Opinion
No. CV-01-0454102 S
March 30, 2004
MEMORANDUM OF DECISION
In this case the plaintiff and the defendant had been dating and they obtained a credit card on which the plaintiff was the primary card holder. They had an agreement that the plaintiff would pay for her charges and the defendant would pay for his charges. The relationship ended and thereafter the defendant ran up numerous changes in the fall of 2000 for which he has not paid. The statement was sent to the plaintiff demanding payment. The plaintiff paid $1,000.00 on the defendant's charges but several more thousand dollars remain owing and interest has accrued on charges incurred by the defendant. The plaintiff has brought suit not just for the money she paid but also on the full liability she has to the credit card company. She also requests an award of attorneys fees.
The plaintiff has advanced the following claims: (1) Intentional Infliction of Emotional Distress; (2) Conversion; (3) Violation of § 52-564 (treble damages for the theft); (4) Breach of Contract; and (5) Unjust Enrichment.
Intentional Infliction of Emotional Distress
This tort requires proof of four elements, two of which are extreme and outrageous conduct and that the emotional distress sustained by the plaintiff was severe. Berube v. Nagle, 81 Conn. App. 681, 697-98 (2004). The court finds that the defendant's conduct was completely unjustified and improper especially since it violated an agreement with a person with whom he had had a relationship but the court cannot find that the conduct was "so extreme in degree as to go beyond all possible bounds of decency and (ought) to be regarded as atrocious and utterly intolerable in a civilized community." Id. The courts would be inundated if every financial dispute between people who had been in a dating relationship could be held to establish this element of the tort where the motive of one of the parties in causing the financial harm was based on the breakup. Also the evidence does not warrant a finding that the plaintiff suffered severe emotional distress. There was no evidence of "mental distress of a very serious kind." Drew v. K-Mart, 37 Conn. App. 239, 251 (1995).
Conversion
The facts established by the plaintiff do not meet the common-law definition of conversion. See Coleman v. Francis, 102 Conn. 612, 615 (1925). The defendant did not exercise any right of ownership over the plaintiff's credit card. Even if he rendered it "useless" as claimed, what damages flow from that? — certainly not prior charges he incurred when the card was still viable. Also there is no claim made for damages to credit rating.
Section 52-564
Statutory theft as used in this section is synonymous with larceny as defined in § 53a-119 of the general statutes. Hi-Ho Tower, Inc. v. Com-Tronics Inc., 255 Conn. 20, 44 (2000). Under § 53a-119 larceny occurs when "with intent to deprive another of property or to appropriate the same to himself or a third person, he (she) wrongfully takes, obtains, or withholds such property from an owner." That definition does not apply to the facts here. The defendant's actions may have resulted in a claim by another against the plaintiff and rendered her credit care useless but the defendant did not directly deprive her of her property and there is no claim made of a loss of credit rating.
Breach of Contract, Unjust Enrichment, Indemnity
The plaintiff sets forth what the court also finds factually: "The plaintiff and defendant Sanzaro entered into an agreement regarding the use of a credit card whereby (the plaintiff) would be responsible for charges made by her and the defendant would be responsible for paying charges made by him. Ms. King was designated the primary card holder for the credit card account and defendant Sanzaro was designated the secondary card holder." Assuming consideration passed and the court could find a binding oral contract it is difficult to see how upon breach the plaintiff would be entitled by way of damages to receive anything more than what she paid out on the defendant's debt: Here, as indicated, the plaintiff seeks not only to recover the monies she has actually paid to the credit card company but also the total liability incurred by Sanzaro which he ran up on the card and has not paid.
The only count that is viable as justifying the plaintiff's full damage claim is perhaps the one alleging unjust enrichment. In United Coastal Industries, Inc. v. Clearheart Construction, 71 Conn. App. 506, 512 (2002). The court defined unjust enrichment as a common-law remedy "allowing damages for restitution, that is the restoration to a party of money services or goods of which he or she was deprived that benefited another." See also Gagne v. Vaccaro, 80 Conn. App. 436, 454 (fn.2) (2003). Thus the plaintiff is entitled to recover the monies she paid for the defendant's charges. But insofar as the plaintiff claims damages not just on what she paid to the credit card company but also as to a damage award for her alleged liability on all the charges incurred by the defendant a strict reading of United Coastal would seem to bar the claim — how can one claim restitution for what has not been paid out. But the analysis cannot stop here because in effect an unjust enrichment claim can encompass an indemnity claim so the ambit of such a claim has to be examined separately.
