However, the courts themselves have left uncertain one significant area: what amount does the court look to in determining whether to award prejudgment interest under C.G.S. 52-192(b). The court is required to award such interest if ¿the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff’s offer of judgement.

Until this past year, the Appellate Court consistently awarded offer of judgment interest on the whole judgment. In Gillis v. Gillis, 21 Conn. App. 549, cert. denied, 215 Conn. 815 (1990), the Court held that trial courts must consider interest added to the verdict under C.G.S. 37-3a in assessing interest under the offer of judgment statute. Thus, the verdict, which was the same as the offer but which also included ¿37-3a interest, resulted in a judgment in excess of the offer. Postverdict judgment was appropriate based upon the final judgment. In Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301 (1984), the Supreme Court overturned the trial court’s refusal to award offer of judgment interest on the judgment. The verdict, $478,239, was significantly lower than the offer of judgment, $750,000, but the judgment, which included an additional $706,524 for treble damages was higher than the offer. The Court, noting no difference between awards by the jury and those by the court, looked to the total judgment for the determination of offer of judgment interest.

In Civiello v. Owens-Corning Fiberglass Corporation, 208 Conn. 82 (1988), the Supreme Court stated that [t]he issue turns upon whether the term recovered refers to the verdict as returned by the jury or the judgment thereon as rendered by the court after making appropriate adjustments. Id. at 90. The Civiello Court noted that a verdict is in essence a finding of fact which has no legal impact under judgment has been rendered thereon. Id.at 91. In the Civiello case, the plaintiff filed an offer of judgment for $125,000. The plaintiff settled with two defendants prior to trial for $36,000. At trial, the jury awarded the plaintiff $153,522. The trial court rendered judgment ordering the plaintiffs recover the jury award less the $36,000 already received. The trial court found that to allow the plaintiff to recover the verdict and the settlements would unjustly enrich the plaintiff. The amount after remittitur was less than the offer of judgment. The plaintiff sought offer of judgment interest based upon the verdict, not the judgment. The Court relying in part upon the language of the statute upheld the denial of prejudgment interest. It would be incongruous to reward a plaintiff with interest pursuant to the statute where his offer of judgment proves to be excessive in the light of the ultimate judgment of the court. Id. at 91. The Court rejected the plaintiff’s argument that the decision was contrary to the policy underlying 52-192a, that of encouraging pretrial settlement, given that the pretrial settlements in this case were being used to preclude the interest payment. The Court focused on the plaintiff’s recovery and noted that the plaintiff had been free to revise their offer of judgment.

However, time goes by and a new panel of judges comes to the Supreme Court. This year, in Cardenas v. Mixcus, 264 Conn. 314, 320 (2003), the Supreme Court instead held that the purposes of, and the policy underlying, 52-192a, however, strongly support the conclusion that, under the particular circumstances of the present case, the amount of the offer of judgment should be compared with the jury verdict rather than with the amount of the award due the plaintiff after apportionment. In Cardenas, the plaintiff filed an offer of judgment for $99,500. After trial, the jury awarded the plaintiff $104,805. The defendant moved to apportion the award between the plaintiff and the employer, who had intervened under the Worker’s Compensation statutes. The employer was entitled to $17,000, which left the plaintiff with a judgment which was less than the offer of judgment amount. The trial court refused to award interest. The Court reversed and ordered the trial court to award interest based upon the jury verdict rather than the postapportionment judgment.

In fine Courchesne fashion, the Cardenas Court, after finding that the language of the statute could lend itself to either interpretation and the legislative history was not helpful, turned to the purpose of, and the underlying policy for, 52-192a.[1][1] The statute is admittedly punitive in nature. . . . It is the punitive nature of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases. Id. at 321, quoting Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 742-743 (1997).[2][2] The Cardenas Court found that it would not further the purpose of encouraging reasonable pretrial settlements to excuse the defendant from payment of interest simply because the plaintiff was injured at work and had liens for his workers compensation benefits. The Court then noted the plaintiff’s dilemma in determining a proper figure for the offer of judgment if the interest was based upon the judgment rather than the verdict.

As such, the Cardenas Court found that where there is apportionment under ¿ 31-293, post-judgment interest would be based upon the verdict, not the judgment. Essentially, the Cardenas Court looked at what the defendant was paying, not what the plaintiff actually recovered. ¿In contrast to cases in which a trial court orders a remittitur, a postverdict apportionment pursuant to 31-293 has no effect on the amount of damages paid by the defendants in a case. Instead, 31-293 merely affects the number of plaintiffs who must share in the total recovery. Cardenas, 264 Conn. at 324.

Interestingly, the Cardenas case, which was concerned about penalizing those plaintiffs who were injured at work, has now given them greater rights than those injured in other ways. For example, assume a plaintiff injured in a car accident has a case with collateral sources of $30,000. Assume a second plaintiff injured at work also has a case with the employer intervening to enforce a lien for the $30,000 paid for medical benefits. In both cases, the plaintiff files an Offer of Judgment for $100,000. In both cases, the jury renders verdicts of $120,000. In the first case, the plaintiff’s verdict is reduced by the $30,000 in collateral sources and the judgment is $90,000: no offer of judgment interest. In the second case, the plaintiff’s verdict is apportioned under 31-293, and so he recovers $90,000, with the other $30,000 going to the employer: offer of judgment interest applies. The only difference is how much the defendant is paying, not what the plaintiff recovered. In light of the Cardenas decision, future battle lines may be drawn on whether the offer of judgment should be awarded based upon the verdict, not judgment, in collateral source cases- an issue which has already come up but has not yet been decided. Such a decision would be in even sharper contrast with Civiello and would warrant even more judicial gloss. Further, can the judicial gloss withstand the recent legislative overrule of Courchesne given the language of the statute?

A new Court, with a new way of interpreting statutes, has given new vitality to postverdict confusion on offer of judgment interest. In formulating one’s strategy in filing an offer, in responding to that offer and in making or opposing the application of interest postverdict, one must be cognizant that the current Court is more supportive of the purpose of the Offer of Judgment statute than the enforcement of the language of the same.[3][3] However, at the same time, the Court is not supportive of partial settlements in terms of offer of judgment interest. It is ironic that the statutory device designed to promote pretrial settlements is now sufficiently complex that many litigators will not be able to fully predict the interest impact in making recommendations to the client. At the very least, the offer of judgment statute, regardless of its effect on settlements, is, and most likely will continue to be, great fodder for postverdict sparring.

[4][1] It is interesting to note that State v. Courchesne ,262 Conn. 537 (2003) was legislatively overruled just 9 days after the Cardenas decision. P.A. 03-154.

[5][2] The Blakeslee Court noted that the partial pretrial settlement of the case does little to effectuate the purpose of the statute. Of course, the partial settlement of a case does little for the conservation of our limited judicial resources. Accordingly, the ultimate goal in a multi-party lawsuit is the fair and reasonable settlement of the case on a global basis. Blakeslee, 239 Conn. at 743. Perhaps this is why the plaintiff in Civiello received no assistance from the Court.

[6][3] Indeed, Judge Zarella concurred with the outcome of the Cardenas decision, even as he continued to espouse the plain meaning rule.