Opinion
No. X08 CV 03 0193735
September 17, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS (128.00, 129.20)
In a revised complaint Walter and Ann Marie Cerretani allege that Keith Major was driving a heating oil truck owned by Levco Tech, Inc. (Levco) when it overturned and oil spilled onto the Cerretanis' property causing significant damage to and pollution of, the property. The revised complaint contains twenty counts. The defendant Major has moved to strike the fifteenth and eighteenth counts which seek double, treble and punitive damages. The defendant Levco moves to strike the sixteenth, seventeenth, nineteenth and twentieth counts which seek to hold Levco vicariously liable for Major's allegedly common-law and statutory recklessness and allege that Levco's actions themselves were reckless and in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
I. Standard of Review
The court's analysis of a motion to strike is guided by well accepted standards:
The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." CT Page 10878-ev Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
II. Major's Motion to Strike
A. Fifteenth Count. In their fifteenth count, the Cerretanis allege that Major's acts and omissions leading to the overturning of his oil-laden truck amounted to reckless behavior, and they seek punitive damages under the common law. Major contends that the allegations of fact in the fifteenth count do not rise to the level of recklessness and should be stricken.
The Connecticut Supreme Court in Dubay v. Irish, 207 Conn. 518 (1988), has set forth the definition of recklessness. "It is more than negligence, more than gross negligence." Id. 532 (quoting Mooney v. Wabrek, 129 Conn. 302 (1942), and Bordonaro v. Senk, 109 Conn. 428 (1929)). The Dubay court noted also that the terms "willful" "wanton" and "recklessness" have generally the same meaning and it is "highly unreasonable conduct, involving an extreme departure from ordinary care . . . is more than thoughtlessness, or inadvertence, or simply inattention." Id. 533 (quoting Prosser Keeton, Torts (5th Ed.) § 34, p. 214); see also Elliot v. Waterbury, 245 Conn. 385, 415 (1998).
The specific allegations of recklessness in the fifteenth count are that Major:
a. failed to keep a proper lookout or be watchful under the circumstances;
b. operated the truck without sufficient training and/or experience;
c. failed to apply the brakes, turn the vehicle, or take evasive action so as to avoid the crash and/or;
d. failed to keep the truck under proper control and/or traveled at an excessive or unreasonable speed;
e. violated Conn. Gen. Stat. Section 14-218a (traveling unreasonably fast);
f. violated Conn. Gen. Stat. Section 14-235 (traveling in the left lane); CT Page 10878-ew
g. violated Conn. Gen. Stat. Section 14-218a (traveling unreasonably fast);
h. violated Conn. Gen. Stat. Section 14-301 (failing to obey a "Stop" sign);
i. violated Conn. Gen. Stat. Section 29-322 (operating an uncertified tanker truck).
The Cerretainis correctly emphasize that these allegations must be viewed in the context of the size and load of the vehicle Major was operating. In other words, they contend what might be ordinary negligence when operating a family sedan must be seen as recklessness in the operation of a large truck transporting a potential pollutant. Nevertheless, the allegations on their face are those of negligence. What is lacking noticeably are any specifics bringing the alleged actions or omissions to a level of recklessness. There are no allegations, for instance, that the "unreasonable" speed was such that one could infer that it was the result of something more than a failure to exercise reasonable care. The same might be said of the allegation of driving in the left lane. The revised complaint contains no allegation that such activity was prolonged or that it was caused by anything other than inadvertence. In the absence of such specifics, the fifteenth count is ordered stricken.
B. Eighteenth Count. In their eighteenth count the Cerretanis repeat the allegations of the fifteenth count and further state that Major's alleged violation of General Statutes § 14-218a which was done deliberately or with reckless disregard was a substantial factor in causing damage to the Cerretanis' property.
General Statutes Section 14-295 allows the trier of fact to award double or treble damages if the plaintiff has specifically pleaded that the defendant deliberately or with reckless disregard operated a motor vehicle in violation of § 14-218a and that such violation was a substantial factor in causing injury, death or damage to property.
The various superior courts are split as to whether a cause of action pursuant to § 14-295 requires allegations of specific facts showing reckless behavior as is required when pleading a common-law claim for punitive damages (see Part II-A of this opinion) or whether simple compliance with the pleading language set forth in Section 14-295 is sufficient. This court has sided with the latter position since the statute creates the cause of action, and its language dictates what CT Page 10878-ex allegations are sufficient. See Starr v. Lopez, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 01 0185811 (November 6, 2000). The motion to strike the eighteenth count is denied.
III. Levco's Motion to Strike.
A. The Sixteenth Count. This count directed against Levco, repeats the allegations of the fifteenth count against Major, and seeks to hold Major's employer vicariously liable for Major's allegedly reckless behavior. The sixteenth count alleges that Major was operating Levco's truck with Levco's permission within the scope of his employment at the time of incident. The count seeks punitive damages.
Having held that the fifteenth count does not state a claim for punitive damages against Major, the sixteenth count which seeks to impose the same claim against Levco vicariously must be stricken.
B. Seventeenth Count. In the seventeenth count, the plaintiffs allege that Levco acted recklessly in that it:
a. failed adequately to maintain, inspect, and/or repair the truck;
b. failed adequately to train and/or supervise its drivers including Major.
c. owned and operated the Truck in violation of Conn. Gen Stat. Section 29-322. [uncertified tanker truck]
d. failed to give Major the proper and sufficient experience needed to operate the Truck in compliance with laws and so as to avoid injury and/or damage.
