Opinion
FSTCV165015714S
02-02-2017
Patricia Harris v. Lloyd Elliott
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY (#100.31)
Kenneth B. Povodator, J.
Background
The plaintiff is seeking a prejudgment remedy (attachment of the defendant's assets) based on a motor vehicle accident in which a vehicle owned and operated by the defendant struck the plaintiff while she was crossing a street. Liability is contested. The defendant does not appear to challenge the claim that the plaintiff sustained a real and arguably-serious injury, but does contest the extent of the impact of her injuries on her life, which in turn is a challenge to the magnitude of damages being claimed.
According to the plaintiff, she was crossing Camp Avenue, at its intersection with Hope Street, while in a crosswalk with a " walk" signal, when she was struck by the vehicle operated by the defendant. The plaintiff had been accompanied by her son, who was walking in front of her, and he had reached or almost reached the other side of the street when the accident occurred, i.e. there was a non-trival separation between the plaintiff and her son at the time of the accident.
According to the defendant, he had been traveling southbound on Hope Street, and at a time that he had a green arrow for a left turn, he began making a left turn onto Camp Avenue. He did not see the plaintiff in the crosswalk until it was too late to avoid her. He claims that she had a " don't walk" signal at the time of the accident.
Somewhat ambiguously, the police officer, in his report, stated that " I observed that when the traffic lights are green for south and north on Hope St. the crosswalk signal is a red hand to stop." Assuming this to be accurate, and since presumably there is (has to be) some point during the full cycle of traffic lights that there is a " walk" signal for pedestrians crossing Camp Avenue in the subject crosswalk, the remaining possibilities appear to be that there is a period of time in which all vehicular traffic has a red light while the " walk" signal is displayed, or alternatively, and of potential special relevance to this incident, the pedestrian signal displays " walk" while the green arrow for a left turn is showing for vehicles on Hope Street. (An additional level of ambiguity/uncertainty is that there is no indication as to whether there is a button for the " walk" light and whether the " walk" light only comes on if the button is pushed, or whether the " walk" light is part of the regular cycle.) As an overlay to this uncertainty, the court notes that most--but certainly not all--green arrow signals are set up in an " advance" mode rather than a " delay" mode, meaning that the green arrow precedes the green signal for straight traffic, rather than coming on after the green signal for through traffic has turned red.
The court conducted a hearing on October 26, 2016. The parties testified, as did the plaintiff's son (who, as noted, was in front of the plaintiff when she was struck by the vehicle). The plaintiff submitted extensive documentation relating to her injuries and treatment, as well as the police report (already mentioned, above).
Connecticut General Statutes § 52-278d authorizes the court to grant a prejudgment remedy application when the court finds that the plaintiff has shown probable cause that a judgment will be rendered in favor of plaintiff in the amount of the prejudgment remedy sought (or in an amount that the court concludes is appropriate), and finds that a prejudgment remedy securing the judgment should be granted. The court is obligated to take into consideration counterclaims or set-offs asserted by the defendant. Here, in response to the claim that the defendant was careless and reckless as he drove his vehicle and thereby striking and injuring the plaintiff, the defendant has asserted that the plaintiff herself was negligent in connection with her claimed failure to use reasonable care while crossing the street.
In the context of a prejudgment remedy proceeding, " probable cause" has been defined as a " bona fide belief in the existence of the facts essential under the law for the action, in as such as would warrant a man of ordinary caution, prudence and judgment under the circumstances in entertaining it." TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2000). The burden of proof required for a prejudgment remedy is less than proof required by the preponderance of the evidence standard. CC Cromwell LTD. Partnership v. Adames, 124 Conn.App. 191, 194, 3 A.3d 1041 (2010). Probable cause must be established both as to the merits of the case and the amount of the prejudgment remedy, 124 Conn.App. 191, 3 A.3d 1041. The hearing in probable cause is not contemplated to be a full scale trial on the merits of the plaintiff's claim. Three S. Development Company v. Santore, 193 Conn. 174, 474 A.2d 795 (1984).
A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff . . . General Statutes § 52-278d(a)(1) . . . Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits . . . General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 427, 61 A.3d 1154 (2013) (internal quotation marks, omitted).
Discussion
Having identified some of the issues in broad-brush terms, the court now will address the actual evidence and the more detailed information provided to the court. On the limited record presented to the court, it appears to be essentially undisputed that the plaintiff was within the confines of the crosswalk at the time of the accident. It also appears to be undisputed that the plaintiff's son had been in front of her, and had reached or almost reached the sidewalk on the far side, at the time that the plaintiff was struck.
The defendant testified, without any real challenge, that he had come to a stop on Hope Street, and began to make his left turn when the light had changed (green arrow for left turn). The defendant indicated that he had not seen the plaintiff until almost immediately prior to the accident, and his testimony also was that he saw the plaintiff and the plaintiff's son essentially simultaneously.
