Opinion
No. CV 07 5003014
July 30, 2008
MEMORANDUM OF DECISION RE WHETHER DOUBLE AND/OR TREBLE DAMAGES CLAIM SURVIVES DECEDENT
The issue for the Court today is whether a claim for double or treble damages pursuant to General Statutes § 14-295 survives against a decedent's estate.
This action arises as a result of a vehicular accident that occurred on September 10, 2006, in Haddam, Connecticut, in which the plaintiff allegedly was severely injured when a person by the name of Paul Gaffey allegedly drove his motorcycle across the center lanes of traffic and collided with the car driven by the plaintiff. Counts one and two allege negligence and recklessness, respectively, against Sharon R. Gaffey, in her capacity as administratrix of the estate. Additional defendants are Elvee, Inc., the alleged owner and backer of the Glock Grill in which it is alleged that the late Paul Gaffey imbibed alcohol before the accident, and Thomas Therrien, the permittee of the Glock Grill.
In the Second Count the plaintiff alleges that the automobile accident and his injuries were caused in part by the decedent's driving while intoxicated. The plaintiff also filed an "Ad Damnum," in which he claims double and treble damages pursuant to General Statutes § 14-295, as to count two for recklessness. As indicated, General Statutes § 14-295 permits the court to award double or treble damages for personal injury resulting from operation of a motor vehicle while intoxicated, in violation of General Statutes § 14-227a.
General Statutes § 14-295 provides in relevant part that "[i]n any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
Defendant, Sharon R. Gaffey has filed a motion for summary judgment and attached a memorandum of law thereto. The defendant argues that the plaintiff's claim for double or treble damages pursuant to General Statutes § 14-295 is not allowed because General Statutes § 52-599 does not authorize a civil action premised upon a penal statute, such as § 14-295. The plaintiff filed a memorandum in opposition on April 15, 2008. Oral arguments was heard on May 5, 2008.
Hereinafter, Sharon R. Gaffey, will be referred to as the defendant, as she is the only defendant moving for summary
judgment.
General Statutes § 52-599 states in relevant part that "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person. (b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent . . . (c) The provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are . . . defendants, or (3) to any civil action upon a penal statute."
Summary Judgment Standard CT Page 12448
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). The burden of proof in seeking a motion for summary judgment is on the movant to make a showing that it is quite clear what the truth is. Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). Further, "[a]s the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." Id.Analysis
The present issue involves a pure issue of law. The defendant makes two arguments. First she argues that § 52-599(c)(3) does not authorize a civil action premised upon a penal statute and second, § 52-599(c)(1) and (c)(2) do not authorize the survival of this type of action. The plaintiff, on the other hand, argues that § 14-295 is not a penal statute and that § 52-599(c)(1) and (c)(2) do not bar the plaintiff's claim for double or treble damages.
Before reaching the merits of these arguments, a preliminary issue raised by the plaintiff must be addressed. The plaintiff argues that the defendant improperly filed a motion for summary judgment and should have filed a motion to strike the claim in count two because a motion to strike is the proper vehicle to contest the legal sufficiency of a complaint. The Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
In this matter, the defendant's legal argument is that Connecticut does not recognize a claim for double or treble damages, pursuant to § 14-295, against the estate of a deceased person. If the defendant's
arguments in her motion for summary judgment are in fact correct, the plaintiff would not be able to cure the defect by repleading or amending the complaint. The court, therefore, must reach the substantive arguments raised by the defendant in her motion for summary judgment.
The defendant's first argument is that § 14-295 is primarily a penal statute, and accordingly, § 52-599(c)(3) bars a plaintiff from bringing a claim against the estate of a deceased person pursuant to a penal statute. Both of the parties note that the Appellate Court has not addressed this issue, however, there are three Superior Court cases that have. See Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) ( 41 Conn. L. Rptr. 491); Holcomb v. Kovacs, Superior Court, judicial district of New Haven, Docket No. CV 03 0481239 (March 7, 2006, Silbert, J.) ( 41 Conn. L. Rptr. 12); and Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV 07 5014334 (March 18, 2008, Bellis, J.) [ 45 Conn. L. Rptr. 211]. A review of these cases reveal a division of authority in that Salvatore and Holcomb reach different results. In Salvatore, it was determined that § 14-295 is not a penal statute, whereas in Holcomb, the court determined that § 14-295 is a penal statute. The court in Welton analyzed both decisions and agreed with the reasoning of Holcomb, finding that "§ 14-295 is a penal statute." Welton v. Ferrara, supra, Superior Court, Docket No. 5014334.
The defendant urges this court to adopt the reasoning of Holcomb. In response, however, the plaintiff argues in favor of the adoption of the reasoning in Salvatore. In order for this court to determine whether § 14-295 is primarily a penal statute, it first must be determined what a "penal statute" is.
