter
filed the present medical malpractice action against
the state.
Meanwhile, in March, 2019, prior to receiving a decision from the claims commissioner, the plaintiff had
filed an action in the Superior Court against CVS Pharmacy and certain of its corporate affiliates (collectively,
CVS Pharmacy), alleging that CVS Pharmacy’s negligence in filling the decedent’s warfarin and vitamin K
prescriptions caused the decedent’s death. See Caverly
v. CVS Health Corp., Superior Court, judicial district
of Rockville, Docket No. TTD-CV19-6017238-S (March
22, 2019) (CVS action). The CVS action, which was
removed to federal court, settled in January, 2020, for
$2 million.
On June 30, 2020, the state moved to dismiss the
present case for lack of subject matter jurisdiction,
arguing that the plaintiff’s receipt of the settlement
funds in the CVS action vitiated the claims commissioner’s grant of authorization allowing the plaintiff to sue
the state. Specifically, the state claimed that, in light
of the settlement, the plaintiff’s medical malpractice
claim against the state had been ‘‘indirectly paid by
. . . a third party’’ within the meaning of § 4-160b (a).
The plaintiff opposed the state’s motion to dismiss,
arguing that § 4-160b (a) was inapplicable to the present
case because the plaintiff’s medical malpractice claim
against the state had not been subrogated or assigned
to a third party and was separate and distinct from its
claim against CVS Pharmacy. Alternatively, the plaintiff
argued that the timing of the claims commissioner’s
authorization to sue the state was dispositive of the state’s
motion because ‘‘the claims commissioner granted permission to sue before the settlement was paid,’’ and,
therefore, ‘‘the claims commissioner accepted a claim
that was at the most payable, rather than paid,’’ under
§ 4-160b (a). (Emphasis in original.)
The trial court denied the state’s motion to dismiss.
The court found that the plain language of § 4-160b (a)
demonstrated ‘‘that the legislature meant simply to limit
its waiver of sovereign immunity by excluding from its
application subrogees and assignees of claims.’’ The
trial court observed that ‘‘[t]he statute is silent as to
any subsequent forfeiture or revocation of the claim
upon payment by a joint tortfeasor’’ and concluded that,
‘‘if the legislature intended to either require the absence
of joint tortfeasors before a claim is accepted, or to
withdraw a waiver of sovereign immunity upon the
payment of a common harm or injury by such joint
tortfeasor, it could have done so but did not.’’ Accordingly, the trial court concluded that the plaintiff’s medical malpractice action was not barred by the doctrine
of sovereign immunity. The state appealed from the
decision of the trial court to the Appellate Court, and
we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.5
It is well established that ‘‘[t]he doctrine of sovereign
immunity implicates subject matter jurisdiction and is
therefore a basis for granting a motion to dismiss. . . .
A determination regarding a trial court’s subject matter
jurisdiction is a question of law,’’ over which we exercise plenary review. (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313,
828 A.2d 549 (2003). More specifically, whether § 4-160b
(a) waives the state’s sovereign immunity with respect
to a claim for damages against the state when the plaintiff has received or will receive compensation for his
or her loss by way of a settlement with a joint tortfeasor
is a question of law subject to plenary review. See,
e.g., Graham v. Commissioner of Transportation,
330
Conn. 400, 416,
195 A.3d 664 (2018) (whether statute
operates as waiver of sovereign immunity is ‘‘a question
of statutory construction that constitutes a question of
law over which our review is plenary’’).
To ascertain the meaning of § 4-160b (a), we apply the
principles of statutory construction set forth in General
Statutes § 1-2z. See, e.g., Boisvert v. Gavis,
332 Conn.
115, 141–42,
210 A.3d 1 (2019). We are also guided by
the ‘‘principle that statutes in derogation of sovereign
immunity should be strictly construed. . . . [When]
there is any doubt about their meaning or intent they
are given the effect [that] makes the least rather than
the most change in sovereign immunity.’’ (Emphasis
omitted; internal quotation marks omitted.) Envirotest
Systems Corp. v. Commissioner of Motor Vehicles,
293
Conn. 382, 388,
978 A.2d 49 (2009).
Section 4-160b (a) provides that ‘‘[t]he Office of the
Claims Commissioner shall not accept or pay any subrogated claim or any claim directly or indirectly paid by
or assigned to a third party.’’ It is undisputed that the
plaintiff’s medical malpractice claim against the state
was not ‘‘subrogated’’ or ‘‘assigned to a third party.’’
