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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.
Summary of this case from Carpentino v. GaffeyOpinion
No. CV 03-0481239 S
March 7, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiffs Christopher Holcomb and Nikole Dunabeitia were driver and passenger, respectively, in a motor vehicle headed southbound on Interstate 95 in Stonington, when their vehicle was struck head on by a vehicle operated by the defendant's decedent, Robert A. Snyder, who had been traveling the wrong way in the southbound lane. Both plaintiffs seek damages for injuries they alleged they suffered as a result of this collision. Their original complaints alleged both negligence and recklessness, and in connection with the latter, they sought double or treble damages pursuant to General Statutes § 14-295.
The accident which is the subject matter of this case occurred on February 17, 2002. On June 10, 2005, Snyder died of causes unrelated to the accident, and his daughter, Debora Kovacs, was substituted as defendant. Having conducted some additional investigation following Snyder's death, the plaintiff Nikole Dunabeitia has amended her complaint such that the second count, which still alleges recklessness, now also claims that the defendant's decedent was suffering from dementia at the time of the accident and that his continued use of a motor vehicle under those circumstances constituted reckless disregard in violation of General Statutes §§ 14-222, 14-230, 14-237 and 14-218a.
The defendant has now moved to strike the second count of the plaintiff Nikole Dunabeitia's complaint as well as the prayer for relief which seeks double or treble damages. First, she contends that the additional allegations concerning dementia represent a new factual theory of recovery barred by the applicable statute of limitations. Second, in connection with both the prayer for relief seeking double or treble damages in Dunabeitia's complaint, as well as the second count of Holcomb's complaint in which the same relief is sought, the defendant contends that a claim based on General Statutes § 14-295 does not survive the death of the original defendant.
As to the first of these claims, the court concludes that the amendment does no more than conform the complaint to the evidence expected to be produced at trial. The original second count alleged that Snyder acted recklessly in violation of several enumerated motor vehicle statutes. The amendment does no more than elaborate the factual basis for the allegations of recklessness.
General Statutes § 14-295 provides that "in 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 §§ 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." The plaintiffs contend that despite Snyder's subsequent death, this action survives based on General Statutes § 52-599(a), which provides that 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." The defendant recognizes the general rule but argues that the § 14-295 claim must nonetheless be stricken because General Statutes § 52-599(c) creates three exceptions, one of which, § 52-599(c)(3), states that the "provisions of this section shall not apply . . . to any civil action upon a penal statute."
The defendant draws support from our Supreme Court's holding in Tedesco v. Maryland Casualty Co., 127 Conn. 533, 18 A.2d 357 (1941), to the effect that an insurer's vicarious liability is limited to compensatory damages because the predecessor statutes to § 14-295 made clear that with respect to the offending driver, such a recovery of multiple "represents a sum, the payment of which is imposed . . . as punishment for a violation of the statute which has the aspects of a wrong to the public rather than to the individual." Id., 537. The defendant argues that Tedesco and several other cases have continually referred to § 14-295 using words like "punitive" and "penal," such that any cause of action grounded in § 14-295 must of necessity fall within the exception to survival of actions contained in General Statutes § 52-599(c)(3). The same logic that insulating an insurer from liability for double or treble damages imposed against its reckless insured, the defendant argues, should also insulate an estate from such liability for similar conduct by its decedent.
One court has come very close to addressing the issue directly in the context of a deceased tortfeasor. In Welcome v. Quellette-McGregor, Judicial District of Hartford at Hartford No. CV 01-0811039 (Nov. 21, 2002) 2002 Ct.Sup. 14812, 33 CLR 454, Judge Hennessy found that subsections 1 and 2 of § 52-599c did not render § 14-295 unavailable to a plaintiff suing an estate. Those sections provide that the following kinds of action do not survive the death of a party:
(1) . . . any cause or right of action or . . . any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) . . . any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants . . .
Judge Hennessy found that neither of these subsections operated to defeat a § 14-295 claim. For whatever reason, however, the defendant in that case did not seek to strike the § 14-295 count on the basis of subsection (3), upon which the defendant in this case bases her motion to strike. That claim thus appears to be an issue of first impression in this state.
