KOUTRAKOS v. HANSON, No. CV07-500 81 11 S (Dec. 1, 2008)

BARBARA N. BELLIS, Judge.

The case presently before the court arises out of a June 27, 2005 three-car accident on Main Street in Monroe, Connecticut. The complaint, returnable May 22, 2007 alleges that the plaintiff, Nancy Koutrakos, was injured when the vehicle she was operating was struck in the rear by a vehicle owned by the defendants Gregory and Mary Claire Hanson and operated by the defendant Timothy Hanson, causing her vehicle to strike the vehicle directly in front of her, operated by non-party Nison Galperon.

On October 29, 2008, the plaintiff filed an offer of compromise pursuant to Practice Book § 17-14, in the amount of $300,000.00. On November 12, 2008, the defendants filed an objection to the offer of compromise. The defendants' objection was on the short calendar as a non-arguable matter on November 24, 2008.

The following procedural history is relevant for the purposes of the motion for extension of time. On the return date of May 22, 2007, defense counsel filed their appearance; they filed a request for disclosure and production against the plaintiff on that same date. The pleadings were promptly closed by the parties. On June 1, 2007, the plaintiff filed a request for an extension of thirty days within which to respond to the discovery request, which was deemed automatically granted. On July 18, 2008, the plaintiff moved for an additional extension of time of thirty days within which to comply; that motion was granted by the court, Owens, J., through September 7, 2007. Before the additional time to comply with the defendants' request for disclosure and production had expired, the defendants, on August 24, 2007, filed a motion for nonsuit for failure to comply against the plaintiff. That motion was not ruled upon. On August 29, 2007, the plaintiff moved for a "second" extension of time of thirty days within which to comply; ultimately, the plaintiff filed her compliance on September 10, 2007. On May 7, 2008 the defendants filed a motion for order of compliance with respect to eighteen outstanding items; the plaintiff filed an objection to that CT Page 18832 motion on May 14, 2008. Neither the motion nor the objection were ruled upon. There were no further motions relating to the plaintiff's compliance with the defendants' request for disclosure and production or deposition of the plaintiff, until the defendant filed the present objection, which indicates that the plaintiff's deposition had been cancelled by her counsel "on several occasions," as recently as October 27, 2008.

Connecticut's offer of compromise statute, Connecticut General Statute § 52-192a, provides in relevant part as follows:

After commencement of any civil action . . . seeking the recovery of money damages . . . the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant . . . file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain . . . If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled.

In the past, this court was faced with the issue of whether it had authority to extend the thirty-day time period set forth in the offer of compromise statute within which a defendant can accept the plaintiff's offer, in light of the language of the statute, which provides that the offer "shall" be considered rejected and not subject to acceptance unless refiled.

§ 52-192a does not explicitly state that the thirty-day time limit is mandatory. The court therefore considered the extratextual evidence of the meaning of the statute. See Connecticut General Statute § 1-2z.

"As we have often stated, [d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). "[T]he word `shall' is not dispositive on the issue of whether a statute is mandatory . . . [and] the use of the word `shall,' though significant, does not invariably [create] a mandatory duty." Id. at 22, (citation omitted). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the CT Page 18833 thing to be accomplished, or in other words, either it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." Id. at 19 (Citations omitted; internal quotation marks omitted.)