The United Coastal case also pointed out that the lack of a conflict remedy is a precondition to recovery based on unjust enrichment. Id. p. 513. As to the claim for a recovery beyond what the plaintiff has paid on the defendant's charges, the court has found that she has no contract remedy.
Although no Connecticut appellate court has had occasion to so rule unjust enrichment and indemnity actions are closely related and what is in effect a claim for indemnification, as appears to be the case here, can be made under unjust enrichment theory. In State v. Stewart Ice Cream, 64 N.Y.2d 83, 88 484 N.Y.S.2d 810 (1984) the New York Court of Appeals said: "the underpinning of indemnity actions is the prevention of unjust enrichment. In such cases where unfairness would arise from the assumption by a third party of another's debt or obligation 'a contract to reimburse or indemnify is implied by law';" see also p. 41 Am.Jur.2d "Indemnity," § 2 page 348 where, stating the general law the article says: "Indemnity may be based on an express or implied contract to indemnify, or an equitable concept arising from the tort theory of indemnity. Indemnity may also be based upon a theory of unjust enrichment."
But then the question presents itself in a case involving claims of this type — what is meant by indemnification. In Amoco Oil Co. v. Liberty Oil Electric Co., 262 Conn. 142, 149 (2002), the court said:
Generally, indemnity agreements fall broadly into two classes, those in which the contract is to indemnify against liability and those in which it is to indemnify against loss. In the first, the cause of action arises as soon as liability is incurred, but in the second it does not arise until the indemnitee has actually incurred the loss . . . When the indemnity agreement, however, indemnifies against liability as well as against loss . . . the indemnitee does not have to wait until the loss occurs, but may sue on the agreement as soon as liability is incurred.
Insofar as she makes a claim for damages as to all the charges made by the defendant as opposed to a claim just for the monies she paid to cover those charges, the problem for the plaintiff is that there was no formal indemnity agreement of indemnity let alone such an agreement that explicitly was to indemnify not just for loss but for liability. In that type of a situation the right to indemnity is implied by law and as said in the 41 Am.Jur.2d article on indemnity at § 45: "A cause of action for implied indemnity does not come into existence until the indemnitee has suffered actual loss through the payment of a judgment or settlement. In other words to sue for indemnity for damages resulting from the negligence, misfeasance, or malfeasance of another does not accrue until legal payment is made." Also see Hager v. Equipment Co., 195 S.E.2d 54, 56 (N.C. 1973); cf. Valley Circle Estates v. VTN Consolidated, Inc., 659 8 2d 1160, 1166, fn.6 (Cal. 1983). The cases cited by Am.Jur. involve statute of limitation issues — indemnity action implied by law accrues when loss happens — and the indemnity claims arise in the context of an underlying tort claim, but they support the general proposition for which the article cites them. Also such a rule only seems fair in the sense that before an indemnity obligation is held to cover possible liability as opposed to actual loss there should be some explicit agreement to that effect.
In the context of the facts of a case like this a plaintiff's claim for full liability indemnification can lead to an odd result. True, the plaintiff paid a portion of the defendant's charges but the full charges made by the defendant took place in the fall of 2000 according to the statement sent to the plaintiff and shown to the court. Suit was filed in August 2001 and the trial took place in the fall of 2003. In all that time, the credit card company has not brought suit against the plaintiff for the remainder of the defendant's charges.
In any event the court enters judgment for the plaintiff only in the amount of $1,000.00, the actual money she paid to the credit bard company to cover a portion of the defendant's charges. Based on the theory of recovery that the court has decided supports her claim, the plaintiff is not entitled to attorneys fees (punitive damages).
Corradino, J.