Opinion
No. HHD-CV-10-6006576S
August 12, 2010
MEMORANDUM ORDER RE DEFENDANTS' MOTION TO STRIKE SECOND COUNT OF THE PLAINTIFF'S COMPLAINT
Upon considering the briefs and arguments of counsel in support of and in opposition to the Defendants' Motion to Strike the Second Count of the Plaintiff's Complaint dated February 11, 2010, the Court hereby concludes, for the following reasons, that said Motion must be GRANTED:
1. In this case, plaintiff, Karen Forbes, as Executrix of the Estate of Viola Halamicek, has brought suit against defendant Carolyn Stoto, Administratrix of the Estate of Matthew P. Stoto and the DCFS Trust, to recover money damages for fatal injuries and losses allegedly sustained by Ms. Halamicek due to the negligence and/or the recklessness of Mr. Stoto in the operation of his motor vehicle in Rocky Hill, Connecticut on August 9, 2009.
2. According to the plaintiff's four-count Complaint dated December 21, 2009, Mr. Stoto caused the fatal injuries and resulting losses to Ms. Halamicek by traveling westerly on West Street in Rocky Hill at an extremely high rate of speed, failing to stop his vehicle for the traffic control signal at the intersection of West Street and Gilbert Street, then running into the motor vehicle of Ms. Halamicek as she drove it through the intersection under a green light for traffic in her lane of travel. As a result of the ensuing collision, Ms. Halamicek allegedly sustained grievous physical injuries from which she soon died.
3. In Count Two of her Complaint, the plaintiff claims that Mr. Stoto caused the collision in question, and thus Ms. Halamicek's fatal injuries and losses, by operating his motor vehicle at the time and place of the collision with reckless disregard, in alleged violation of several motor vehicle statutes, including General Statutes § 14-222, the reckless driving statute; General Statutes § 14-227a, the drunk driving statute; and General Statutes § 14-234, the statute forbidding passing another vehicle in a no-passing zone. On the basis of such allegations, she seeks double or treble damages for Ms. Halamicek's injuries and losses under General Statute § 14-295.
4. Section 14-295, as amended most recently by Public Act 03-250, provides as follows:
Public Act 03-250 added the final sentence to the current version of the statute, which now prevents owners of rented or leased vehicles from being found liable for double or treble damages under the statute unless the plaintiff's damages arose from the owner's operation of the motor vehicle.
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 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. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.
5. The case is now before the Court on the Defendants' Motion to Strike the Second Count of the Plaintiff's Complaint dated February 11, 2010. As grounds for that Motion, the defendants claim that Count Two must be stricken because an action under Section 14-295 is an "action upon a penal statute" which cannot lawfully be maintained against the executor or administrator of a deceased tortfeasor's estate without violating the Connecticut Survival Act, General Statute § 52-599, which provides in relevant part as follows:
***
(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 . . . If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is presiding for an order to substitute the decedent's executor or administrator in place of the decedent, and upon due service and return of the order, the action may proceed.
(c) The provisions of this section shall not apply: . . . (3) to any civil action upon a penal statute.
(Emphasis added).
6. For the purposes of Section 52-599, it has long been established that "the test for whether a law is penal, in the strict and primary sense, is whether the wrong sought to be addressed is a wrong to the public or a wrong to the individual." Banker's Trust v. Blodgett, 96 Conn. 361, 366, 114 A. 104 (1921). Under this test, a statute is deemed to be "penal" when its main object is to punish the offender for misconduct rather than to furnish a means whereby the party injured by such misconduct might obtain compensation for his injury and resulting losses. Compare Mitchell v. Hotchkiss, 48 Conn. 9, 14, 40 Am.Rep. 146 (1880) (holding that an action against a corporate officer for failing to file reports or certificates required by statute did not survive against the officer's representative because the statute allegedly violated was of a penal nature, imposing liability "to punish, not a wrong to these plaintiffs, but [the officer's] contemptuous disregard of the authority of the State"); with Porpora v. New Haven, 122 Conn. 80, 181 A. 668 (1936) (holding that an action against the defendant city under the defective highway statute survived the death of the person injured because "the object of the statute was not to punish towns for misconduct, but to furnish a remedy to a party injured through a defect in the highway which it is made the duty of the town to keep in repair").
