Opinion
No. CV 07-501195S
February 25, 2010
MEMORANDUM OF DECISION
This is an action for various types of economic loss pursuant to § 52-39a of the General Statutes. The plaintiff was a city police officer who was arrested on a variety of charges in February 2003. He was acquitted of all the charges after a jury trial on October 19, 2006. The defendant filed a Motion to Dismiss which the Court indicated it would deny and a court trial was then held.
For the reasons set forth in a memorandum to be filed along with this decision the Court has concluded it has subject matter jurisdiction of the claims made by the plaintiff under Section 53-39a of the General Statutes. In certain respects that issue is intertwined with any rights to a monetary award under the statute. The issues presented are complicated and have been fully briefed by able lawyers and extensively argued.
The statute reads as follows:
§ 53-39a. Indemnification of State Police, state capitol police, certain special police and local police
Whenever, in any prosecution of an officer of the Division of State Police within the Department of Public Safety, or a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol Building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Joint Committee on Legislative Management, or a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred. Such officer may bring an action in the Superior Court against such employing governmental unit to enforce the provisions of this section.
1
(a)
The Court will discuss relevant principles of statutory construction intertwined as they are with how the Court believes this statute should be applied to the facts before it and try to ascertain what § 53-39a actually means.
In Rawlings v. New Haven, 206 Conn. 100 (1988), the court interpreted language in the statute and set forth general guidelines, for statutory interpretation — the language of the statute must be examined of course, its legislative history and previous judicial construction must be looked at," id. page 105. Noting that § 53-39a is in derogation of common law the court said "statutes that abrogate or modify governmental community are to be strictly construed" so as to ensure that a statute like § 53-39a is not "extended, modified, repealed or enlarged in its scope by the mechanics of construction," id., also see Cislo v. Shelton, 240 Conn. 590, 598 (1997), cf cases not interpreting § 53-39a but setting forth same principle, Vitanza v. Upjohn Co., 257 Conn. 365, 381 (2001); Spears v. Garcia, 263 Conn. 22, 28 (2003).
Another principle of statutory interpretation that can be resorted to by the courts is that the meaning of a statute can be decided by its relationship to other statutes or the language used in other statutes. In fact in Link v. Shelton, 186 Conn. 623, 627 (1982), the court referred to workers' compensation statutes to interpret "in the course of duty" language in § 53-39a though the statutes are, of course, completely unrelated.
A qualification of the so-called "plain meaning" rule of statutory interpretation must also be kept in mind. In response to State v. Corchesne, 262 Conn. 537 (2003), the legislature passed § 1-2z of the general statutes which says that "the meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable requests extra textual evidence of the meaning of the statute shall not be considered." This purportedly adopts the traditional plain meaning rule which was set forth in Corchesne, id. at pp 568-89.
(b)
Applying the foregoing principles what can be said about the meaning of this statute.
First let us look at the language. It seems clear that an officer acquitted of a crime is to be indemnified (of which more later) for economic loss sustained by him (or her) as a result of such prosecution" (prosecution of the crime of which the officer was acquitted). Unless the statute were to be held as completely meaningless the plain meaning suggests that at least as to attorneys fees if they arose out of a prosecution the officer who has received an acquittal is entitled to them.
What about other loss such as that claimed here — wages, overtime, etc. The defendant's position is clear and well stated as to these types of claim. At one point in a post-trial brief it is argued: "what the legislature sought to ameliorate by enacting Section 53-39a was this unique exposure of police officers. Prior to the statute's enactment, police officers had no way of recouping their (successful) criminal defense expenses including defense counsel fees. Section 53-39a gave them that. There was no need for the legislature to deal with challenges to suspensions or terminations of police officers, as avenues for these already existed." Collective bargaining statutes are then referred to specifically § 7-466 et seq. This is consistent with a position advanced a few pages earlier; "Defendant has urged this court to dismiss the portion of this case that is dependent upon the interpretation of the collective bargaining agreement."