The term "penal statute" is not defined in our statutes. In Guida v. Commissioner of Corrections, No. CV 88-543 Judicial District of Tolland at Somers (Jan. 11, 1991) ( 3 Conn. L. Rptr. 109), however, apparently the only Connecticut case in which a court has addressed the meaning of the phase, Judge Scheinblum adopted the definition found in Ballentine's Law Dictionary: A "penal statute" is one "which defines and prescribes the punishment for a criminal offense." Ballentine's Law Dictionary, 3rd ed. (Lawyers Co-op Pub. Co., 1969). The court also referred to a discussion of the term in 73 Am.Jur.2d, Statutes, Sec. 12:
Strictly speaking, a penal statute is one which imposes punishment for an offense committed against the state. It is the substance and effect of the statute, rather than its form, that are to be considered in determining whether it is penal. 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. The term is, however, frequently extended to include any act which imposes a penalty, or creates a forfeiture. A retaliatory statute has also been regarded as penal in its nature.
This definition appears appropriate, and in the absence of any other definition, it will have to do. This court will use these two approaches to the meaning of "penal statute" as a starting point in determining where a claim for double or treble damages under § 14-295 is barred by § 52-599c(3).
To be sure, General Statutes § 14-295 does not itself define or prescribe the punishment for any 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) (emphasis added), 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.
Additionally, 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, though the application of § 14-295, do these statutes purport to address wrongs done to individuals.
Judge Lager has provided a concise and helpful history of § 14-295 in Hopwood v. Sciarretta, No. CV-01-00759345, Judicial District of Ansonia-Milford at Derby (Jul. 11, 2002) CT Page 4258 2002 Ct.Sup. 8345, 32 CLR 474.
The antecedent of § 14-295 was a 1797 statute entitled "An Act to Regulate Stage and Other Carriage Drivers" which provided for punitive damages for certain violations of the rules of the road. See Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 287, n. 3, 472 A.2d 306 (1984). The statute was considered a penal statute. Stevens v. Kelley, 66 Conn. 570, 575 (1895); Hotchkiss v. Hoy, 41 Conn. 568, 577 (1874). "[The triple damages are given the injured party, not as compensation or the injury done him, but as a punishment of the defendant for an offense committed against the State." Stevens v. Kelley, 66 Conn. 575 (1895). The purpose of the statute was to deter acts that might endanger public safety and "protect the person and property of the traveler upon the highway from injury resulting from the unlawful use of it by another." Levick v. Norton, 51 Conn. 461, 469-70 (1884). A version of a statute allowing for multiple damages for unlawful use of the road has been in effect continuously since 1797, although the nature of the "rules-of-the-road" violations has changed over time and the statute was amended in 1909 to shift the decision to award multiple damages from the jury to the court, an amendment subsequently found to be a violation of the state constitution in 1988. Bishop v. Kelly, supra, 206 Conn. 621.
A jury must make certain specific factual determinations in order to impose statutory punitive damages under § 14-295." Whether to award punitive damages is a different question than what compensatory damages ought to be. The findings of fact on which a jury might decide to award increased damages are different from those necessary for compensatory damages." Harewood v. Carter, 63 Conn.App. 199, 206, 772 A.2d 764 (2001). Merely alleging a deliberate or reckless violation of one of the predicate statutes does not suffice to describe the conduct which would entitle a plaintiff to the extraordinary remedy available under § 14-295. To state a cause of action under § 14-295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff's injury.
The 1797 act and its successors specifically imposed liability upon the owner of the vehicle when the operator was unable to pay punitive damages for which he had been found liable. Under the act, a plaintiff could bring a writ of scire facias to collect the punitive damages from a master for the actions of his servant. Levick v. Norton, supra, 51 Conn. 468-71. The statute remained essentially the same until 1905 when it was amended to impose substantial restrictions on the injured person's ability to recover against the owner. The restrictive statute was then repealed in 1921 without a replacement, but in 1925 the legislature enacted a statute which imputed liability to the lessor of a motor vehicle for the conduct of the operator of the motor vehicle. The provisions of that law are now codified in § 14-154a. Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 287. No similar provisions imposing liability on the owner of a vehicle for the conduct of an operator have come forward to the present day § 14-295. The court is not aware of a statute which presently imputes liability for treble damages to an employer-owner of a motor vehicle for reckless operation by his employee-operator. The legislature clearly could have chosen to continue to impose liability under these circumstances, but it did not. "A cause of action derived from statute cannot be judicially expanded to apply to situations for which the legislature has declined to provide relief . . . The language of § 14-295 speaks only of multiplied damages against those who drive recklessly." (Citation omitted.) Clark v. Gallup, Superior Court, judicial district of Tolland at Rockville, Docket No. 074117 (June 13, 2001) (Sferrazza, J.) ( 29 Conn. L. Rptr. 655). This is consistent with the penal and remedial purposes of the statute which allow an additional award to a plaintiff not for compensation for injury but "as a reward for securing the punishment of one who has committed an offense which the legislature deems to be a public wrong." Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537, 18 A.2d 357 (1941). (Footnotes omitted.)