7. Notwithstanding the foregoing "test," our appellate courts have frequently observed that "the expression `penal statutes,' does not ordinarily include statutes which give a private right of 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 . . . The cases decide, each of them . . . that a statute which gives no more than a right of action to a party injured to recover increased damages is not a penal statute." CT Page 16574 Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1 (1901). As an example of such a statute, the Plumb Court explained the rationale for this general conclusion as follows in reference to the statute at issue before it, which proscribed the illegal cutting of trees on another's land:
When any person commits a trespass by cutting and carrying away trees which he knows stand on the land of another, then the statute compels that person to pay to the party injured increased damages over and beyond what he is required to pay in case the cutting was by mistake; and the amount of that damage is to be determined as the court, upon the trial, shall find the trespass to have been willful or by mistake. This certainly is not an action to recover a forfeiture. The increased damages are obviously awarded to the party injured to repay him for the inconvenience and loss he is likely to have suffered by being deprived of his timber trees without his knowledge and against his will.
Id. at 136.
8. In light of the foregoing authorities, it is apparent that the ultimate question to be answered in determining if a statute is penal in nature, and thus if an action thereunder survives the death of the alleged tortfeasor, is whether or not the legislature, in passing the statute, intended its multiple damages provisions to serve as a penalty for the tortfeasor's statutory violation or as an additional source of compensatory damages for the victim of that violation.
9. Although our appellate courts have not yet been called upon to determine if an action under Section 14-295 survives the death of an alleged tortfeasor, our Supreme Court has long and consistently held that the purpose of the statute's multiple damages provision is not to afford additional compensation to injured persons, but to punish lawbreakers for their deliberate and/or reckless violations of State law. The Supreme Court's analysis of this issue was set forth as follows in Tedesco v. Maryland Casualty Co., 127 Conn. 533, 536-37, 18 A.2d 357 (1941), where the question presented for its consideration was whether an award of double or treble damages under the predecessor to Section 14-295 constituted a sum which, in the language of the plaintiff's insurance policy, the insured was "obligated to pay by reason of liability imposed upon him by law for damages." Considering the true focus of this inquiry under the policy to be whether the purpose of the multiple damages provisions of the statute was to compensate an injured party for his damages or to impose a penalty upon the violator for committing a public wrong, the Tedesco Court decided the matter as follows:
The question, then, is whether the additional damages awarded beyond those which were compensatory are within the provision we have quoted from the policy, as a sum the insured was obligated to pay by reason of liability imposed upon him by law for damages.
Section 1642 originated in an act passed in 1797 which provided that the offending driver of a vehicle should "forfeit and pay" to the injured party "three fold damages and costs of prosecution." In Stevens v. Kelley, 66 Conn. 570, 575, 34 A. 502, we pointed out that in its original form, the statute provided for a qui tam recovery and said that the triple damages then allowed by the statute "are given the injured party, not as compensation for the injury done him, but as a punishment of the defendant for an offense committed against the state . . . The statutory damage is given to the plaintiff as a reward for convicting the defendant of the statutory offense." In Levick v. Norton, 51 Conn. 461, 469, after discussing the statute, which then contained a provision that if the driver of the vehicle was unable to pay the damages they were recoverable from the owner, we said: "All this by way of prevention of acts endangering the public safety." In Rowell v. Crothers, 75 Conn. 124, 126, 52 A. 818, we said that the payment of additional damages "may be imposed as a punishment upon the offender." It is true that in Dubreuil v. Waterman, 84 Conn. 47, 51, 78 A. 721, we pointed out that a statute may partake of the nature of both a penal and remedial statute, and said that this statute, in so far as it permitted an individual to recover damages, was remedial, but that, while not strictly penal, it was so far of that nature that it should be construed with reasonable strickness. This case was followed in Dunbar v. Jones, 87 Conn. 253, 256, 87 A. 787. In both these cases and in those which were either cited in them or in the cases they cited the questions at issue were procedural. See Reed v. Northfield, 30 Mass. (13 Pick.) 94, 101; Palmer v. New York Bank, 18 Me. 166, 172.