Federal case law is cited known as the Steelworkers Trilogy which evinces a strong public policy in favor of resolving labor disputes such as the monetary consequences of suspension and termination though arbitration and grievance procedures such as those being pursued here while this civil case has been going on, see United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 564 (1960); and United Steelworkers v. Enterprise Wheel 2 Car Corp., 363 U.S. 593 (1960). An interesting point is made by comparing the state appeal process under Section 4-183 and applications to vacate arbitration awards under section 52-418 which provides only for limited review. Simply put ". . . court will not review the evidence considered by arbitrators . . . nor where the submission is unrestricted, will they review the arbitrator's decision of the legal questions." Myers v. Lakendge Development Co., 173 Conn 133, 135 (1977).
There are difficulties with this argument, however. Which part of the claims being discussed really involve an "interpretation" of CBA provisions as opposed to a mechanical application of contract provisions based on time lost from work due to suspension? There is even a larger problem — the language of the statute itself. To repeat section 53-39a talks about indemnification for "economic loss sustained (by the officer) as a result of such prosecution, including the payment of legal fees necessarily incurred." A common sense interpretation of the underlined language indicates that legal fees are a subset of other types of economic loss — why else use the word "including?" This is the "plain meaning" of the statute to coin a phrase. The defendant offers no explanation of what "economic loss," which are attorneys fees that part of it that are incurred could mean other than wages, overtime, etc.
Nothing in the statutory scheme appears to contradict the foregoing position that economic loss apart from attorneys fees may be proved under § 53-39a. In fact Section 31-51bb explicitly contemplates that the existence of a CBA will not bar the bringing of an action under a State Statute. It reads as follows, nicely referring to the invitation in the last sentence of § 53-39a to allow suit in Superior Court.
§ 31-51bb. Right of employee to pursue cause of action.
No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
Genovese v. Gallo Wine Merchants, 226 Conn 475 (1993), reviews the genesis of this statute and if read closely recognizes the trial judge entertaining a statutory suit referred to in § 31-51bb would in some measure be interpreting a CBA, its provisions, and applications.
At the risk of repetitiveness what else could a judge do, even reading § 53-39a alone, if the judge has to decide economic loss issues above and beyond attorneys fees which are not covered by collective bargaining agreements in the first place? Taking the defendant's position at face value the only interpretation of the statute that would make sense is to conclude that § 53-39a provides non-attorney economic loss relief to police officers not covered by collective bargaining agreements. This does not conform to Connecticut reality which the legislature must be taken to have been aware of and does not explain the broad language of § 31-51bb in light of the broad purposes of § 53-39a.
In any event doctrines like strict interpretations of statutes because a government entity is involved or the inviolability of collective bargaining agreements should not be applied in such a way as to defeat the purposes which was the object of the legislation in the first place. Besides as noted in Genovese a worker may very well have good reason to prefer court action as opposed to just relying on grievance procedure, 226 Conn. at page 490.
There is, however, one difficulty perhaps with the court's analysis that must be addressed before this section of the decision is concluded. We have a statute, Section 31-72 which states a relevant part:
§ 31-72. Civil action to collect wage claim, fringe benefit claim or arbitration award
When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.
Section 31-51bb became effective October 1, 1988 but a case interpreting — 31-72, Shortt v. New Milford Police Department, 212 Conn. 294 (1989), was decided in July 1989. The Court in Shortt held that the Appellate Court erred in determining § 31-72 the plaintiff could pursue an action under the statute without first establishing his entitlement to uncollected wages through grievance procedures under the collective bargaining agreement. The Court ruled against the plaintiff holding § 31-72 is a "remedial statute." In other words "it merely provides an enhanced remedy for the collection of wages." It does not embody substantive standards to determine the amount of wages that are payable but provides penalties in order to deter employer from deferring wage payments once they have accrued. Section 31-72 is, therefore a remedial statute rather than one creating independent substantive rights," 212 Conn. at page 309. In footnote 12 referring to "enhanced remedy" the court said in a successful civil action under § 31-72 a plaintiff can collect twice the wages due and costs and attorneys fees as allowed by the court. The question becomes why could not the same reasoning apply to § 53-39a? Is it too a "remedial" statute not subject to the type of statutory action referred to in § 31-51bb? The analogy of § 31-72 to § 53-39a is not a perfect one. The latter statute is not remedial in that it can hardly be viewed as deterring cites from criminal prosecution since they do not initiate and continue them. The right to attorneys fees under § 53-39a is not some adjunct to the right to recover past wages which some trial court acting as it would under § 31-72 can give or not give or give in an amount deemed "reasonable" apart from the fee actually incurred. Certainly the right to attorneys fees under § 53-39a is a substantive right which are incurred to as long as the requirements of § 53-39a are met. Then what do we have, a statute that gives an immediate right to pursue attorneys fees but requires the officer to wait before pursuing a civil action for economic loss referred to in § 53-39a of which attorneys fees are only a part? And how would that make sense in any event? The legislature through the mechanism of § 53-39a provided an action for economic loss of which attorneys are only a part. If a court has to read the terms of a collective bargaining agreement to award economic loss that seems to be dictated by statutory language. Section 31-51bb envisages a statutory cause of action which would otherwise require application of a collective bargaining agreement or why have the statute at all. The second sentence just puts a limit on the ambit of the statute making clear that it does not generally authorize actions for breach of a collective bargaining agreement.