The foregoing testimony seems to establish that although the plaintiff's son had entered the southerly half of the crosswalk first, the defendant did not see him until the plaintiff, trailing behind, also had entered (or was just about enter) the southerly half of the crosswalk. In other words, there was presumably a second or two in which " someone" was in the crosswalk, and especially within the southerly half of the crosswalk, without being noticed by the defendant as he was making his left turn. (There is no indication or suggestion that the plaintiff's son had been running across the street.) From an alternate perspective: as the defendant was making his left turn, one pedestrian (the son) was moving out of his path, and the other pedestrian (the plaintiff) was moving towards or into his intended path--and the defendant saw neither of them until it was too late.
The court has identified the apparent possibilities with respect to the traffic control signals and the pedestrian signals, but without more information, the court would be guessing as to how they correlate, particularly with respect to the left turn signal for the defendant. Had the walk light turned red simultaneously with the start of the green arrow signal for the defendant? Was the system set up in a manner such that the pedestrian signal was " walk" and turning vehicular traffic had a green arrow, simultaneously? Were the plaintiff and her son mistaken as to the status of the pedestrian signal, as they began crossing the street or did they miss the change in that signal while they were crossing? Had the plaintiff and her son started crossing just before the pedestrian signal changed from " walk" to " don't walk" such that both sides were, in a sense, acting in compliance with appropriate signals (with the plaintiff not having sufficient time to fully cross the street before the defendant observed a green light for his turn and began his turn)?
To the extent that the focus is on probabilities, the court cannot conclude anything but that there is a probability that the plaintiff will establish the fault of the defendant. There were two pedestrians in the crosswalk--the crosswalk itself being a factor--and despite the separation between the pedestrians, the defendant did not see any pedestrian until it was too late (for the plaintiff). The defendant was accelerating from a stop into a turn, such that the speed of his vehicle was presumably modest, and the separation between the pedestrians suggests that the plaintiff was walking slowly (certainly, more slowly than her son), and modest vehicular speed means that there was more time to observe and more time for evasive action.
Although the predominant fault, at this stage, lies with the defendant, the plaintiff must bear at least some small level of responsibility. Aside from questions about the status of the pedestrian signal, the plaintiff appears to have been unaware of the approach of the turning vehicle--and to repeat the inference above, coming from a stop into a turn, while the vehicle was accelerating, it presumably was not going at a high rate of speed. Therefore, there is at least some level of comparative negligence to act as an offset to any damages that the court may determine, as discussed below.
Before moving to the issue of damages, the court notes that the defendant has asserted as a special defense the claimed violation of a number of pedestrian-related statutes, codified in Title 14 of the General Statutes. The explicit recitations of the relevant statutes seem to suggest that the defendant is expecting to invoke negligence per se arising from such statutory violations. The court notes that while the statutes may articulate applicable standards of care, negligence per se does not apply to those pedestrian-related statutes; see, General Statutes § 14-300(g).
" In any civil action arising under subsection (c) or (d) of this section or sections 14-300b to 14-300d, inclusive, the doctrine of negligence per se shall not apply."
The extent of damages that the plaintiff is likely to be able to prove as causally related to this incident was in a significant state of flux at the time of the hearing. The accident occurred in early May; the PJR papers were filed in early June; and the hearing was conducted in late October, all in 2016. At the time of the hearing, the plaintiff submitted bills for medical care in excess of $95,000, with an indication that the plaintiff did not have any billing information as to one healthcare provider, and there was an expectation that the plaintiff would require physical therapy (expected to start in the future) which would generate bills that could not yet be estimated. In addition, the plaintiff claimed a modest $1,358 in lost earnings, covering approximately 7 weeks of lost work (approximately 20 hours per week at $9.70 per hour).
As the issue before the court is the amount of security that the plaintiff may need, the court must not only consider the likely determination of a factfinder on the merits, but also the net/practical impact of other considerations, most obviously including the existence of liability insurance covering the defendant. The court believes it also to be appropriate to consider collateral source implications--to what extent is there likely to be a reduction in a verdict for collateral sources (as opposed to bills that are outstanding and therefore will need to be paid and/or bills paid by payors with a statutory right of reimbursement? All of these factors appear to be in play, although the precise " numbers" are unknown.
The plaintiff has asserted that there is $25,000 of liability coverage, and the defendant has not challenged that claim. (Although the burden of proof generally is upon the plaintiff, it clearly would be in the defendant's interests to establish the availability of as much insurance coverage as possible, in order to minimize the exposure to a prejudgment remedy.)
The court has reviewed the bills that were submitted. Some of them indicate " other" as the primary payor with Medicaid/Husky as a secondary source of payment. Other bills indicate that payments were made by Medicaid/Husky. Still other bills appear to be outstanding with only a notation of plaintiff's counsel as the potential payor, which the court interprets to mean (and in some instances there appears to be an expressed designation (" LOP")) that the provider has been provided with a letter of protection from counsel. At least on an a priori basis, Medicaid/Husky payments would be subject to reimbursement via enforceable lien, but any write-offs associated with that coverage likely would be treated as collateral source reductions. Bills that are outstanding that will need to be paid out of any proceeds, either simply because they are outstanding or because of assurances from counsel, would not be amenable to treatment as collateral sources. If there is another unknown payor, the court has no way of knowing whether that potential source is likely to be an actual payor and if so, how to characterize any such payments.