Instead, the parties dispute whether the plaintiff’s medical malpractice claim against the state was indirectly
paid by a third party when CVS Pharmacy paid the
plaintiff $2 million to settle the CVS action.6
Chapter 53 of the General Statutes, entitled ‘‘Claims
Against the State,’’ defines the term ‘‘claim’’ as ‘‘a petition for the payment or refund of money by the state
or for permission to sue the state . . . .’’ (Emphasis
added.) General Statutes § 4-141 (1);7 see General Statutes § 4-141 (2) (defining ‘‘just claim’’ as ‘‘a claim which
in equity and justice the state should pay, provided the
state caused damage or injury or has received a benefit’’
(emphasis added)); see also General Statutes § 4-165
(a) (providing that ‘‘[a]ny person having a complaint
for’’ damage caused by state officer or employee ‘‘in
the discharge of his or her duties or within the scope
of his or her employment . . . shall present it as a
claim against the state under the provisions of this
chapter’’ (emphasis added)). As we explained in Bloom
v. Gershon,
271 Conn. 96,
856 A.2d 335 (2004), ‘‘chapter
53 pertains exclusively to claims for monetary damages
against the state, and, therefore, any reference to the
word ‘claim’ in chapter 53 must be read to refer to
claims for monetary damages’’ against the state.
Id.,
112. Thus, ‘‘§ 4-141 [1], which defines the word ‘claim’
as a petition ‘for permission to sue the state,’ as well
as a petition for the payment or refund of money by
the state, by virtue of pertaining to the provisions of
chapter 53, necessarily means a petition for permission
to sue the state for the payment or refund of money.’’
(Emphasis altered.) Id., 112–13.
The plaintiff’s negligence action against CVS Pharmacy was not a ‘‘claim,’’ as defined by § 4-141 (1),
because it was not a request for monetary damages
from the state. Instead, in the CVS action, the plaintiff
sought monetary damages from CVS Pharmacy, a private corporation, for its own independent acts of
alleged negligence in causing the decedent’s death.
Thus, the settlement proceeds that the plaintiff received
in the CVS action did not constitute an indirect payment
of the plaintiff’s claim for monetary damages against
the state but, rather, constituted a direct payment to
the plaintiff in satisfaction of the plaintiff’s claim for
monetary damages against CVS Pharmacy. Because the
plaintiff’s claims against CVS Pharmacy and the state
are separate and distinct, we conclude that the plaintiff’s medical malpractice claim in the present case was
not ‘‘indirectly paid by . . . a third party’’ within the
meaning of § 4-160b (a).
The state contends that the term ‘‘claim’’ in § 4-160b
(a) must be construed consistently with the common-law prohibition on double recovery, which precludes a
plaintiff from recovering twice for a single loss.8 We
agree with the state that the plaintiff may not recover
double damages for the death of the decedent under
‘‘the simple and time-honored maxim that [a] plaintiff
may be compensated only once for his just damages for
the same injury.’’ (Internal quotation marks omitted.)
Gionfriddo v. Gartenhaus Cafe,
211 Conn. 67, 71,
557
A.2d 540 (1989). We disagree, however, that our construction of § 4-160b (a) permits a double recovery.
As we recently explained in Meribear Productions,
Inc. v. Frank,
340 Conn. 711, A.3d (2021), ‘‘[p]laintiffs are not foreclosed from suing multiple defendants,
either jointly or separately, for injuries for which each
is liable, nor are they foreclosed from obtaining multiple
judgments against joint [or successive] tortfeasors.