In deciding whether § 53-39a creates a substantive right to an economic loss claim it might be worthwhile to quote from McKeithen v. Stamford, 149 Conn. 619, 621 (1962), which referred to two cases, one decided in 1928, the other in 1915. In McKeithen the court said: "It is the general rule, both in Connecticut and elsewhere, that in the absence of specific statutory provision to the contrary, "where a public officer is wrongfully suspended or expelled, he is entitled to recover the salary accruing during the period he is thus unlawfully removed from his office." McDermott v. New Haven, 107 Conn. 451, 453. As pointed out in the McDermott case, [p]olice officers of . . . [a] city are public officers . . . [and the] salary provided by law for a public officer does not arise out of contract and is not dependent on the amount and value of the services rendered, but it belongs to him because the law attaches it to the office he holds. Sibley v. State, 89 Conn. 682, 685."
These older cases were written at a time during which, one might speculate, collective bargaining agreements to protect workers were not yet in vogue.
Another complication must be addressed in this general section. The statute uses the word indemnified and the spectre of indemnity law with all its complexities is raised. The defendant refers to Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142 (2002), which interpreted an indemnity provision in a commercial contract. It said at page 149:
Specifically, the concept of indemnity usually involves an indemnitor, A, and an indemnitee, B, who enter into a contract whereby A agrees to indemnify B for any money B becomes legally obligated to pay to a third party. In interpreting indemnity agreements, we frequently have distinguished between agreements that indemnify against loss and agreements that indemnify against liability. Both types of agreements, however, protect the indemnitee against claims asserted by third parties against the indemnitee. "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 . . . Whe[n] an 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.
Also see Balboa Ins. Co. v. Zaleski, 12 Conn.App. 529 (1987).
What does all of that have to do with an interpretation of this statute? Does the concept' apply to attorneys fees? It might since this is an obligation owed to a third party but what does it have to do with reimbursement for economic loss apart from attorneys fees?
As to attorneys fees the defendant may not want to push formal indemnity law too far. In 42 CJS "Indemnity" at Section 30, page 108 it says:
An indemnitor is liable for attorney fees whether the defense is successful or not; and it is not necessary that an indemnitee have paid legal fees in order to recover them under an indemnity clause; it is necessary only that they have been incurred, in which case the indemnitor may be required to pay them directly to the attorney. Furthermore, where an indemnitor has assumed all responsibility for claims, an indemnitee is entitled to attorney fees and expenses whether or not it ultimately sustained actual damages.
But to leave the complexities behind again a strict indemnity argument is really being used to, in effect, amend the statutory language to confine its operation to the award of attorneys fees merely because of the use of the word "indemnified." But indemnity has a much broader meaning than would be suggested specific definitions on contract law and adopting that meaning makes the statute internally consistent. In the 41 Am.Jur.2d article on "Indemnity" at section 1, page 415 it says:
Stated simply, indemnity is an obligation by one party to make another whole for a loss that the other party has incurred. In general, indemnity is a form of compensation in which a first party is liable to pay a second party for a loss or damage the second party incurs to a third party. Indemnification is a form of restitution. Indemnity in its most basic sense means reimbursement and may lie when one party discharges a liability which another rightfully should have assumed, and it is based on the principle that everyone is responsible for his or her own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. It should be noted that the term "indemnity" encompasses any duty to pay for another's loss or damage and is not limited to reimbursement of a thirty-party claim.
