Opinion
CV116008731S
10-01-2019
CHICAGO TITLE INSURANCE CO. v. Virginia MAYNARD
UNPUBLISHED OPINION
OPINION
Cosgrove, J.
In the present case, on March 20, 2014, judgment was entered against the defendant, Virginia Maynard, and in favor of the plaintiff, Chicago Title Insurance Company, in the amount of $30, 423.77, plus interest. On January 3, 2017, the defendant was injured in a car accident. On December 21, 2019, the defendant, unable to resolve the matter concerning the car accident short of litigation, brought an action to recover for personal injuries entitled Maynard v. Costello, Superior Court, judicial district of New London, Docket No. CV-19-6039110-S (personal injury case). On May 17, 2019, in the present case, the substitute plaintiff, GSFNT Recovery Fund, LLC, filed an application for a turnover order in aid of execution against the defendant’s interest in the currently pending personal injury case. On June 24, 2019, the defendant filed an objection to the plaintiff’s application for a turnover order. The court held a hearing on the matter on June 26, 2019.
The plaintiff alleges that as of April 22, 2019, the unsatisfied judgment totaled $40, 025.94, plus interest, legal fees, and costs.
See Motion to Substitute Plaintiff (Docket No. 127.00) and Notice of Business Affiliation (Docket No. 138.00).
The application for a turnover order in aid of execution states "the [s]ubstitute [p]laintiff seeks a turnover order in aid of execution against the personal property of Virginia Maynard pursuant to § 52-356b of the General Statutes, directing Virginia Maynard and Kevin Costello to turn over all causes of actions and proceeds of any claims required to satisfy the Judgment, which turnover order shall attach as a statutory lien against Virginia Maynard’s interest in the net proceeds of her personal injury cause of action, currently pending in the Judicial District of New London, entitled Maynard v. Costello, Docket No. KNL-CV19-6039110-S."
DISCUSSION
General Statutes § 52-356b(a) may be used by a judgment creditor in the execution of judgments, as follows: "If a judgment is unsatisfied, the judgment creditor may apply to the court for an execution and an order in aid of the execution directing the judgment debtor, or any third person, to transfer to the levying officer ... the following: (1) Possession of specified personal property that is sought to be levied on ..." (Emphasis added.) For purposes of the charging order statute, the term "property" is defined by General Statutes § 52-350a(16): "Property means any real or personal property in which the judgment debtor has an interest which he could assign or transfer, including (A) any present or future right or interest, whether or not vested or liquidated, (B) any debt, whether due or to become due, and (C) any cause of action which could be assigned or transferred." (Emphasis added; internal quotation marks omitted.)
The substitute plaintiff argues that pursuant to § 52-356b(a) and the authority in Padula v. Bianchini, Superior Court, judicial district of Waterbury, Docket No. CV-11-6009381-S (January 14, 2014, Taylor, J.) (57 Conn.L.Rptr. 482), the defendant’s personal injury cause of action can be "assigned or transferred" and, as such, is "property" as defined in § 52-350a(16). The defendant argues that although § 52-350a(26) defines "property" subject to execution to include any cause of action that could be assigned or transferred, her personal injury cause of action does not fall within its scope because our law prohibits the assignment or transfer of personal injury tort claims or its proceeds. Thus, the question is whether a personal injury cause of action or its proceeds are assignable under Connecticut law and therefore attachable pursuant to § 52-356b.
I
ASSIGNMENT OF A CAUSE OF ACTION FOR PERSONAL INJURY
Longstanding Connecticut common law bars the assignment of a cause of action for personal injury: "Under common law a cause of action for personal injuries cannot be assigned, and in the absence of a statutory provision to the contrary a right of action for personal injuries resulting from negligence is not assignable before judgment ... It seems that few legal principles are as well settled, and as universally agreed upon, as the rule that the common law does not permit assignments of causes of action to recover for personal injuries ... The rule was early recognized in Connecticut ... The reasons underlying the rule have been variously stated: unscrupulous interlopers and litigious persons were to be discouraged from purchasing claims for pain and suffering and prosecuting them in court as assignees; actions for injuries that in the absence of statute did not survive the death of the victim were deemed too personal in nature to be assignable; a tortfeasor was not to be held liable to a party unharmed by him; and excessive litigation was thought to be reduced." (Citations omitted; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 382-83, 698 A.2d 859 (1997); see also Gurski v. Rosenblum & Filan, LLC, 276 Conn. 257, 267, 885 A.2d 163 (2005). Thus, in Connecticut, it is well settled law that claims for personal injuries are not assignable.