This court has previously held that the time limit for accepting an offer of judgment is directory. Wu v. Lockhart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 075012213 (November 6, 2008, Bellis, J.), Ellison v. Dulatre, Superior Court, judicial district of New Haven at New Haven, Docket No. 075015686 (June 12, 2008, Bellis, J.) [45 Conn. L. Rptr. 718]. Other trial courts that have addressed the issue under former § 52-192a are split as to whether the time limit for accepting an offer is directory or mandatory, with a slight majority holding that the time limit is directory. See Christoforides v. Allstate Insurance Co., Superior Court, Judicial District of Stamford, (Docket No. CV 02 0190502 (August 11, 2004, Radcliffe, J.) [37 Conn. L. Rptr. 620] (extension of time granted for an additional thirty days following the completion of the plaintiff's deposition and receipt and review of cervical spine films); McManus-Pesce v. Miller, Superior Court, Judicial District of Hartford, Docket No. CV00 0595198 (February 9, 2001, Peck, J.) [29 Conn. L. Rptr. 304] (overruling objection to acceptance of offer of judgment, where defendant had filed request for extension of time of sixty days from the filing of the plaintiff's compliance and no objection to the request was filed by the plaintiff); Ahern v. O'Connell, 4 CSCR 185 (1989) (granting defendant's motion for extension of time of thirty days from the date of plaintiff's compliance); Quinn v. Collins, 1 CSCR 239 (1986) (overruling plaintiff's objection to defendant's thirty-day motion for extension of time, where plaintiff had not yet filed compliance; the extension was granted until "June 3, 1986 or twenty-three days after the plaintiff's file their full disclosure"). But see Prims v. Ciccarelli, Superior Court, Judicial District of New Britain, Docket No. 05 50000530 (September 21, 2007, Shapiro, J.) [44 Conn. L. Rptr. 343] (denying plaintiff's motion for extension of time of ninety days from the plaintiff's disclosure of all expert witnesses and production of medical authorizations; holding that the time limit is mandatory, and that the defendant presented no compelling equitable reason to excuse compliance with the mandatory time limit); Meyers v. Troncale, Superior Court, Judicial District of New Haven, Docket No. 00 0439881S (January 2, 2002, Robinson, R., J.) [31 Conn. L. Rtpr. 179] (denying defendant's motion for extension of time of thirty days from the date of the plaintiff's compliance, holding that the time limit is mandatory).

CT Page 18834 "In construing § 52-192a, we first note that its purpose is to encourage pretrial settlements and consequently, to conserve judicial resources. The strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment. Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement. In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." Blakeslee v. Arpaia Chapman, Inc., 239 Conn. 708, 742 (1997) (Citations omitted; internal quotations omitted).

This court concluded that the statutory language at issue, which relates to a matter of substance, repeatedly utilizes the word "shall," is accompanied by negative words which mandate that an unaccepted offer shall be considered rejected, and which imposes a penalty on a defendant who fails to accept an offer where the plaintiff recovers an amount equal or greater to the offer, is mandatory.

The question then became whether compliance with the mandatory time limit can ever be excused. The reasoning of Judge Shapiro in the Prims v. Ciccarelli case, supra, which recognizes an exception for compelling equitable reasons, is persuasive. Judge Shapiro pointed out that the Connecticut Supreme Court, in Pedro v. Miller, 281 Conn. 112, 119 (2007), a case dealing with service of an apportionment complaint, reiterated that "[m]andatory time limitations . . . must be complied with absent an equitable reason for excusing compliance." (Emphasis in original; internal quotations marks omitted.) Judge Shapiro ultimately found no equitable reasons to excuse compliance with the statutory time limits, where the defendant argued that an extension was warranted because of new changes in the statute which were expressly made not applicable to causes of action accruing prior to October 1, 2005 such as was presented in Prims.

In the present matter, the defendants take the position in their objection that they need to conduct the deposition of the plaintiff, which has been cancelled by her counsel on several occasions, in order to be in a position to make an informed decision on the offer of compromise. The Connecticut Supreme Court, in Blakeslee, supra, dealing with the propriety of unified offers of judgment, recognized that the acceptance by defendants of reasonable offers of judgments furthers the strong public policy favoring pretrial disposition of civil cases, and that defendants who fail to accept reasonable offers of judgment are penalized by virtue of offer of judgment interest. It would be an unjust CT Page 18835 result if a defendant was unable to make a reasoned decision as to whether an offer of judgment was reasonable — and, by not accepting an offer, was penalized with offer of judgment interest — because of a plaintiff's failure to produce herself for a deposition. In other words, although admittedly an offer to compromise is an offer to settle claims both known and unknown, it would work an injustice to allow a plaintiff to make an offer while failing to produce herself for a duly noticed deposition, and then penalize the defendants by awarding offer of judgment interest for not accepting the offer. Here, the defendants immediately filed a discovery request against the plaintiff, who sought three extensions of time to comply. Additionally, the defendants aggressively pursued discovery from the plaintiff as evidenced by their initial motion for nonsuit for failure to comply and their motion for order of compliance.

Plaintiff's counsel, having cancelled the deposition of the plaintiff on several occasions, filed the offer of compromise on October 29, 2008 — two days after the most recent cancellation of the plaintiff's deposition.

Here, however, unlike the situations previously presented to this court, the defendants are not seeking an extension of time to respond to the offer of compromise, but instead object to the plaintiff's filing of the offer of compromise. The offer of compromise appears to be in order, and while I would have considered an extension of time to respond, I do not believe I have the authority or reason to sustain a blanket objection to the offer of compromise.

For those reasons the objection is overruled.

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