In fact the first definition in Black's Law Dictionary of "Indemnity" is simply "1. A duty to make good any loss, damage or liability incurred by another."
(2)
Turning to the issues raised by this case, the first issue that must be addressed is whether by its own terms Section 53-39a it applies at all. The statute says a police officer must be indemnified for economic loss including legal fees necessarily incurred which are the result of the officer's prosecution for an offense or offenses concerning which he or she was acquitted by way of dismissal or not guilty verdict. A prosecution begins with an arrest so the question becomes did the economic loss come about as a result of the arrest and ensuing prosecution.
The plaintiff was arrested on February 25, 2003; on the same date the Hartford Chief of Police wrote the plaintiff a letter. The letter reads as follows:
Dear Officer Murtha:
On February 25, 2003 you were arrested by the Hartford Police Department and charged with Assault in the First Degree, Tampering With or Falsifying Physical Evidence and Falsely Reporting an Incident in the Second Degree.
The conduct that led to your arrest causes me grave concern about your ability to perform your job and reflects negatively on the Hartford Police Department. I am suspending you without pay pending the outcome of this matter through administrative procedures.
You are to surrender your Hartford Police Department identification card, issued service weapon, magazines and ammunition, your badge and hat piece, POSTC certification card, key card and portable radio to your commander immediately.
The Department Advocate will make himself available to you or your counsel to discuss these charges and provide additional information that you feel may be necessary to your defense. The investigation into this incident may result in further disciplinary action being taken against you. You should feel free to seek union representation.
Officer Murtha was suspended on the very date of his arrest.
It seems clear to the court at least that the plaintiff was being suspended because of his arrest. The chief himself makes a distinction between his act of suspension without pay and any result that may be achieved towards this end and "pending the outcome of this matter through administrative procedures." The chief was acting and could only act in suspending the plaintiff without pay pursuant to the CBA which in an appendix setting forth employee rights states in paragraph 6(a):
6(a) No officer shall be suspended without pay until a disciplinary hearing has been conducted except as provided in Paragraphs (b) and (c) below or unless he or she has been arrested for a felony, a sexual offense and/or a crime of larceny under the Connecticut Penal Code.
Subparagraphs (b) and (c) are not applicable.
The language of the CBA makes clear that to achieve the result of a suspension without pay two mechanisms exist (1) a disciplinary hearing or (2) suspension by the chief upon arrest for a felony — the only applicable provision of paragraph 6(a) of the appendix to the CBA. An affidavit submitted by Coleen Kenton, the City Human Rights Manager, indicated that on October 18, 2004 "an impartial hearing officer recommended that both charges be sustained, Officer Murtha was terminated effective November 16, 2004." In other words from February 25, 2003 to November 16, 2004 Officer Murtha was suspended without pay solely because of the actions of the Chief in suspending him the day of his arrest — no other action under the CBA to achieve this result would appear to be necessary. Ms. Kenton's testimony confirms this conclusion. Or to put it more exactly the felony arrest would appear to be the only basis for the suspension without a disciplinary hearing or other hearing under the CBA.
In the court's opinion the predicate to the application of the statute has been met.
(3)
Damages
The court will now discuss the various damage claims made in this case. It will first discuss the respective claims for attorneys fees by Attorney Keefe and Attorney Georgetti after some general comments.
Attorneys Fees
A.
(1)
Section 53-39a provides that if an officer is found not guilty of a crime with which he is charged he shall be indemnified by his employer, here the city, "for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred." (Emphasis by court.)
