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Substituted Plaintiff Should Refile Offer of Compromise

In DiLieto v. County Obstetrics and Gynecology Group, P.C., 297 Conn. 105 (2010), the Court examined offer of compromise interest. In DiLieto, after several appeals and two trials - the second one resulting in a plaintiff's verdict of over $5 million, the case returned to the Supreme Court for the final time. After reviewing the sufficiency of the evidence in many respects, the Court turned to an interesting question of first impression, i.e. whether interest could be calculated on an offer of compromise (formerly known as "offer of judgment") filed by a plaintiff who lacked the legal authority to do so. The problem was that DiLieto mistakenly had filed an invalid offer of compromise (for $1.5 million) within 18 months of her having commenced the action in 1997; when it should have been filed by her trustee in bankruptcy. Once it was brought to DiLieto's attention that she lacked standing to bring the action, in January, 2000, her trustee was substituted as plaintiff pursuant to the highly remedial C.G.S. § 52-109, which allows a court to substitute a plaintiff in an action mistakenly begun by the wrong person. However, once substituted, the trustee did not file a new offer of compromise. After delving into the policy and the language of this statute, as well as the offer of compromise statute, C.G.S. § 52-192a, the court concluded that interest should run from the date the trustee was substituted, not the date the action was commenced. To avoid any possible confusion in future cases, however, the Supreme Court stated "a party that is substituted as a plaintiff under § 52-109 shall either repudiate the original offer of judgment upon substitution, refile that original offer of judgment, or file a new offer of judgment, at that substituted plaintiff's discretion."