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Tomick v United Parcel Service Inc

Tomick v United Parcel Service Inc

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Published by Dan Schwartz
Court rules on remand
Court rules on remand

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Published by: Dan Schwartz on Sep 11, 2013
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Tomick v. United Parcel Service, Inc., Not Reported in A.3d (2013)
© 2013 Thomson Reuters. No claim to original U.S. Government Works.1
2013 WL 3970227Only 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UNPUBLISHED OPINION.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. | July 16, 2013.
Attorneys and Law Firms
Brown Jacobson P.C., Norwich, for Michael Tomick.Murtha Cullina LLP, Hartford, for United Parcel Service, Inc.
Pursuant toGeneral Statutes §§37–3aand37–3b, the plaintiff, Michael Tomick, is moving for postjudgmentinterest on the damages awarded by the jury to the plaintiff for negligent infliction of emotional distress and pursuant toGeneral Statutes § 31–51x.
The defendants, United ParcelService, Inc., and Kevin Trudelle, object to the motion forpostjudgmentinterest on the grounds the plaintiff should bedenied interest under§ 37–3abecause the plaintiff nevermade a demand for the interest during the appeal period andthe defendant did not wrongfully detain the payment, and theyargue that under§ 37–3bit is within the court's discretion toaward 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 $50,000against Trudelle for negligent infliction of emotional distressfor a total of $300,000. The jury awarded the plaintiff damages in the amount of $100,000 against United ParcelService, Inc., for violation of § 31–51x. The jury also awardedthe plaintiff damages in the amount of $100,000 againstUnited Parcel Service, Inc., for disability discrimination.The trial court entered judgment on October 28, 2010. Thedefendants appealed the trial court's judgment on November17, 2010. The plaintiff filed a cross appeal. The AppellateCourt issued its decision on the appeal on May 22, 2012.The Appellate Court affirmed the judgment with respectto plaintiff's negligent infliction of emotional distress andviolation of § 31–51xclaims. The plaintiff and the defendantssought certification to the Supreme Court, which was deniedon July 3, 2012. The defendants tendered payment in theamount of $433,333.33 on September 13, 2012.On October 24, 2012, the plaintiff filed his motionfor postjudgment interest presently before the court. Thedefendants filed their objection and memorandum of law inopposition on November 6, 2012. The plaintiff filed a reply onMarch 22, 2013. The court heard oral argument on the motionon April 1, 2013.
“A decision to deny or grant post judgment interest isprimarily an equitable determination and a matter lyingwithin the discretion of the trial court.” (Internal quotationmarks omitted.)
 Bower v. D'Onfro,
 45 Conn.App. 543, 550,696 A.2d 1285 (1997). The defendants argue that the courtlacks jurisdiction over the plaintiff's motion for postjudgmentinterest because the judgment at issue hasbeen satisfied by thedefendants' tendering payment. By tendering the undisputedportion of the damages following appeal, the defendantsestablished the end date of the postjudgment interest period,rather than deprived this court of jurisdiction.With regard to the plaintiff's motion for postjudgment intereston the negligent infliction of emotional distress claims, theplaintiff argues that he is entitled to 10 percent interestbecause§ 37–3bis mandatory. The defendants counter thatif the court is to award interest pursuant to§ 37–3b, the10 percent rate is the maximum interest rate that may beawarded but it is not mandatory. The defendants also arguethat the plaintiff has not met his burden to establish that thedefendants' withholding was wrongful.
 Section 37–3bprovides: “(a) For a cause of action arisingon or after May 27, 1997, interest at the rate of ten per centa year, and no more, shall be recovered and allowed in anyaction to recover damages for injury to the person, or to real orpersonal property, caused by the negligence, computed fromthe date that is twenty days after the date of judgment or thedate that is ninety days after the date of verdict, whichever isearlier, upon the amount of judgment.
Tomick v. United Parcel Service, Inc., Not Reported in A.3d (2013)
© 2013 Thomson Reuters. No claim to original U.S. Government Works.2
