Opinion
No. NNH CV 10-6011011
December 29, 2010
MOTION TO STRIKE #108
FACTS
The plaintiff, Morgan Dion, brings a four-count complaint against the defendants arising from injuries she sustained as a passenger in a car driven by the decedent, Jill Cowperwaithe. Count one of the complaint alleges negligence against the decedent driver's estate. Count two alleges statutory recklessness against the estate pursuant to General Statutes § 14-295. Count three alleges vicarious liability against the vehicle owner under the family car doctrine. Count four alleges negligence against Megan Cook.
The defendants are: Michael Hayes, the administrator of Jill Cowperwaithe's estate; John Cowperwaithe, the vehicle owner and father of the decedent; and Megan Cook, one who allegedly served alcohol to the decedent prior to the decedent driving and allegedly knew or should have known that the decedent was intoxicated before serving such alcohol.
On May 12, 2010, the plaintiff filed its initial complaint. On November 15, 2010, the plaintiff filed an amended complaint. On November 22, 2010, the plaintiff filed a revised complaint. In count two of the revised complaint, the plaintiff alleges the following. On April 3, 2008, the decedent was operating a vehicle in which the plaintiff was a passenger. The decedent lost control of the vehicle, struck a utility pole and struck several parked cars. The plaintiff contends that, as a result of the accident, she suffered multiple physical and psychological injuries and certain pre-existing injuries were exacerbated. The plaintiff further alleges that such injuries were caused by the reckless, willful and/or wanton conduct of the decedent in operating the vehicle.
On July 2, 2010, the defendants, John Cowperwaithe and Michael Hayes, filed a motion to strike count two of the complaint and a memorandum in support of the motion. The motion to strike addresses count two of the revised complaint because it is the operative complaint. On November 24, 2010, the plaintiff filed an objection to the defendants' motion to strike but the objection incorrectly referenced a different motion to strike. On November 29, 2010, the plaintiff filed an objection to the appropriate motion to strike and a memorandum in opposition. The court heard oral argument on this matter at short calendar on November 29, 2010.
For purposes of this motion, "the defendants" will hereinafter refer to John Cowperwaithe and Michael Hayes, as administrator of the decedent's estate.
DISCUSSION
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . or any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
The defendants argue that § 14-295 is penal in nature because it allows for double and treble damages, and as such, the statutory recklessness claim is barred against the estate of a decedent tortfeasor by § 52-599(c)(3). Section 52-599(c)(3) does not allow for claims made under penal statutes to survive a tortfeasor's death. The defendants further argue that because § 14-295 is penal in nature, count two and the corresponding prayer for relief should be stricken from the complaint. The plaintiff counters by arguing that § 14-295 provides an additional civil remedy for personal injury caused by recklessness of the tortfeasor, not a penal remedy. The plaintiff further argues that because the wrong addressed by § 14-295 is a wrong against the injured party and not a wrong against the state, the statute is not penal. The plaintiff contends that because § 14-295 is not penal in nature, § 52-599(c)(3) does not bar a § 14-295 claim against a decedent tortfeasor's estate.
Section 14-295 provides, in relevant part: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact my 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, CT Page 2096 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." Section 52-599 provides, in relevant part: "(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 . . . (c) The provisions of this section shall not apply . . . (3) to any civil action upon a penal statute."
This court recognizes that a split of authority exists in the Superior Court on the issue of whether § 14-295 is penal in nature. Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) [ 41 Conn. L. Rptr. 491], represents the line of reasoning which finds that § 14-295 is not penal in nature. Salvatore provides that "a penal statute is one imposing punishment for an offense against the state . . . and does not ordinarily include statutes which give a private action against a wrong-doer . . ." Id.; see also Mendygral v. New Haven, 21 Conn.Sup. 397, 156 A.2d 479 (1959) (stating that statutes imposing punishment for offenses against the state are penal). Salvatore states that "[ § 14-295] contains no provision for a punishment or penalty imposed by the state for a crime against the state . . . [and] a determination of whether or not to impose double and treble damages is made by the trier of fact." Salvatore v. Rabis, supra, Superior Court, Docket No. CV 05 4007155. For those reasons, Salvatore holds that: "Under the definitions used by the Connecticut Supreme Court, [ § 14-295] is not a penal statute." Id. Therefore, while "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." (Internal quotation marks omitted.) Carpentino v. Gaffey, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 07 5003014 (July 30, 2008, Jones, J.) [ 46 Conn. L. Rptr. 79] (discussing and quoting Salvatore v. Rabis, supra, Superior Court, Docket No. CV 05 4007155).
In contrast, Holcomb v. Kovacs, Superior Court, judicial district of New Haven, CV 03 0481239 (March 7, 2006, Silbert, J.) [ 41 Conn. L. Rptr. 12], represents the line of reasoning which finds that § 14-295 is penal in nature. See also Forbes v. Soto, Superior Court, judicial district of Hartford, Docket No. CV 10 6006576 (August 12, 2010, Sheldon, J.); Carpentino v. Gaffey, supra, Superior Court, Docket No. CV 07 5003014; McGovern v. O'Connor, Superior Court, judicial district of New Haven Docket No. CV 07 5015198 (May 15, 2008, Cosgrove, J.) [ 45 Conn. L. Rptr. 609]; 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]. Holcomb provides that "§ 14-295 does not itself define or prescribe the punishment for any criminal offense," but "the wrongs sought to be addressed by § 14-295 are ones against the state. Only secondarily . . . do these statutes purport to address wrongs done to individuals." Holcomb v. Kovacs, supra, Superior Court, Docket No. CV 03 0481239. Holcomb discusses the antecedent statute to § 14-295 which "was considered a penal statute." Id. The Holcomb court provides that the double and treble damages available under § 14-295 "serve a punitive purpose, and the statute which authorizes them is thus appropriately considered to be `penal' for determining whether an action brought pursuant to it should be deemed to survive the tortfeasor's death." Id. The Holcomb court states that "[s]ince even a double damages award produces far more than a fair remedial award, § 14-295 must be viewed as essentially penal, its purposes of punishing reckless conduct as a wrong done to the state clearly outweighing, on a purely quantitative basis, any possible remedial value to the plaintiff." Id. The Holcomb court ultimately concludes that "the essence of the purpose of § 14-295 is overwhelmingly penal and that under § 52-599(c)(3), a cause of action based upon it does not survive the death of the tortfeasor." Id.
After reviewing the caselaw on both sides of the split of authority, this court finds the Holcomb line of cases better reasoned and more persuasive. Consistent with the reasoning of Holcomb, this court concludes that § 14-295 is a penal statute. Thus, § 52-599(c)(3) bars the plaintiff's claim for double and treble damages under § 14-295 against the decedent tortfeasor's estate.
For the foregoing reasons, the court grants the defendants' motion to strike count two of the revised complaint and the corresponding prayer for relief.