II
ASSIGNMENT OF PROCEEDS
The plaintiff relies on Padula v. Bianchini, supra, 57 Conn.L.Rptr. 482, for the proposition that although personal injury tort causes of action are not assignable, there is a distinction between the assignability of a cause of action itself and the proceeds from such a claim. Relying on this distinction, the court in Padula granted a turnover order to attach the judgment debtor’s interest in a personal injury tort case and ordered the judgment debtor not to take possession of the net proceeds until the debt from the prior case was satisfied. See id., 484 The Padula court, however, relied on a reversed Superior Court case for this distinction, Gurski v. Rosenblum & Filan, LLC, 48 Conn.Supp. 226, 838 A.2d 1090 (2003), rev’d, 276 Conn. 257, 885 A.2d 163 (2005). See id., 483-84.
In Gurski, the plaintiff, a podiatrist, was the defendant in a medical malpractice action brought by a former patient. See Gurski v. Rosenblum & Filan, LLC, supra, 276 Conn. 260. The plaintiff’s medical malpractice insurer initially retained a law firm to represent him but later determined that his policy did not cover the action. See id. The law firm thereafter ceased its representation of the plaintiff, resulting in the entry of a default judgment against him. See id., 261. Because the plaintiff had insufficient funds to pay the judgment, he entered into an agreement with the former patient to prosecute the action and to assign his recovery therein to the former patient, up to the amount of the judgment she had obtained against him, in exchange for her not executing the judgment. See id., 263. The trial court held that a legal malpractice claim is not assignable as it would violate public policy. See id., 280. The trial court, however, relying on Berlinski v. Ovellette, 164 Conn. 482, 489-90, 325 A.2d 239 (1973), overruled by Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 672 A.2d 939 (1996), distinguished the assignability of a cause of action for personal injury from the assignment of the proceeds and "[o]n the basis of that distinction, the court concluded that Connecticut’s public policy did not prohibit the assignment of the proceeds, even when that policy would prohibit the assignment of the underlying action itself ..." Gurski v. Rosenblum & Filan, LLC, supra, 280. As a result, "the trial court concluded that [the plaintiff’s] assignment of the proceeds to [the former patient] was permissible." Id.
In Berlinski v. Ovellette, supra, 489-90, our Supreme Court held that an uninsured motorist carrier could not be subrogated to its insured’s claim against an uninsured tortfeasor. In support of its holding, the court cited the common-law rule that "a cause of action for personal injuries cannot be assigned." Id., 485. The court explained, however, that "[t]here is, of course, a crucial distinction between an enforceable interest in the proceeds of an action and the right to maintain the action itself." Id., 489. Specifically, the Berlinski court explained that an assignment of proceeds is valid to the extent it does not "purport to transfer to [the assignee] the right to prosecute and control at its own expense, and by its choice of counsel the [assignor’s] cause of action ..." Id., 490.
In Gurski v. Rosenblum & Filan, LLC, supra, 276 Conn. 285, our Supreme Court cast doubt on the "crucial distinction" recognized by the trial court and Berlinski v. Ovellette, supra, 164 Conn. 489, between the assignment of a cause of action for personal injury and the assignment of the proceeds from that action, referring to the distinction as "meaningless." As a result, our Supreme Court disagreed with the trial court’s conclusion and reversed and remanded the case with direction to render judgment for the law firm. See Gurski v. Rosenblum & Filan, LLC, supra, 285. The Gurski court issued a narrow holding, concluding that the plaintiff’s legal malpractice claim against the law firm he believed was representing him in a medical malpractice action could not be assigned to his adversary in the medical malpractice action. See id., 279-80. The court reached this holding on the public policy rationale that such an assignment would cast a cloud on the integrity of the adversary system by causing the former patient to have conflicting interests. See id. In addition, the Gurski court reviewed the two major bases for the trial court’s decision (1) its reliance on Berlinski v. Ovellette, supra, 489, wherein the court recognized the "crucial distinction between an enforceable interest in the proceeds of an action and the right to maintain the action itself ... and (2) case law from other jurisdictions that recognize such a distinction in the tort context generally." (Internal quotation marks omitted.) Gurski v. Rosenblum & Filan, LLC, supra, 281.
