Opinion
No. CV02-0078039S
June 15, 2004
MEMORANDUM OF DECISION
The plaintiffs, Kendra and Gary Montano, are homeowners in Milford, Connecticut. During the course of their married lives they accumulated, through earnings, investments and inheritance, an impressive collection of jewelry, artifacts and coins. They kept much of this in their home.
On August 24, 2001, the defendant, Joseph Anastasio, broke into the plaintiffs' home and stole valuables and jewelry belonging to them. Then, on August 27, 2001, the defendant returned to the plaintiffs' residence to steal a safe containing more valuables and jewelry. In the process of removing the safe, the defendant caused $1,500 worth of damage to the interior of the home. The defendant was ultimately apprehended, arrested, convicted and sentenced for Burglary and Larceny. He is serving his seven-year sentence, now.
The plaintiffs bring this action on their behalf and on the behalf of their child, Christian, asserting two claims against defendant Anastasio: conversion and statutory theft. In addition, Gloria Montano, Gary Montano's mother, is a party to this action. "`Statutory theft under section 52-564 is synonymous with larceny under General Statutes 53a-119.' Suarez-Negrete v. Trotta, supra 520-21; Discover Leasing, Inc., v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993), citing Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 39 (1987). `Pursuant to section 53a-119 [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.' By comparison, `conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights' . . . In addition, conversion requires that the owner be harmed as a result of the unauthorized act . . ." Patel v. Dale Construction, Superior Court, judicial district of New Haven, Docket No. 030482221 (April 24, 2004, Arnold, J.). It is sufficient to establish the requisite harm under the conversion cause of action, to establish that the defendant deprived the plaintiff of items of value. See, e.g. Discovery Leasing Co. v. Murphy, supra at 310-11. (The Appellate Court held that harm from a conversion was established by evidence that the defendant had deprived the plaintiff of its funds for five to seven months.)
The court finds that the plaintiffs have proven their claims against defendant Anastasio. They proved conversion by a fair preponderance of the evidence; and statutory theft by clear and convincing evidence. The uncontradicted facts establish that Joseph Anastasio entered the plaintiffs' residence without authorization and intentionally took their personal property. The evidence also establishes that the defendant Anastasio withheld the personal property from the plaintiffs, though he was not authorized to do so and gave the property to a third party. Eventually, the plaintiffs retrieved a small portion of the items stolen, but they were deprived of the use and enjoyment of all of it for a period of time; and for most of it, permanently.
Having proven conversion and statutory theft by the requisite standards, the court finds in favor of the plaintiffs on the issue of liability on these two counts.
Before turning to the discussion of damages, this court observes that just as the defendant, Joseph Anastasio, is serving a sentence, the plaintiffs are serving a sentence of their own, living with the haunting memory of the items they will never see again, items of which they were robbed, some, though relatively modest in monetary value, were priceless as family heirlooms dating back decades. The plaintiffs were robbed. But, the robbery was of more than tangible belongings. The plaintiffs were robbed of their right to enjoy the fruits of their labor. They were robbed of their right to luxuriate in the manifestations of their fulfilled dreams. And, they were robbed of their right to be the beneficiaries of the legacy left to them by their ancestors. Theirs is a sentence of unfulfilled longing for the sentimental tokens that insurance proceeds and compensatory and/or punitive damages can never reduce. In time, the plaintiffs may find peace, as they come to terms with what happened to them. In time, they may even accept their losses. But, this court has no doubt that the losses, though amenable to compensation, are in truth, of things which are irreplaceable.
This court cannot undo or reduce the suffering associated with the losses. Nor does this court make an award for such, because the plaintiffs withdrew their claims of Intentional Infliction of Emotional Distress. All that is available, under the law, in light of the court's findings, is an award of damages for the monetary losses.
Regarding those losses, according to plaintiffs' Trial Brief, the parties reached an agreement that the total value of all of the items which were stolen is $101,380.65. Also, there is no dispute that the plaintiffs received $71,237 from their insurance carrier as a result of the theft of their property. Finally, the parties agree that the plaintiffs were returned items valuing $8,995.
The plaintiffs argue that they are entitled, under General Statutes, section 52-564, to treble damages for the losses they sustained as a result of defendant Anastasio's theft of their property. They argue that they are entitled to the full amount of the value of all of the items which were stolen multiplied by three and then subtracted by $8,995. Therefore, the plaintiffs claim that they are entitled to an award of $296,646.95. ($101,380.65 × 3 — $8,995 = $296,646.95.)
The defendant, on the other hand, argues that the plaintiffs are entitled only to their out-of-pocket monetary losses which total $22,648.65. The defendant claims that the collateral source statute, General Statute, Section 52-225a, provides for a reduction of the total award to the plaintiffs by the amount they received in insurance proceeds. Further, the defendant argues that because he was under the influence of drugs at the time he committed the crimes, the plaintiffs should not receive treble damages pursuant to General Statute, Section 52-564.
First, addressing the defendant's collateral source argument, upon review of the collateral source statute, this court concludes that it is inapplicable to the instant case. Section 52-225a provides that:
In any civil action, whether in tort or contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death . . . or (2) personal injury or wrongful death arising out of the rendition of professional services by a health care provider . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the c1aimant, the court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (c) of this section, except there shall be no reduction for (1) collateral source for which a right of subrogation exists . . ."
Section 52-225b defines "collateral sources" as: "Any payments made to the claimant, or on his behalf by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant . . . (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services . . .
This is not an action seeking compensation for personal injury or wrongful death. The plaintiffs make no claims for bodily or emotional injuries, only for monetary losses. Notably, though the original complaint asserted two counts for Intentional Infliction of Emotional Distress, those claims were abandoned at trial, and the plaintiffs proceeded exclusively on their causes of actions asserting conversion and statutory theft. Further, the defendant's argument that the principles outlined in Section 52-225a are applicable in this case fails because, in the instant matter, the Travelers Insurance Company joined as a party-plaintiff to assert a claim for subrogation for the money that it paid to the plaintiffs for their losses. Accordingly, the collateral source statute is not relevant to these proceedings.
Addressing the defendant's second argument, that treble damages are not appropriate in this case because defendant Anastasio was under the influence of drugs at the time he committed the wrongful acts, this argument lacks merit. First, the defendant has provided no legal authority for his bald assertion. Second, the fact that Mr. Anastasio was under the influence of drugs is no more determinative of the outcome in this forum than it was to his criminal conviction. Why would this fact allow the defendant to escape the full effect of his civil liability, with its lesser standard of proof, but not criminal liability?
The court finds that the plaintiffs are entitled to a treble damage award for their losses as a result of the statutory theft. This award is calculated as follows. The court starts with $101,380.65 as the total value of the items stolen by defendant Anastasio. The court then deducts $8,995, the value of the items that were returned to the plaintiff, from the total amount of the loss. This results in a total loss amount of $92,384.65. Finally, the court multiplies the total amount of the loss, $92,384.65, times three. The amount of the treble damages is $277,156.95.
For the foregoing reason, judgment should be entered for the plaintiffs against defendant Anastasio on the causes of actions asserting conversion and statutory theft; and damages are awarded in the amount of $277,156.95.
Robinson, J.