Again, as previously discussed, the statutory language is confusing. The court relies on its earlier discussion of the meaning of indemnity or indemnification. It is difficult to analyze the statute in classic indemnification terms such as with contract clauses providing for it — the city cannot be said to be responsible for causing the imposition of attorney fees. But the primary difficulty is the conjunction of the phrases "economic loss" with "necessarily incurred". "Economic loss," if it means anything, at least implies an obligation to pay the attorney for the services rendered in securing the acquittal. Thus in Cislo v. Shelton, 240 Conn. 590, 598 (1997), in discussing § 53-39a said: "The general purpose of the statute is to permit police officers to recoup the necessary expenses that they have incurred in defending themselves against unwarranted criminal charges arising out of their conduct in the course of their employment;" see also Santana v. Hartford, 94 Conn.App. 445, 450-51 (2006), quoting Cislo to the foregoing effect. In Rawling v. New Haven, 206 Conn. 100 (1988), the court said: "An officer who is accused of committing a crime arguably within the course of duty will necessarily suffer a financial hardship in mounting an adequate defense. When the prosecution results in a dismissal or an acquittal, the legislature might reasonably have concluded that an officer should not be required to shoulder the costs of defense for conduct that solely benefited his or her employer," Id. page 112.
On the one hand it can be said that given the purpose of the statute it would lead to an absurd result to say that an officer who is acquitted can only receive reimbursement for monies he or she actually paid out for legal fees in the criminal prosecution. The use of the word "incurred" leads to a similar conclusion. Webster's New International Dictionary defines "incur" in relevant terms as "become liable or subject to: bring down upon oneself incurred large debts to educate his (sic) children." Random House Dictionary defines "incur" as: "to incur a mountain of debts." How can the legislature be assumed to have made a rationally supportable distinction between officers who have already paid their attorneys and those who have not yet done so because of their financial circumstances, if the purpose of the statute is to assist officers with the financial hardship of going through a prosecution? For the court at least to ask the question provides the answer.
But as discussed there must be an obligation to pay for the attorneys fees if indemnify in its broad sense is to have any meaning, juxtaposed as it is with the words "economic loss" of which it is a subset.
The court will discuss the claims regarding each attorney separately although some of the general comments and facts apply to both.
(2)
As to Mr. Murtha's claim for an attorneys fee regarding Attorney Hugh Keefe the initial question, pursuant to the foregoing analysis, is was there an understanding between Mr. Murtha and Attorney Keefe that Murtha was himself incurring a fee for services. Exhibit 23 is a letter from the lawyer to Murtha setting forth the fee agreement. The court will quote it in full:
Dear Rob:
This will confirm our conversation in my office on 12/2/05 in the above-captioned case in which you are charged with Assault 1, Fabricating Physical Evidence and Falsely Reporting an Incident. I indicated to you would agree to represent you in the trial of this case along with Attorney Michael Giorgetti of Hartford. That agreement is subject to the following terms and conditions:
1. As I understand it, it is agreed that I would be the lead lawyer at trial.
2. Scheduling. I told you I am scheduled to start a federal criminal trial ( U.S. v. Autorino) in the United States District Court in New Haven before Judge Burns on 1/10/06 and that will probably last one month. I will then need time to prepare for your trial and will also have to postpone any other conflicts I have. Thus, realistically I would not expect to be available and prepared to try your case until late spring.
3. Fee. As you know, if you are acquitted of the charges or dismissed, the City of Hartford is responsible for your legal fees. If you are convicted of anything, the city is not responsible. Even if they pay, it generally at a reduced fee. Accordingly, I would charge you a $20,000.00 non-refundable retainer.
If the above conditions are acceptable to you, please sign in the space provided below and return the original to me along with the retainer in the enclosed envelope. A copy is enclosed for your records. I will file an appearance at that time on your behalf.
Very truly yours,
Hugh F. Keefe
I have read the above and it accurately sets forth the fee agreement.
12/6/2005
Robert A. Murtha Date
The American Heritage Dictionary defines fee (noun) as "1a. A charge fixed by an institution or by law; tuition fees; the fee for a fishing license. b. any fixed charge. 2. A payment for professional or special service: a tax consultant's fee. 3. A tip; gratuity" (other definitions concern estates in land. Random House Webster's Unabridged Dictionary defines fee (noun) as "1. A charge or payment for professional services: a doctor's fee. 2. a sum paid or charged for a privilege: an admission fee. 3. a charge allowed by law for the services of a public officer; 4. (defining estates, in land and how held). 5. a gratuity, tip. (Emphasis by court.)"