In essence, the additional award represents a sum the payment of which is imposed upon an offending driver as punishment for a violation of the statute which has the aspects of a wrong to the public rather than to the individual. This is necessarily so because the obligation of the defendant to pay such damages as will compensate the plaintiff for his injuries and losses is first fixed and then the additional award, doubling or trebling that sum, is made. This additional award is in no way compensatory for any such injuries or losses, and it is difficult to see how, under constitutional guaranties, the defendant could be compelled to pay the money to the plaintiff, except as the recovery is of a qui tam nature, that is, one where an individual is permitted to obtain and hold a penalty as a reward for securing the punishment of one who has committed an offense which the legislature deems to be a public wrong. See Craig v. Gerrish, 58 N.H. 513.
A policy which permitted an insured to recover from the insurer fines imposed for a violation of a criminal law would certainly be against public policy. The same would be true of a policy which expressly covered an obligation of the insured to pay a sum of money in no way representing injuries or losses suffered by the plaintiff but imposed as a penalty because of a public wrong. If the language of the policy is reasonably open to two constructions, one of which would avoid such a result, that should be adopted. In this case, the additional sum representing the doubling of the compensatory damages is, in its essence, a liability imposed, not for damages because of bodily injury, but as a reward for securing the punishment of one who has committed a wrong of a public nature. The words "liability imposed upon him [the insured] by law for damages . . . because of bodily injury" do not cover this additional sum. The trial court should have sustained the demurrer.
Tedesco v. Maryland Casualty Co., supra, 127 Conn. at 535-38. The Supreme Court's holding in Tedesco did not break new ground, for it synthesized and carried forward into the twentieth century earlier holdings of the past century that the multiple damages awards made available to injured persons under earlier versions of the statute were imposed as penalties for offenders' statutory violations rather than as compensation for their victims' resulting injuries.
10. In the several decades since Tedesco was decided, our Supreme Court has consistently followed its holding that, "with respect to the offending driver, [the] recovery [of multiple damages under Section 14-295, as under its predecessors,] `represents a sum the payment of which is imposed . . . as punishment for violation of the statute which has aspects of a wrong to the public rather than to the individual." Cronfriddo v. Avis Rent A Car Systems, Inc., 192 Conn. 280, 286, A72 A.2d 280 (1984). Thus, in Bishop v. Kelly, 206 Conn. 608, 612, 539 A.2d 108 (1988), the Court, citing Tedesco as authority, analyzed the statute's constitutionality under the stricter standards applicable to penal statutes when considering the claim that it was void for vagueness for failure to provide criteria for determining when multiple damages are "just" thereunder.
11. Against this background, the Court must be guided in this case by our Supreme Court's decision in Tedesco that, insofar as it applies to individual defendants sued for multiple damages thereunder, Section 14-295 imposes a penalty for deliberate or reckless lawbreaking rather than additional compensation for the injuries resulting from their unlawful conduct. Accordingly, an action under that statute constitutes "a civil action under a penal statute," which cannot lawfully be prosecuted against the executor or administrator of a deceased tortfeasor's estate without violating the provisions of the Connecticut Survival Statute, particularly Section 52-599(c)(3).
CONCLUSION AND ORDER
For all of the foregoing reasons, the Court hereby concludes that the Second Count of the plaintiff's Complaint must be stricken for failure to state a claim upon which relief can be granted.
IT IS SO ORDERED this 12th day of August 2010.