. . . This rule is based on the sound policy that seeks
to ensure that parties will recover for their damages.
. . . The possible rendition of multiple judgments does
not, however, defeat the proposition that a litigant may
recover just damages only once. . . . Double recovery
is foreclosed by the rule that only one satisfaction may
be obtained for a loss that is the subject of two or more
judgments. . . . In general, a loss is satisfied when a
judgment . . . rendered in favor of the plaintiff in compensation for the loss has been paid in full.’’ (Citations
omitted; internal quotation marks omitted.)
Id., 749–50.
In the present case, the amount of the plaintiff’s loss has
not been adjudicated on the merits, a damages judgment
has not been rendered in favor of the plaintiff, and no
such judgment has been paid in full. Compare
id.,
751–52 (plaintiff’s action against coobligors was not
barred by double recovery rule because ‘‘[i]t is undisputed that the plaintiff’s loss was wholly unsatisfied
when the trial court rendered judgment’’), with Gionfriddo v. Gartenhaus
Cafe, supra,
211 Conn. 69, 75
(plaintiff’s second action against joint tortfeasor was
barred by double recovery rule because, ‘‘[a]fter a jury
trial, the plaintiff received compensatory, exemplary
and treble damages in the amount of $1,187,763 . . .
and the defendants therein . . . satisfied that judgment in full’’ (citation omitted)). Accordingly, the prohibition against double recovery does not bar the plaintiff’s medical malpractice claim against the state.
We recognize that the plaintiff received $2 million
from CVS Pharmacy as compensation for the death of
the decedent. ‘‘A plaintiff’s settlement with one tortfeasor in a multitortfeasor context, however, does not necessarily represent a claimant’s fair, just and reasonable
damages but, rather, represents, in part, the parties’
assessments of the risks of litigation. Once having
undertaken to bargain regarding those risks, the plaintiff receives the benefit or burden of the settlement.’’
Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 735–36,
778 A.2d 899 (2001); see Black v. Goodwin, Loomis &
Britton, Inc.,
239 Conn. 144, 168,
681 A.2d 293 (1996)
(‘‘[w]hen an award is made pursuant to a settlement
. . . the underlying issues have not been fully and fairly
litigated, and, therefore, the earlier award can have no
preclusive effect on a subsequent action’’). A negotiated
settlement ‘‘represent[s] a surrender of a cause of action,
perhaps for a consideration less than the injury received’’;
it does not equate to a satisfaction of a judgment ‘‘represent[ing] full compensation for injuries.’’ Gionfriddo v.
Gartenhaus
Cafe, supra,
211 Conn. 74 n.8. Accordingly,
the settlement the plaintiff received in the CVS action
does not necessarily constitute full compensation for
the entire amount of the plaintiff’s loss.
To the extent that the state believes that the plaintiff
has been fully compensated for the death of the decedent, it is not without recourse. The state, like any
other litigant in a negligence action seeking damages
for personal injury, wrongful death or property damage,
may at the appropriate time file a notice of apportionment pursuant to General Statutes §§ 52-572h (c)9 and
52-102b (c),10 or introduce evidence of the plaintiff’s
settlement with a joint tortfeasor in a trial to the court11
pursuant to General Statutes §52-216a.12 We therefore
reject the state’s argument that our construction of § 4-
160b (a) permits the plaintiff to recover twice for a
single loss, in violation of the prohibition against double
recovery.
The trial court’s denial of the state’s motion to dismiss
is affirmed.
In this opinion the other justices concurred.
* February 9, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Hereinafter, all references to § 4-160 are to the 2017 revision.
