Opinion
UWYCV176034485S
12-28-2017
Heather KUNKEL v. Michael DIGIROLAMO et al.
UNPUBLISHED OPINION
OPINION
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed this action by way of summons and complaint dated March 27, 2017. The complaint consists of two counts against Michael R. Digirolamo and Curtiss Ryan Incorporated. The first count alleges negligence as to the defendant Michael Digirolamo and the second count is a claim for improper or poor repairs that were performed by Curtis Ryan, Inc., that caused further loss of value for the car. On June 19, 2017, the plaintiff filed a motion to strike the six special defenses filed by the defendant. The motion to strike addresses only count one which is the claim as to the defendant Digirolamo. The plaintiff argues that the special defenses are insufficiently pleaded and/or improper. The defendant filed a memorandum in opposition on August 28, 2017. The parties appeared at short calendar and argued the motion on August 28, 2017.
The plaintiff’s motion to strike is procedurally deficient on its face. The motion to strike fails to provide the grounds upon which the plaintiff is moving to strike the special defenses, as required by Practice Book § 10-39(b). To date, however, the defendant has not objected to the plaintiff’s motion on this ground and therefore, the deficiency is considered waived.
The defendant’s memorandum in opposition was not filed within the thirty-day requirement pursuant to Practice Book § 10-40(a) " [Although] there is no direct appellate authority on this issue, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike." (Internal quotation marks omitted.) LYS Global Technology, LLC v. Bonarrigo, Superior Court, judicial district of Hartford, Docket No. CV-15-6061764-S (May 13, 2016, Dubay, J.). " [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the [then existing] five-day requirement of § 10-42(b) [now 30 days pursuant to § 10-40(a) ]." (Internal quotation marks omitted.) McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S (May 27, 2010, Wilson, J.).
FACTUAL BACKGROUND
The plaintiff, Heather Kunkel, alleges in her complaint that on February 4, 2016, the plaintiff’s automobile sustained damage when the defendant’s motor vehicle negligently struck it. As a result of the collision the plaintiff’s automobile underwent repairs, and the plaintiff suffered a diminishment of value, loss of use, and other consequential damages to her automobile. The plaintiff seeks $4, 160 plus interest for the diminished value and $1, 457.57 for loss of use.
On May 15, the defendant filed an answer, whereby, he denies and leaves the plaintiff to her proof on all the allegations made against him. The defendant also asserts the following special defenses: (1) the plaintiff failed to properly mitigate her damages; (2) the continued passage of time since the accident is an intervening and/or superseding cause of any loss in value to her automobile; (3) the plaintiff’s continued use of the subject automobile is an intervening and/or superseding cause for any loss in value to the plaintiff’s automobile; (4) the plaintiff has not yet realized any loss to her automobile, and her claim is not yet ripe for adjudication; (5) the plaintiff has already recovered the cost of repairs and, therefore, is barred from recovering any diminishment of value; and (6) any improper repairs of the subject automobile is an intervening and/or superseding cause of any loss in value to the plaintiff’s automobile.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services, USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). The court construes the pleading in the light most favorable to sustaining its sufficiency. Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). All well pleaded facts and those facts necessarily implied by the allegations are taken as admitted. Id. Pleadings must be construed broadly and realistically, not narrowly and technically. Id.
" A [m]otion to [s]trike is the proper vehicle to use to attack the sufficiency of a special defense or cross claim." Nevers v. Trans Am Trucking, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-01-0384504-S (July 27, 2004, Dewey, J.). " Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause ... The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried ... Whether fact must be specifically pleaded ... depends on the nature of those facts in relation to the contested issues." (Citation omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). In ruling on a motion to strike a special defense, the court must " take the facts to be alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiff first moves to strike all six of the defendant’s special defenses on the ground that they are improper because they are premised on the measurement of damages. Specifically, the plaintiff argues that the measure of damages occurs at the time of the loss, which includes both the diminishment of value of the automobile and any repair costs. The defendant counters that the plaintiff can either recover the repair costs to her automobile or the diminishment of value to her automobile, but the plaintiff cannot recover on both.