Finally, the court must take into account the claim of the plaintiff for a " multiplier" effect based on common-law and statutory punitive damages that are being claimed--statutory punitive damages under General Statutes § 14-295 can result in double or treble damages, and common-law punitive damages would be roughly the equivalent of a 1.3 multiplier (assuming statutorily-permissible attorneys fees). The court recognizes the possibility that a jury might award punitive damages, but given the seemingly non-egregious nature of the conduct of the defendant, the court cannot assign too much weight to those claims, for the purpose of determining a likely outcome (on a probable cause basis).
If the plaintiff recovers the amount being sought ($600,000), the statutorily-allowed fees (General Statutes § 52-251c) would come to 29%, which could be rounded to 30% for convenience. A lesser recovery would result in a lesser amount of fees, but would reflect a higher percentage of the recovery, given the statutory formula. Therefore, a multiplier of 1.3 seems an appropriate if crude estimation. (At $300,000, the multiplier would be 1.33.)
To recap the evidence relating to liability and damages: The defendant struck a pedestrian in a crosswalk. The status of the pedestrian traffic control signal is unknown/unknowable; more information as to sequencing might have been helpful in assessing likelihoods. Left turn-pedestrian accidents are, unfortunately, common, and perhaps the most common motor vehicle-pedestrian type accident. Even when a pedestrian fully understands the meaning of pedestrian signals, including flashing red, there is always the potential, especially for slower-walkers, that the light will change before reaching the other side of the intersection. A driver making a turn, especially just after a change in signal, must be alert to the potential for pedestrians in a crosswalk.
The defendant did not see either the plaintiff or her son--who was in front of her--until it was too late to avoid the accident. In other words, there were two people in the crosswalk, at some distance from each other, and the defendant did not notice either of them until it was too late. The defendant is likely to be found liable for the accident and there is a likelihood of some minimal reduction for comparative negligence.
The plaintiff's principal injury was a fractured bone in her leg--a right tibia plateau fracture. She was transported by ambulance to the hospital, where she stayed two nights. She then was transferred to a rehab facility where she stayed for 22 days. She then was discharged to home, where she had some level of in-home assistance for a period of time. Physical therapy was likely to be needed, but had not commenced as of the time of the hearing. Again, bills submitted were in excess of $95,000, and an unknown portion of those bills--likely substantial--are not likely to be subject to offset by collateral source adjustment, post-trial. Future physical therapy and associated bills are expected.
Synthesizing all of the foregoing, the court finds that there is probable cause that the plaintiff will receive a verdict in her favor, and that it is likely to be in excess of $350,000 (after allowance for a reduction for comparative negligence). Further adjusting for the $25,000 of insurance available, and adjusting for the likelihood of Medicaid write-offs as collateral source reductions, the court finds that the plaintiff is entitled to a prejudgment remedy in the amount of $300,000, in the form of an attachment of the property of the defendant to that amount.
[*]Editor's Note: The referenced attachment has not been included with the reported opinion. Effective October 1, 2012, General Statutes § 52-225a(b) provides, in relevant part: " For purposes of this subsection, evidence that a [designated health care provider] accepted an amount less than the total amount of any bill generated by such [designated health care provider], or evidence that an insurer paid less than the total amount of any bill generated by such [designated health care provider], shall be admissible as evidence of the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment."
The plaintiff has sought attachments on four properties owned by the defendant. No information has been provided to the court as to the fair market value of the properties and more critically, no information has been provided as to the defendant's equity in the properties--how much " value" remains available for attachment. The plaintiff is entitled to an attachment sufficient to protect her interests, up to $300,000; the defendant is entitled not to have his property unduly and unnecessarily encumbered by an excessive attachment (attachment of properties with an aggregate equity unnecessarily exceeding the ordered attachment). Quite simply, the court does not know whether the defendant's equity in each identified property exceeds $300,000--in which case only one property might need to be attached--or whether the defendant's equity in each identified property is at or under $75,000--in which case attachment of all four properties might be necessary (and perhaps still inadequate)--or whether the situation is nowhere as neat as these clear-cut alternatives.
Accordingly, the motion for disclosure of assets (#100.35) is granted, limited at this time to disclosure of information relating to the defendant's equity in each of the identified properties. Subject to such disclosure, the court is ordering attachment of the first two identified properties (see attached order ); if after disclosure, there is a need for attachment of additional properties to ensure security to the ordered amount of $300,000, the plaintiff may make a supplemental application in that regard. If the aggregate equity on all four properties, as disclosed, is insufficient, the plaintiff may request further disclosure of assets as appropriate.