2
‘‘Joint tortfeasors are persons who have acted in concert in committing
the wrong or have engaged in independent conduct that has united to cause
a single injury, thus making them jointly and severally liable for the wrongful
conduct.’’ Robbins v. Physicians for Women’s Health, LLC, 311 Conn. 707,
720–21,
90 A.3d 925 (2014).
3
‘‘In reviewing a denial of a motion to dismiss, we take the facts as
expressly set forth, and necessarily implied, in the plaintiff’s complaint,
construing them in the light most favorable to the pleader.’’ (Internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor
Vehicles, 293 Conn. 382, 385,
978 A.2d 49 (2009).
4
INR ‘‘is the standard by which the anticoagulant activity of warfarin
therapy is monitored.’’ K. Anderson & K. Smith, ‘‘Anticoagulants and Antiplatelet Agents,’’ in Lippincott Illustrated Reviews: Pharmacology (K. Whalen
et al. eds., 7th Ed. 2019) p. 279.
5
Although the denial of a motion to dismiss generally is a nonappealable
interlocutory ruling, ‘‘[t]he denial of a motion to dismiss based on a colorable
claim of sovereign immunity, by contrast, is an immediately appealable final
judgment because the order or action so concludes the rights of the parties
that further proceedings cannot affect them.’’ (Internal quotation marks
omitted.) Miller v. Egan, 265 Conn. 301, 303 n.2,
828 A.2d 549 (2003). We
have explained that ‘‘a colorable claim is one that is superficially well
founded but that may ultimately be deemed invalid . . . . For a claim to
be colorable, the defendant need not convince the . . . court that he necessarily will prevail; he must demonstrate simply that he might prevail.’’
(Citation omitted; emphasis in original; internal quotation marks omitted.)
Sena v. American Medical Response of Connecticut, Inc.,
333 Conn. 30, 45,
213 A.3d 1110 (2019). The plaintiff does not dispute that the state has raised
a colorable claim of sovereign immunity under § 4-160b (a).
6
We note that § 4-160b applies only to the claims commissioner’s ‘‘accept[ance] or pay[ment]’’ of a claim. General Statutes § 4-160b (a). The claims
commissioner did not pay the plaintiff’s claim, and, therefore, the statute
is applicable to the present case only if the claims commissioner accepted
the plaintiff’s claim. The plaintiff does not challenge the state’s contention
that the claims commissioner accepted the plaintiff’s claim by granting the
plaintiff authorization to sue the state. There is no occasion for us to address
the state’s argument that permission to sue the state constitutes the claims
commissioner’s ‘‘acceptance’’ of a claim under these circumstances.
7
Section 4-141 was the subject of amendments in 2018. See Public Acts
2018, No. 18-50, § 25. They have no bearing on this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
8
The state also claims that § 4-160b (a) should be construed to preserve
the common-law rule that ‘‘a release of one joint tortfeasor operated as a
release of all joint tortfeasors.’’ Sims v. Honda Motor Co., Ltd., 225 Conn.
401, 406,
623 A.2d 995 (1993). The state recognizes that this common-law
rule was abrogated by General Statutes § 52-572e, which provides in relevant
part that a release of one joint tortfeasor ‘‘does not discharge the other
tortfeasors unless, and only to the extent, the release so provides’’; General
Statutes § 52-572e (b); but contends that the legislature, in enacting § 4-160b
(a), intended to exempt the claims commissioner’s waiver of sovereign
immunity from the operation of § 52-572e. We reject this claim because,
as we previously explained, the term ‘‘claim’’ in § 4-160b (a) plainly and
unambiguously refers only to a plaintiff’s request for monetary damages
from the state for injury or loss caused by the state through the action or
inaction of its agencies, officers, or employees. Nothing in the statute refers,
either explicitly or implicitly, to the release of joint tortfeasors or § 52-572e.
In light of the plain and unambiguous language of § 4-160b (a), we decline
to adopt the state’s proffered construction of the statute.
9
General Statutes § 52-572h (c) provides that, ‘‘[i]n a negligence action
to recover damages resulting from personal injury, wrongful death or damage
to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party,
each party against whom recovery is allowed shall be liable to the claimant
only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in
subsection (g) of this section.’’