If we view the Keefe-Murtha letter as a contract between them then ordinary rules of contract interpretation would apply. In Conn. Properties TriTown Plaza, LLC v. Seymour Cinema, Inc., 84 Conn.App. 569, CT Page 3184 577 (2004), the court said that: "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms."
The meaning of fee is clear; both Mr. Murtha and Attorney Keefe appear conversant with the ordinary meaning of the English language. If there is no ambiguity that between Murtha and Keefe inter se the former assumed an obligation to the latter how can one be created now for the purposes of this litigation. Or to look at the problem from another perspective there seems to be no question that based on this agreement the attorney could have brought an action against Murtha based on an incurred legal fee.
The foregoing analysis is also supported by the very fact that the word retainer is used. In 7 Am.Jur.2d "attorneys at Law" at § 249 it says: "a `true retainer,' also known as a `general retainer' is paid by the client to the lawyer to secure the lawyer's availability during a specified period of time or for a specified matter," page 299. But a retainer does not represent the total lawyer fee — "an agreement of general retainer for a fixed period is like any other contract and, on its breach the attorney is not limited to quantum meruit but may sue for the contract sum. In Black's Law Dictionary two of the relevant definitions of retainer are "3. a lump sum fee paid by the client to engage a lawyer at the outset of a matter 4. An advance payment of fees for work that the lawyer will perform in the future. The work "retainer," however has been used in so many different ways standing alone it is not much assistance to the analysis, but juxtaposed with the word fee, as it is used in the letter Attorney Keefe wrote to Mr. Murtha, it is at the least clear the attorney did not contemplate that the retainer would represent full payment for his sources.
But arguably the foregoing does not solve the problem (assuming the parol evidence rule can be ignored that is on the basis of ambiguity.) In other words it is clear from the letter that it was counsel's expectation and thus Murtha's, because it must be assumed he read the fee agreement before he signed it, that if he were to be acquitted the city would be responsible for Mr. Murtha's legal fees but at a "reduced rate." The latter seems to be the whole point of the so-called $20,000 retainer — apparently to accommodate the reduction the city would demand in the fee before paying anything.
The immediately foregoing observations reflect the defendant city's argument. At trial the able lawyer for the city argued ". . . if Murtha never obligated himself to pay . . . Attorney Keefe more than $20,000 then that is all the city is obligated to pay."
In this regard the court has examined the letter purporting to set forth the fee agreement. Can it go further and consider the testimony of Attorney Keefe and Mr. Murtha at the trial of this case? Is there a parol evidence problem? Does this letter speak for itself to use the usual rubric? The court cannot say that the letter is unambiguous for the reasons just discussed. In Averill v. Sawyer, 62 Conn. 560, 568 (1893), the court said that: "The rule which prohibits the introduction of parol evidence to contradict, vary or explain a written agreement, except in a case of latent ambiguity," cf Consolidated Plan of Conn. v. Bonitatibus, 130 Conn. 199, 203 (1943). This is still our law, Miller v. Guimaraes, 78 Conn.App. 760, 770 (2003), as it is the law throughout the states 29A Am.Jur.2d, "Evidence," § 1104, § 1112.
But it can be further argued that despite the use in the letter of the word "fee," "your legal fees" and "fee agreement" it was brought out at trial that Attorney Keefe never sent Murtha a bill for services. He sent a request to be paid his legal fees pursuant to § 53-39a to the defendant's corporation counsel; the letter itself does not indicate it was copied to Mr. Murtha but Attorney Keefe indicated it was his practice to do so. At trial of this matter the basic thrust of the lawyer's testimony was that, given the nature of the fee that would be generated by a case like this, a police officer like Murtha would never be able to pay it given a police officer's salary and the fact that in this case Murtha was suspended without pay the day of his arrest. Mr. Murtha it should be noted had to hire counsel not only to address the arrest but also the suspension and termination through the grievance procedure — not to be unexpected in a case of this type.
