ARTHUR H. HEALEY, J.
This is an appeal from a jury verdict for the plaintiff, Ralph W. P. Buckman, in the amount of $51,595.94. On appeal, the defendant, People Express, Inc., claims that the trial court erred in (1) instructing the jury as to bad faith, (2) improperly allowing a recovery for emotional distress, and (3) refusing to grant its motion for remittitur.
The jury could reasonably have found the following background facts. On December 14, 1984, the plaintiff was terminated from his employment with the defendant. On the day after his termination, the plaintiff, citing various medical problems,
From December 15, 1984, until early March, 1985, the plaintiff was under the impression that he had no medical coverage. As a result, he became withdrawn, very depressed, unable to eat or sleep, upset and teary, and felt inadequate and irresponsible as a husband and father.
After the trial court denied the defendant's motions to set aside the verdict and for remittitur, the defendant, on October 9, 1986, filed an appeal in the Appellate Court. On December 19, 1986, this court transferred the appeal to itself. Practice Book § 4023. On June 3, 1987, this court granted the plaintiff's motion for expedited hearing. Practice Book § 4187.
The defendant's first claim is that the trial court erred in instructing the jury as to the bad faith alleged in the second count of the plaintiff's complaint. In support of this claim, the defendant argues that such instructions were inappropriate because General Statutes "§ 38-262d (a) provides the plaintiff with the sole remedy," namely, that "the employer shall be liable for benefits to the same extent as the insurer or hospital or medical service corporation would have been liable if coverage had not been terminated." The defendant maintains that the employee is "made whole" by the statute and that "[n]owhere in the statute's legislative history does there occur a hint that the legislature meant to provide a recovery for `bad faith.'"
General Statutes § 38-262d provides that whenever an employee who is a member of a group hospital or medical insurance plan becomes ineligible for continued participation in such plan for any reason, the medical
The premise of the defendant's argument that the trial court erred in instructing the jury relative to a claim of bad faith is the assumption that, under the facts of this case, the only cause of action available to the plaintiff is a cause of action based on the violation of the statute. This assumption, however, is erroneous because this court recognizes an independent cause of action in tort arising from an insurer's common law duty of good faith. This cause of action is separate and distinct from the plaintiff's statutory claims. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984); Burgess v. Vanguard Ins. Co., 192 Conn. 124, 127, 470 A.2d 244 (1984); Bibeault v. Hanover Ins. Co., 417 A.2d 313 (R.I. 1980). An "implied covenant of good faith and fair dealing has been applied by this court in a variety of contractual relationships, including ... insurance contracts; Hoyt v. Factory Mutual Liberty Ins. Co., 120 Conn. 156, 159, 179 A.
The trial court instructed the jury that the defendant, "as a self-insurer, had the duty and obligation under the law to deal fairly and in good faith with its insured .... " The court instructed the jury that "[g]ood faith and fair dealing mean an attitude or state of mind denoting honesty of purpose, freedom from intention to defraud and generally speaking means faithful to one's duty or obligation ... an honest intention not to take an unconscientious [sic] advantage of another...." The court also instructed the jury that "[b]ad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties...." The court further instructed the jury that "bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or ill will."
The defendant's second claim of error is that the trial court erred in allowing the plaintiff to recover for his mental and emotional distress. The defendant argues that the plaintiff cannot recover for any claimed mental and emotional distress because the plaintiff did not plead or prove that the defendant knew or should have known "`that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.' [Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978)]." (Emphasis in original.) Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); see also 2 Restatement (Second), Torts § 313 (1965). Although we agree with the principle of law advocated by the defendant, under the facts of this case, we are unpersuaded by the defendant's argument.
In our view, the plaintiff's allegations that "[t]he defendant's failure to enable the plaintiff to continue coverage pursuant to ... § 38-262d of the Connecticut General Statutes caused the plaintiff financial loss and mental distress and anguish" and that "the defendant's bad faith conduct has caused the plaintiff financial loss and mental distress and anguish" thoroughly apprised the defendant of the plaintiff's intent to pursue a claim for mental and emotional distress. See D`Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220, 520 A.2d 217 (1987). As we stated in D'Ulisse-Cupo, "[a]lthough the complaint could have alleged the nature of [the claim] more precisely ... under the rules of practice governing pleading, a party may plead legal effect as long as the pleading `fairly [apprises] the adverse party of the state of facts which it is intended to prove.' Practice Book § 109; see Practice Book § 108." Id.; see Leabo v.
The defendant also claims that the trial court erred in refusing to order a remittitur where only $1595.94 of the $51,595.94 constituted special damages. The defendant argues that "even if the trial court properly found emotional distress, a $50,000 award so shocks one's sense of justice that the trial court erred in denying [its] motion for remittitur."
"The trial court has the inherent power to set aside a jury verdict which, in the court's opinion, is either against the law or the evidence .... Pursuant to this power, the trial court has the right and duty to set aside a verdict as being excessive or inadequate. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 78, 111 A.2d 547 (1955)." O'Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). "The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense
It is with these principles in mind that this court must examine the defendant's claim that the amount of the verdict is "exorbitant" and unjust in light of all of the evidence. Such a claim raises a question of law. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). "`The issue here is not whether this court would have awarded more or less. It is whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to offend the sense of justice and compel a conclusion that the jury [was] influenced by partiality, prejudice or mistake.' Gorczyca v. New York, N.H. & H. R. Co., [supra, 703]." Vandersluis v. Weil, supra.
The defendant argues that "the jury awarded the plaintiff ... $50,000.00 for several weeks of worry and concern, many times more per week for his worries, than [the plaintiff] would have made at his job had
There was evidence before the jury that at the time of his termination, the plaintiff was in need of insurance and that the defendant was aware of this need. At that time, the plaintiff had been suffering from a recurrent ulcer, as well as a problematic dental condition. The defendant knew that he had serious health problems. Additionally, the plaintiff's wife had been enduring a difficult pregnancy and in fact had a complicated delivery two months premature. It is clear from the verdict rendered that the jury concluded that, as a result of the defendant's actions, the plaintiff did suffer mental and emotional distress. There is no claim and no proof, however, of a permanent injury in this case.
Regardless of this evidence, the jury, we conclude, could not reasonably have found that the plaintiff is entitled to recover $50,000.
There is error, the judgment is set aside and a new trial is ordered unless the plaintiff, within three weeks from the date when the judgment of this court is rendered, shall file with the clerk of the Superior Court a remittitur of $35,000 of the amount of the verdict; but if such remittitur is filed, judgment shall thereupon as to the balance of the verdict be rendered upon it.
In this opinion the other justices concurred.
"(b) The provisions of this section shall apply to group policies issued pursuant to chapter 681 and to group hospital and medical expense policies and group hospital and medical service plan contracts issued pursuant to chapters 592 and 593."