The state contends that, pursuant to Bloom v. Gershon, supra,
271 Conn.
96, it is precluded from filing a notice of apportionment against CVS Pharmacy. The state misconstrues our holding in Bloom. In Bloom, we held that
the claims commissioner lacks jurisdiction ‘‘to waive the state’s sovereign
immunity and [to] grant a claimant permission to file an apportionment
complaint . . . against the state of Connecticut in the Superior Court’’;
(emphasis added; footnote omitted)
id., 99; because ‘‘the commissioner’s
jurisdiction to authorize suit against the state extends only to claims for
monetary damages’’;
id., 111; and because ‘‘apportionment claims are claims
for the apportionment of liability and are, therefore, separate and distinct
from claims for monetary damages.’’
Id., 110. Bloom thus holds that apportionment claims against the state are barred by the doctrine of sovereign
immunity; it contains no suggestion that the state is barred from filing a
notice of apportionment against a joint tortfeasor who was not made a party
to the action and with whom the plaintiff previously had entered into a
settlement and release agreement. Indeed, in Babes v. Bennett,
247 Conn.
256,
721 A.2d 511 (1998), we recognized that ‘‘the legislature intended that
the state be permitted to apportion damages to other liable codefendants
pursuant to § 52-572h (c) . . . .’’ Id., 268; see Rodriguez v. State,
155 Conn.
App. 462, 468,
110 A.3d 467 (in negligence action against state, ‘‘the state
filed a notice of apportionment against [the joint tortfeasors], alleging . . .
that any damages should be apportioned between the state and those nonparties’’), cert. granted,
316 Conn. 916,
113 A.3d 71 (2015) (appeal withdrawn,
December 15, 2015). Our holding in Bloom, in short, would not bar the
state from filing a notice of apportionment against CVS Pharmacy in the
present case.
10
General Statutes § 52-102b (c) provides in relevant part: ‘‘If a defendant
claims that the negligence of any person, who was not made a party to the
action, was a proximate cause of the plaintiff’s injuries or damage and the
plaintiff has previously settled or released the plaintiff’s claims against such
person, then a defendant may cause such person’s liability to be apportioned
by filing a notice specifically identifying such person by name and lastknown address and the fact that the plaintiff’s claims against such person
have been settled or released. Such notice shall also set forth the factual
basis of the defendant’s claim that the negligence of such person was a
proximate cause of the plaintiff’s injuries or damage. . . .’’
11
Section 4-160 (f) provides that claims against the state authorized by
the claims commissioner must be ‘‘tried to the court without a jury.’’
12
General Statutes § 52-216a provides: ‘‘An agreement with any tortfeasor
not to bring legal action or a release of a tortfeasor in any cause of action
shall not be read to a jury or in any other way introduced in evidence by
either party at any time during the trial of the cause of action against any
other joint tortfeasors, nor shall any other agreement not to sue or release
of claim among any plaintiffs or defendants in the action be read or in any
other way introduced to a jury. If the court at the conclusion of the trial
concludes that the verdict is excessive as a matter of law, it shall order a
remittitur and, upon failure of the party so ordered to remit the amount
ordered by the court, it shall set aside the verdict and order a new trial. If
the court concludes that the verdict is inadequate as a matter of law, it shall
order an additur, and upon failure of the party so ordered to add the amount
ordered by the court, it shall set aside the verdict and order a new trial.
This section shall not prohibit the introduction of such agreement or release
in a trial to the court.’’ (Emphasis added.)
As this court observed in Peck v. Jacquemin, 196 Conn. 53,
491 A.2d 1043
(1985), ‘‘[i]t is readily apparent that, in cases tried to the court to which
this statute applies, the legislature intended . . . to permit the introduction
of any such agreement or release’’ with a joint tortfeasor to ‘‘[assist] the
court . . . in arriving at an award of fair and just compensation where
liability is found . . . .’’
Id., 73; see
id. (because ‘‘it is assumed that the trial
court will utilize only competent evidence in arriving at its decision and
will disregard that which is incompetent . . . the matter of an agreement
or release is handled under § 52-216a in a trial to the court with no substantive
difference from the way it is handled in a trial to a jury’’ (citations omitted)).