The implication of this analysis would appear to be that § 14-295, whose scope has not been amended or expanded by our legislature beyond the possibility of multiple damages against those who drive recklessly and/or those who lease automobiles to them, may not be applied by our courts against the estates of such drivers. Such an amendment could be, and yet may be, but has not yet been, enacted by our legislature.
Although a matter of first impression in this state, a similar but not identical situation was recently addressed by the Supreme Court of Indiana in Crabtree ex re Kemp v. Estate of Crabtree, 837 N.E.2d 135 (Ind. 2005). The decision, apparently one of first impression in Indiana as well, examines the decisions of other states which have considered similar issues and concludes that the majority view denies "punitive damages" against an estate on the theory that such damages are signed to punish the wrongdoer and that "the death of the tortfeasor eliminates the court's ability to accomplish that role." Id., at 138. The minority of states that do permit such damages do so on the theory, extraordinarily dubious, in this court's view, that "potential tortfeasors will be deterred by the knowledge that their estates may be liable for punitive damages." Id. The possibility that such a level of forethought might actually exist within the minds of potential tortfeasors boggles this court's mind, although it did not seem to boggle that of the lone dissenter in Crabtree. As the majority wrote:
Interestingly, the plaintiffs in Crabtree were also the beneficiaries of the estate. They were the minor daughters of the decedent, passengers in an auto operated by their intoxicated father, who died of unrelated causes a year after the accident.
Most tortfeasors in the case of an accident such as this presumably do not contemplate their own demise. If they consider punitive damages at all, they will deem themselves exposed to that possibility. To the extent that the tortfeasor thinks at all about the consequences of his tort after he dies, he will recognize that he and his estate will have the obligation to pay full compensation to any victim. If we ever encounter a case where a tortfeasor seems to have considered his own death as an escape from punitive damages incident to some intentional tort, we can address the issue at that time. For now, we are content to hold that the purposes of punitive damages are not served by recovering them from a decedent. Id. at 139.
The court also notes that the Indiana statute dealing with survival of actions refers, as does ours, to a "cause of action" and observes that a punitive damages provision is not in and of itself a "cause of action" but rather only a remedy. See Indiana Code § 34-9-3-1(a). "There is no freestanding claim for punitive damages apart from the underlying cause of action." Id. at 138. The adoption of that theory might suggest that since § 14-295 provides a remedy and not a "cause of action," it does not even come within the ambit of § 52-599(a), but § 14-295 clearly spells out various statutory causes of action, whereas the Indiana punitive damages statutes, while dependent on the existence of a underlying cause of action, are not bound up with a specific cause of action as are the double or treble damages provisions of our statute.
The applicable Indiana statute provides that only 25% of any punitive damages award is to go to the plaintiff; the balance is to go to the state treasurer for deposit in the crime victims' compensation fund, making that statute fit even more clearly within the definition of a "penal statute" by demonstrating that the wrong sought to be righted is largely one against the state. See Indiana Code § 34-51-3-6. Our statute, which does not specifically call the added award "punitive" but speaks only in terms of "double or treble damages," is thus a better candidate for consideration as one that is at least partly remedial. To illustrate that point, although an award of compensatory, i.e. remedial, damages is said to make a victim whole for his or her economic and non-economic loss, we recognize that such an award may not in fact do so because it fails to take into account that fact that some portion of the judgment, usually around one-third, is going to be paid to the plaintiff's attorney as his or her fee for services. Nevertheless, an award of double or treble damages would not only pay for the plaintiff's attorneys fees, but would also provide a substantial windfall to the plaintiff that in no way was designed to compensate the plaintiff for any physical or financial harm. Even if § 14-295 could thus be viewed as a magnanimous way for the state to exact punishment for the tortfeasor's harm to society, by passing the proceeds on to the plaintiff, its primary purpose must still be seen as "penal."