The Supreme Court has stated that "penal statutes, strictly and properly, are those imposing punishment for an offense against the State; and the expression `penal statutes,' does not ordinarily include statutes which give a private action against a wrong-doer . . . The words `penal' and `penalty,' in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws . . . [A] statute which gives no more than a right of action to the party injured to recover increased damages, is not a penal statute." (Citations omitted.) Plumb v. Griffin, 74 Conn. 132, 134-35, 50 A. 1 (1901); see also Bankers Trust Co. v. Blodgett, 96 Conn. 361, 366, 114 A. 104 (1921), aff'd, 260 U.S. 647, 43 S.Ct. 233, 67 L.Ed. 439 (1923); State v. Pompei, 52 Conn.App. 303, 726 A.2d 644 (1999); Welton v. Ferrara, supra, Superior Court, Docket No. 5014334; Wang v. Griffin, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV
04 0199068 (August 14, 2004, Tyma, J.) [ 37 Conn. L. Rptr. 727]. "The classic definition of a penal statute is one imposing punishment for an offense against the state; and the expression penal statutes, does not ordinarily include statutes which give a private action against a wrong-doer." (Internal quotation marks omitted.) Mobil Oil Corp. v. Killian, 30 Conn.Sup. 87, 99, 301 A.2d 562 (1973).
"The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual." (Internal quotation marks omitted.) Mendygral v. New Haven, 21 Conn.Sup. 397, 398-99, 156 A.2d 479 (1959). In Holcomb v. Kovacs, supra, 41 Conn. L. Rptr. 12, the court stated that "§ 14-295 does not itself define or prescribe the punishment for a criminal offense. It does, however, incorporate by reference some statutes which do both define and prescribe the punishment for criminal offenses, namely §§ 14-222 and 14-227a, which carry penalties of fines and/or imprisonment. Arguably, however, the remaining statutes, which are denominated as either infractions or violations and carry relatively small fines as their only penalties, are not criminal offenses. On the other hand, although our Penal Code states that `offense means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction,' General Statutes § 53a-24(a) . . . that provision of our Penal Code is limited in purpose, and should not necessarily be viewed as restricting the definition of `offense' in the context of this civil case." This reasoning was also utilized in the Welton case.
In Welton, the court, quoting Holcomb, further stated that "it is apparent that the statutes enumerated within § 14-295 all describe wrongs against the State of Connecticut, which has a clear interest in ensuring the safety of travel upon its public highways. They are not, in and of themselves, designed for the purpose of providing civil causes of action. Thus, in the strict and primary sense, the wrongs sought to be addressed by § 14-295 are ones against the state. Only secondarily, through the application of § 14-295, do these statutes purport to address wrongs done to individuals." (Internal quotation marks omitted.) Welton v. Ferrara, supra, Superior Court, Docket No. 5014334.
On the other side of the issue, the court in Salvatore v. Rabis, supra, 41 Conn. L. Rptr. 491, held the opposite of Holcomb, stating that "[s]ection 14-295 of the Connecticut General Statutes contains no provision for a punishment or penalty imposed by the state for a crime
against the state. Furthermore, the court imposes the penalty in cases where penal statutes are violated. Section 14-295 provides that a determination of whether or not to impose double or treble damages is made by the trier of fact. Under the definitions used by the Connecticut Supreme Court, it is not a penal statute." Further, the court held that "§ 14-295 is not a penal statute, and bearing in mind that the purpose of such punitive damages in Connecticut is not only to punish the tortfeasor but to deter others from engaging in the conduct addressed by the statute," the court concluded that the deceased's estate could be sued. Id.
After a review of the relevant caselaw, this court finds the holdings of Welton and Holcomb are more persuasive. "[General Statutes] § 14-295 allows for the imposition of double or treble damages as determined by the trier of fact where a defendant, with reckless disregard, operates a motor vehicle in violation of General Statutes §§ 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a. The statutes enumerated therein are descriptive of wrongs against Connecticut." Welton v. Ferrara, supra, Superior Court, Docket No. 5014334.
When these cases were decided is also important to note. The Holcomb decision was decided on March 7, 2006, whereas the Salvatore decision was released on June 9, 2006, and in Salvatore, reference was never made to the Holcomb decision. What is clear, however, is that the next case to decide this issue, Welton v. Ferrara, supra, found the reasoning of Holcomb more persuasive.
Conclusion
Consistent with the reasoning in Welton and Holcomb, this court concludes that § 14-295 is a penal statute, and pursuant to § 52-599(c)(3), the claim for double or treble damages does not survive against the estate of the deceased.
Accordingly, the Court grants the defendant's motion for summary judgment as to the double and treble damages claims under the Second Count, and thus removes those claims from the plaintiff's prayer for relief.