After recognizing that Berlinski had been overruled by Westchester Fire Ins. Co. v. Allstate Ins. Co., supra, 236 Conn. 362, the Gurski court addressed the plaintiff’s argument that two aspects of the Berlinski decision survive, namely "(1) the distinction between an assignment of a claim and an assignment of proceeds; and (2) the factor of control of the litigation as to the validity of such assignments." Gurski v. Rosenblum & Filan, LLC, supra, 276 Conn. 282. The Gurski court disagreed with the plaintiff’s argument and characterized both points as dicta. See id. The Gurski court also downplayed the amount of control that the plaintiff had in the case because he "was obligated to bring the malpractice action and, thus, did not have the right to withdraw the action." Id. Further, the Gurski court disagreed with the distinction made by the trial court and in Berlinski between the assignment of a cause of action and the assignment of proceeds "[f]inally, we agree with those courts that have identified the meaningless distinction between an assignment of a cause of action and an assignment of recovery from such an action, which distinction is made merely to circumvent the public policy barring assignments. Town & Country Bank of Springfield v. Country Mutual Ins. Co., 121 Ill.App.3d 216, 218, 459 N.E.2d. 639, 76 Ill.Dec. 724 (1984). We will not engage in such a nullity." (Emphasis added.) Gurski v. Rosenblum & Filan, LLC, supra, 285.
The Gurski court’s cite to Town & Country Bank of Springfield v. Country Mutual Ins. Co., supra, 121 Ill.App.3d 217, is particularly relevant to the present matter because that case dealt with the assignment of proceeds in a personal injury action. In Town & Country Bank of Springfield, the plaintiff brought an action as the assignee of the proceeds of a cause of action for personal injury seeking to recover a sum of money pursuant to that assignment. See id. The trial court entered a judgment in favor of the plaintiff finding that the assignment was valid, and that the defendant, was liable pursuant to the assignment. See id. On appeal, the defendant argued that "the trial court erred in holding that the proceeds from a cause of action for personal injury could be assigned." Id. The Appellate Court of Illinois agreed with the defendant and reversed the trial court. See id., 219. The court began its decision by recognizing that the common law in Illinois had long established that a cause of action for personal injury is unassignable. See id., 218. The court explained that this well-established precedent stemmed from public policy grounds including "(1) [the fear that a] litigious person could harass and annoy others if allowed to purchase claims for pain and suffering and pursue the claims in court as assignees; and (2) all assignments are void unless the assignor has either actually or potentially the thing which he attempts to assign." Id. The court in reversing the trial court declined to recognize the distinction between the assignment of a cause of action and the assignment of the right to proceeds finding that "the distinction between the assignment of a cause of action for personal injuries and the assignment of the expectancy of recovery from such an action to be a fiction not necessary to support some public policy. The reasons against assigning the cause of action are based on public policy ... and we will not adopt this meaningless distinction to circumvent that public policy. If the assignment of the cause of action is void, the assignment of the expectancy of the proceeds is also void." Id., 218-19.
In the present case, in light of the well-established law that claims for personal injuries are not assignable and our Supreme Court’s recognition of the meaningless distinction between an assignment of a cause of action and an assignment of recovery from such an action, the defendant’s personal injury case is not assignable or transferable, and therefore is not property under § 52-350a(16).
CONCLUSION
Accordingly, the court denies the substitute plaintiff’s application for a turnover order in aid of execution.