It has been suggested that the damages recoverable under General Statutes § 14-295 should not be termed "punitive" damages at all but rather "statutory multiple damages" or "statutory double or treble damages." This distinction could be important because "[u]nder Connecticut common law, the terms `exemplary damages' and `punitive damages' are interchangeable labels for damages awarded under certain circumstances to compensate a plaintiff for his expenses of litigation . . . It is well settled, however, that statutory multiple damages awarded pursuant to § 14-295, while serving a similar punitive purpose . . . are separate and distinct from common law punitive damages and are awarded in addition thereto in appropriate cases." Caulfield v. Amica Mutual Ins. Co., 31 Conn.App. 781, 786 n. 3, 627 A.2d 466 (1993). That such damages may be "separate and distinct," however, does not detract from the inescapable conclusion that such damages serve a punitive purpose, and the statute which authorizes them is thus appropriately considered to be "penal" for purposes of considering whether an action brought pursuant to it should be deemed to survive the tortfeasor's death.
A punitive damages award under the Connecticut Unfair Trade Practices Act, ("CUTPA"), General Statutes Sec. 42-110a, et seq, which has often been described as having both penal and remedial attributes, is limited to the plaintiff's attorneys fees. It thus punishes the defendant by making him or her (or it) pay sums not available at common law, but it is also remedial in the sense that the total effective judgment is designed to make the victim whole by requiring the defendant to pay both fair, just and reasonable economic and non-economic damages, plus the cost to the plaintiff of obtaining those damages.
General Statutes § 14-295, however, clearly seeks to do much more than provide a more nearly complete compensatory remedy. By authorizing the trier of fact in a civil case to use its discretion to award double or even treble damages, this statute permits a result whose clear raison d'ete is to punish conduct that has been found to go beyond simple negligence and which violates certain motor vehicle statutes either deliberately or with reckless disregard. That mandate is unrelated to the nature of the harm done to the plaintiff, but rather to the nature of the tortfeasor's conduct, for which the statute provides what is a potentially very stiff penalty.
If the statute is indeed essentially "punitive" or "penal," then a plaintiff should not be permitted to invoke it recover damages against the estate. Since 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.
The court has considered one way of trying to rationale or harmonize the dual qualities of § 14-295, namely by denying the motion to strike with the understanding that any double or treble damage award by the jury in this case would be subject to a motion for a remittitur, reducing the actual judgment to the compensatory damages awarded by the trier of fact, less any collateral source reductions, plus an amount equal to the plaintiff's attorneys fees and any other legitimate costs not otherwise recoverable by statute. Such an approach would be consistent with the general rule favoring survival of actions against a decedent tortfeasor, the prohibition of punishing the estate for any harm done by the decedent, and the limited remedial aspects of § 14-295. It would ensure that the plaintiff would not, if the trier of fact makes the requisite findings, in any way be left out of pocket, with any "punishment" of the estate consisting of a sum no greater than that which is necessary to achieve that limited result.
Having considered that approach, however, the court rejects it. While the approach has, in this court's view, the virtue of being sensible, it requires too high a level of judicial tinkering. The problem is probably one which, in the final analysis, ought to be addressed by the legislature, which, if it chooses to do so, could provide for CUTPA-like punitive damages against an estate in the case of reckless conduct with a vehicle by a decedent.
For one thing, the court cannot rule out the possibility that, since the existence of contingent fees is more or less common knowledge, a jury's compensatory damage award, or at least the non-economic portion of it, may already reflect the recognition that a portion of the award is going to go to the plaintiff's attorney as a fee. If a jury has already factored in a fee, sub rosa, it would certainly be inappropriate for the court to permit an additional award for attorneys fees without the jury's having been made aware of such a possibility.
This court 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. The Motion to Strike is therefore granted.