Grimaldi v. Zavarella, No. Cv92-0509076s (Oct. 27, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO STRIKE The defendants have filed a special defense to the plaintiffs's amended complaint which states:

Pursuant to Connecticut General Statutes 52-572(h) this defendant hereby claims all applicable set-offs, credits including but not limited to, those from any collateral sources, allocations and contributions.

The plaintiffs have moved to strike the special defense on the grounds that under Practice Book Section 164 it is not a legally sufficient defense. The defendants assert that Section 52-572h permits a party to plead a right of setoff in the answer.

Section 52-572h refers to the liability of each tortfeasor for negligence attributable to multiple parties. Section 168 concerns CT Page 9713 a right to setoff or reduce a verdict by the amount of debt claimed to be owed by the plaintiff to the defendant.

Section 52-225a provides for the reduction of damages awarded by the trier of fact. Subsection (b) states that between the finding of liability and the awarding of damages, the court will receive evidence regarding the total amount of collateral payments received by the plaintiff.

The reduction of a verdict by the amount of collateral source payments is not equivalent to a determination of liability of multiple tortfeasors. Nor is it a setoff within the meaning of Section 168 because the collateral source payments are not a claim by the defendants against the plaintiffs.

Section 52-225a requires a court to consider collateral source payments after the trier of fact has awarded damages and before judgment is entered by the court. Evidence of such payments is mandatory but should not be introduced until a decision on the awarding of damages has been made.

Based on the foregoing, this court finds that the special defense is unnecessary and improper. The motion to strike is granted.

Aurigemma, J.