These allegations sound in negligence. Without additional specifications of fact, they do not rise to the level of stating a claim for recklessness, and for the reasons stated in Part II-A above, the seventeenth count is stricken.
C. Nineteenth Count. The nineteenth count repeats the allegations of the eighteenth count to the effect that Major was liable pursuant to General Statutes Section 14-295. The count then goes on to allege that Levco is liable for Major's conduct because Major was operating the Levco truck as Levco's employee in the course of his employment. It is alleged further that pursuant to General Statutes § 52-183 Major is deemed to be the agent of Levco. In this count the Cerretanis seek to impose the double or treble damages allowed by Section 14-295 on Levco. CT Page 10878-ey
General Statutes, § 52-183 establishes a rebuttable presumption that in any action for damages arising from "the negligent or reckless operation" of a motor vehicle, the driver is the agent or servant of the owner of the vehicle.
The court has already found that the eighteenth count states a cause of action against Major under the bare-bones pleading allowed by Section 14-295 (see Part II-B above). The next issue is whether the double or treble damages allowed by Section 14-295 can be imposed on an owner of a vehicle or employer of the driver vicariously. Under Connecticut common law, it is difficult to be held vicariously liable for exemplary or punitive damages. Gionfriddo v. Rent A Car Systems, Inc., 192 Conn. 280, 288 (1984). In the absence of controlling appellate authority, there has been a split within the Superior Court between judges who have held that one may be held vicariously liable for double or treble damages under § 14-295 and those who have held otherwise.
This court has held that a vehicle owner may be sued vicariously under Section 14-295. Matthiessen v. Vanech, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV96 0154373 (July 9, 2001) (ruling on motions to set aside verdict and for judgment n.o.v.). This court strayed from this position in Gomez v. Payne, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 010184054, (January 24, 2003) ( 34 Conn.L.Rptr. 73), probably because General Statutes § 52-183 was neither argued nor considered. Nevertheless, the court has read and considered a large array of cases on both sides of the issue and adheres to the views as set forth in Matthiessen. See Graydus v. Georges El-Achkar, Superior Court, judicial district of Tolland at Rockville, CV 02 0080322 (May 20, 2003, Scholl, J.) ( 34 Conn.L.Rptr. 642), Thompson v. Arsenault, Superior Court, judicial district of New London, D.N. 124579, (March 20, 2003, Hurley, JTR) ( 34 Conn.L.Rptr. 346), and cases cited in Matthiessen. The motion to strike the nineteenth count is denied.
D. Twentieth Count. In the last count of their revised complaint the Cerretanis allege a violation of CUTPA. In essence, it is alleged that Levco knew its truck was not in compliance with General Statutes § 29-322 (required inspection of vehicles transporting flammable liquids) and did not have a valid safety and inspection certificate, and that Major had obtained his commercial and hazardous material driver's license only recently before the incident. Levco has alleged that Major and Levco committed trespass, nuisance and negligence, and seeks equitable relief pursuant to General Statutes § 22a-16 for unreasonable pollution. Additionally, as noted above, the plaintiffs have alleged that both Major and Levco have violated General Statutes § 14-295.
In Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342 (2002) the Appellate Court held that a single incident or act could trigger liability under CUTPA and reminded us that CUTPA should be liberally construed. Nevertheless, this case involves a motor vehicle CT Page 10878-fz incident with environmental consequences. The plaintiff has not submitted any caselaw to support the application of CUTPA to this situation. The substantial number of separate counts in the revised complaint is evidence that the plaintiffs are not without potential remedies, including, as held in Parts II-B and III-C herein, the potential of double or treble damages.
More importantly, the plaintiffs have not set forth allegations which, if true, would invoke the protections of CUTPA. In Paragraph 9 of the twentieth count (incorporated by reference from the first count) it is alleged that Major only had the necessary commercial and hazardous materials driver's license for a "short time and had received little and/or inadequate and/or no training in the safe and proper operation of oil tanker trucks."
Liability under CUTPA requires some practice or act which is unfair or deceptive. The "elusive concept of unfairness" is often defined in our cases by reference to the so-called "cigarette rule" promulgated by the United States Federal Trade Commission which states:
(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, Page 246 statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).
29 Fed. Reg. 8355 (1964) (quoted in FTC v. Sperry Hutchinsen Co., 405 U.S. 233, 245 n. 5 (1972)).
It is argued by the plaintiffs that other heating oil companies expend time and money, and forego business opportunities, to insure their drivers are properly trained and thus Levco does not "play fair" by allowing an inexperienced driver with a dangerous cargo on the road. Plaintiffs' Objection, 26-28. This argument, however, is not an allegation in the revised complaint which is bereft of any allegations that Levco is stealing a march on, or otherwise unfairly competing with other businesses or consumers. There is no allegation that Levco tells its drivers to speed, drive in the wrong lane, or in any fashion encourages reckless driving in order to obtain or service more business. Indeed, while the Cerretanis allege that Levco's driver was newly licensed to transport hazardous materials he was so licensed, at least indicating adherence to the legislative policy requiring specially trained drivers in this line of work. In short, there is no basis to CT Page 10878-fa treat this vehicular accident as an unfair trade practice.
For the foregoing reasons, the twentieth count is stricken.
TAGGART D. ADAMS SUPERIOR COURT JUDGE