The Supreme Court held that " [o]ur rule is that when the injury is less than a complete loss ... the measure of damages is the difference in value between the property before and after the loss, with interest from date of loss. [Nevertheless, ] when the property inured may be repaired, if the repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss." (Emphasis added; internal quotation marks omitted.) Littlejohn v. Elionsky, 130 Conn. 541, 543, 36 A.2d 52 (1944). Therefore, when damaged property is repaired, but not substantially restored to its former condition, the proper measure of damages reverts to the difference in value before and after the loss. See Stults v. Palmer, 141 Conn. 709, 712, 109 A.2d 592 (1954) (" the trial court could well have concluded, because the frame of the car had been sprung, that repairs would not have substantially restored the automobile to its former condition and that the owner was entitled to the difference between the fair market value of the car before the collision and its value after the collision, plus interest"); see also Alexander v. Bailey, Superior Court, judicial district of Hartford, Docket No. CV-11-5035320-S (March 18, 2013, Sheridan J.) (55 Conn. L. Rptr. 653) (" there is an issue of fact as to whether the vehicle has been substantially restored to its former condition").
In the present case, the plaintiff asserts that the measure of damages includes both the diminished value and repair costs. Pursuant to the preceding case law, however, the measure of damages could be calculated differently. Unlike Stults v. Palmer, supra, 141 Conn. 712, wherein the repairs costs alone did not provide the measure of damages because, despite undergoing repairs, the automobile was found to be unsafe for the roads, the plaintiff here does not make any allegations to the effect that repairs are insufficient to restore the automobile to its former condition. See also Castillo v. Johnson, Superior Court, judicial district of Waterbury, Docket No. CV 16-6030292-S (August 5, 2016, Brazzel-Massaro, J.) (62 Conn.L.Rptr. 775, 776) (denying motion to strike similar special defenses because plaintiff failed to plead fact indicating that repairs to automobile were insufficient). As the defendant correctly contends, the measure of damages may be cost of repairs only, provided that the automobile is substantially restored to its former condition. As the plaintiff fails to address why the repair costs are not the proper measure of damages in the present action, the motion on this ground is denied.
The plaintiff cites to two Superior Court cases, in addition to Alexander v. Bailey, supra, Superior Court, Docket No. CV-11-5035320, and asserts that these cases examined the exact issues before this court now and struck the special defenses; therefore, this court, similarly should strike the defendant’s special defenses. Not only is this analysis conclusory, but it lacks any substantive discussion regarding the applicability of such cases to the present action. Furthermore, other trial court decisions are not binding precedent on this court. See e.g. McDonald v. Rowe, 43 Conn.App. 39, 43, 682 A.2d 542 (1996) (" [t]rial court cases do not establish binding precedent"). To the extent that this court will review or find persuasive any trial court decisions, this court will refer to Castillo v. Johnson, supra, 62 Conn.L.Rptr. 776.
The plaintiff cites to Tolson v. Shanley, Superior Court, judicial district of Waterbury, Docket No. CV-15-6028414-S, (January 25, 2016, Roraback, J.) and Kim v. Velez, Superior Court, judicial district of Fairfield, Docket No. CV-15-6049618-S (March 1, 2016, Kamp, J.).
The plaintiff moves to strike all of the special defenses for insufficiency, but only addresses special defense number one for failure to mitigate damages. Therefore, the court will only address the insufficiency of special defense number one. See Connecticut Light & Power Co. v. Dept . of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (holding trial court " not required to review issues that have been improperly presented to [the] court through an inadequate brief" [internal quotation marks omitted]). The plaintiff argues that special defense number one is not supported by sufficient facts pursuant to Practice Book § § 10-1 and 10-50. The defendant counters that this court, Brazzel-Massaro, J., previously held that the same defenses, as those alleged here, were clear and sufficient so as to withstand a motion to strike.