“(b) If any plaintiff in such action files a postverdict orpostjudgment motion or an appeal, the recovery of interestby such plaintiff shall be tolled and interest shall not beadded to the judgment for the period that such postverdict orpostjudgment motion or appeal is pending before the court.The provisions of this subsection shall not apply if the reasonfor the filing of a postverdict or postjudgment motion orappeal by the plaintiff is to reply to or answer a motion orappeal filed by the defendant.” In a negligence action arisingafter May 27, 1997, the postjudgment interest rate must be setat 10 percent pursuant to the mandatory statutory language.General Statutes § 37–3b; see also
Carrano v. Yale–New Haven Hospital,
112 Conn.App. 767, 771 n. 4, 963 A.2d 1117(2009)(“When the legislature enacted § 2 of Public Acts1997, No. 97–58, it made the recovery of interest mandatoryrather than discretionary for causes of action arising on orafter May 27, 1997”).The plaintiff was awarded $300,000 in damages for negligentinfliction of emotional distress against the defendants. Ninetydays from the date of the jury's verdict was October 8,2010. Twenty days from the date of the court's judgmentwas November 16, 2010. Pursuant to statute the court willuse the earlier date of October 8, 2010 as the date thatpostjudgment interest began to accrue. The defendant paid theundisputed portion of the judgment on September 13, 2012.Postjudgment interest ran from October 8, 2010, to September12, 2012. This period is one year and 345 days. Postjudgmentinterest 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 onthis negligence claim is $58,355.55.With regard to the plaintiff's motion for postjudgment intereston§ 31–51x, the plaintiff argues that courts routinelyaward 10 percent postjudgment interest, which is withintheir discretion. The defendants argue that 10 percent is notroutinely awarded and that if the court is to award interest itshould be reduced to an equitable rate similar to the prevailingmarket rates.Section 37–3a(a)provides in relevant part: “Except asprovided insections 37–3b,37–3cand52–192a, interest at the rate of ten per cent a year, and no more, may be recoveredand allowed in civil actions ... as damages for the detentionof money after it becomes payable ...”“The court's determination regarding the award of interestshould be made in view of the demands of justice ratherthan through the application of any arbitrary rule ... Whetherinterest may be awarded depends on whether the moneyinvolved is payable ... and whether the detention of the moneyis or is not wrongful under the circumstances.” (Internalquotation marks omitted.)
 Bower v.. D'Onfro, supra,
45Conn.App. 551. “Although the trial court must determine thatthe liable party's detention of money was wrongful in orderto award interest pursuant to§ 37–3a, neither [the SupremeCourt] nor the Appellate Court has held, for the purposes of the statute, that the detention of the money cannot be wrongfulif the liable party had a good faith basis for nonpayment.”
Sosin v. Sosin,
300 Conn. 205, 229, 14 A.3d 307 (2011). “[I]nthe context of the statute, wrongful is not synonymous withbad faith conduct. Rather, wrongful means simply that theact is performed without the legal right to do so ... [This is]consistent with the primary purpose of § 37–3a, which is notto punish persons who have detained money owed to othersin bad faith but, rather, to compensate parties that have beendeprived of the use of their money.” (Internal quotation marksomitted.)
Salce v. Wolczek,
141 Conn.App. 528, 538, 61 A.3d1177 (2013).
The plaintiff was awarded $100,000 in damages for theclaim pursuant to§ 31–51xas well as attorneys fees for a totalof $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 damageswas $100,000, plus the court's award of attorneys fees, andthe money was due from the date of the court's judgment.Therefore, the defendants wrongfully withheld the sum inquestion. This statutory claim is neither a negligence nor apersonal injury claim, therefore,§ 37–3awill apply.Based on the circumstances of this case, the court is awardingpostjudgment 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 determiningthat interest was appropriate ... the court had no discretionbut to start its accrual from any time other than the dateof judgment.” [Internal quotation marks omitted] ). Thepostjudgment interest period is one year and 320 days.Therefore, the total amount of postjudgment interest due onthis claim is $7,507.20.

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