There is a split in the Superior Court as to whether the special defense of mitigation of damages requires the specific pleading of supporting facts. The minority view requires that the mitigation of damages be pleaded with supporting " particularized facts to apprise the [c]ourt and other parties as to the nature of and basis for the specific defense asserted by [the] defendant." Zmarzlak v. Sanchez, Superior Court, judicial district of Fairfield, Docket No. CV-16-6058884-S (June 29, 2017, Krumeich, J.). The majority view, on the other hand, believes that " allegations of mitigation of damages is sufficient without supporting facts to charge an opposing party of the failure to mitigate as a defense." (Emphasis added; internal quotation marks omitted.) Beauty Enterprise, Inc. v. Left-Handed Libra, Superior Court, judicial district of Hartford, Docket No. CV-12-6031408-S (January 25, 2013, Wagner, J.T.R.) (55 Conn.L.Rptr. 376, 376); see Lemaire v. Farmington Ready Mix, Inc., Superior Court, judicial district of Litchfield, Docket N. CV-04-40000443-S (January 30, 2006, Pickard, J.) (" The defendant is not specifically required to plead the failure to mitigate damages ... The majority rule ... is that although the defendant need not specifically plead it, the defendant must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue" [internal quotation marks omitted]); see also Wasko v. Farley, 108 Conn.App. 156, 168, 947 A.2d 978, cert. denied, 289 Conn. 922, 985 A.2d 155 (2008) (affirming trial court’s ruling that " mitigation does not have to be specially pleaded because it is not listed among the defenses in Practice Book § 10-50 that need not be specially pleaded"); Crown Linen Service, Inc. v. Seacrest Retirement, LLC, Superior Court, judicial district of Hartford, Docket No. CV-0705010158-S (February 27, 2009, Bentivegna, J.) (" [T]he defendant assets that the plaintiff has a duty to mitigate its damages. The language used by the defendant sufficiently apprises the plaintiff and the court that it intends to argue mitigation as a defense ..."). Additionally, this court, Brazzel-Massaro, J., has followed the majority view and allowed a special defense of " mitigation of damages, " without requiring the pleading of any additional supporting facts, see Castillo v. Johnson, supra, 62 Conn.L.Rptr. 776 (" [a]lthough the plaintiff argues that the defendant has failed to provide sufficient fact in support of the special defenses for [mitigation of damages], the allegations are clear and sufficient in order to withstand a motion to strike").
" Those cases prohibiting mitigation of damages from being raised as a special defense base their decision on the fact that mitigation of damages is not among those special defenses listed in the Practice Book and on the ground that mitigation of damages fails to show that the plaintiff has no cause of action ... On the other hand, those decisions permitting mitigation of damages to be pleaded as a special defense reason that it should be allowed because it puts the plaintiff on notice that failure to mitigate will be an issue at trial." (Internal quotation marks omitted.) Whalen v. Gathoni, Superior Court, judicial district of New Haven, Docket No. CV-07-5012497-S (February 8, 2010, Wilson, J.). Nevertheless, " [t]he majority of recent Superior Court cases have approved the use of a special defense to plead mitigation." (Internal quotation marks omitted.) Id. Thus, this court will consider a special defense of mitigation of damages. See Castillo v. Johnson, supra, 62 Conn.L.Rptr. 776.
Thus, consistent with the previous findings this court follows the majority view that a special defense of mitigation of damages need not be pleaded with particularity. The defendant’s special defense number one is sufficiently pleaded to withstand a motion to strike. The plaintiff’s motion to strike the special defense number one is denied.
The final argument of the plaintiff is a motion to strike special defense number six which provides that " [a]ny improper repairs of the subject [automobile] is an intervening and/or superseding cause of any loss in value to the plaintiff’s [automobile]." The plaintiff argues that this special defense should be stricken on the ground that Connecticut has abolished the doctrine of superseding causation in negligence actions. The defendant counters that, given the facts of the case, he should be allowed to bring this special defense.
In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 436, 820 A.2d 258 (2003), our Supreme Court elected to abandon the doctrine of superseding cause because it found it no longer useful " when a defendant claims that a subsequent negligent act by a third party cuts off its own liability for the plaintiff’s injuries." The court expressly noted, however, that its conclusion does not affect " cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes his tortious conduct." (Emphasis added.) Id., 439 n.16. In other words, " an intervening intentional or criminal act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant’s conduct or where the intervening act is reasonably foreseeable ... As a general rule, the act of a third person in committing an intentional act or crime is a superseding cause of harm to another resulting therefrom ... In such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him." (Internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn.App. 12, 17, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000).
In the present case, the defendant fails to allege any facts in the special defense number six that fit within the narrow exception articulated in Barry v. Quality Steel Products, Inc., supra, 263 Conn. 436-37. Specifically, the defendant’s allegation on its face does not assert that an " unforeseeable, intentional force of nature, or criminal event supersedes" the defendant’s negligent tortious conduct. Accordingly, the plaintiff’s motion to strike the defendant’s special defense number six is granted on this ground.
CONCLUSION
For the foregoing, the court denies the plaintiff’s motion to strike the defendant’s special defenses number one through five, and the court grants the plaintiff’s motion to strike the defendant’s special defense number six.