Attorney Keefe did say facetiously that Mr. Murtha would be able to pay him and thus fulfill his obligation to do so only if won the lottery. But Attorney Keefe did explicitly testify that he believed Murtha was obligated to pay his legal fee but that he could not.
All of this is the reality of the situation in a case where an officer is charged with serious crimes that have to be tried who lives on a limited salary and who very well may have been suspended.
Mr. Murtha testified that he realized he was accruing bills for the attorneys' services but "since I was suspended without pay, I would likely not be able to pay those bills." He was confident in his case and was comforted by the fact that the statute provided the bills would be paid despite knowing he was accruing a "large legal bill." He also testified that he never thought "for one second that if I lost the case and, you know, went to prison I would no longer be responsible for the bills . . ." (as to both attorneys.) Mr. Murtha did testify he did not receive bills from Attorney Keefe but did say when talking to Attorney Georgetti the latter made him aware of the tally which the court took to mean the accruing bills.
The court concludes that there was an obligation for fees assumed by Mr. Murtha regarding the legal bills Attorney Keefe incurred in the defense provided to Mr. Murtha. At the same time, as noted, there was a recognition by both parties of the difficulty and even inability to pay for these services. That factor should not bar application of the statute. Any other result would force an attorney to engage in a charade of having to send constant bills to police officer involved with perhaps — for safety's sake — no mention of § 53-39a despite a realization that the officer had no income or assets. Perhaps the lawyer "to protect" him or herself will have to initiate litigation against the acquitted officer to fine tune his eventual claim against the city under § 53-39a. Lawyers would be discouraged from taking these cases especially experienced criminal defense lawyers who might otherwise have an excellent record for securing acquittals no matter what the prospective client's occupation.
(3)
The Court will now determine the amount of compensation due Attorney Keefe meaning, as the statute says "any legal fees necessarily incurred."
When can it be said that fees are "necessarily" incurred. It seems to the court that fees are necessarily incurred if they reflect the reasonable value of the lawyer's services. This observation is true, whether the statute under which account acts as to attorneys fees is an indemnity statute or not. If a municipality is involved "necessary" should be equated with reasonable to protect a city from unjustified billings. Very generally speaking an attorney cannot be awarded attorneys fees where he or she does not carry the burden of proving the need for and value of the services, Sand v. Lammers, 540 NYS2d 876, 877 (2d Dept, 1989). It is difficult to see what other standard can be applied in interpreting this statue. To determine the reasonable value of attorney services the case of Johnson v. Georgia Highway, 488 F.2d 714 (CA5, 1974), is often cited. The case of Blanchard v. Bergeron, 489 U.S. 87, 94 (1988), discussed how the Johnson test is to be applied. There the court said:
The initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors . . . the Johnson factors may be relevant in adjusting the lodestar amount but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation. Laudano, at 58 Conn.App. 822-23, quote from Blanchard at 489 U.S. 94.
In this case both attorneys submitted detailed itemized invoices setting forth their fees, hours spent and what the time was spent on. What then are the Johnson factors. They are set forth at 488 F.2d pp. 717 through 719 where they and their application are discussed. The twelve factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
This lodestar test has not just been applied to civil rights, environmental statutes, and similar type statutes. It has been applied to CUTPA claims, see Stager v. J.S. Builders, 39 Conn.App. 32, 39 (1995). Florida courts for example apply the lodestar federal test whenever there is a need to determine reasonable attorney fees, Florida Patient's Compensation Fund v. Rowe, 472 SO2d 1145, 1150 (Fla., 1985). Also see generally discussion in 7 Am.Jur.2d "Attorneys at Law." §§ 286 et seq.
In applying the Johnson test to the determination of the attorneys fees to be awarded under section 53-39a the court examined all twelve factors as they applied to both Attorney Keefe and Attorney Georgetti. It has reviewed their CVs, their testimony at this trial and the affidavits submitted by an experience, well known, and respected criminal defense lawyer, William Dow. The Court will review the Johnson factors seriatim and would note that much of the following discussion applies to the issue of Attorney Georgetti's fee.
(1) Time and Labor Required
Each lawyer has provided the Court with a detailed listing of all the hours they spent on the case prior to and during the trial. No evidence or argument was raised that any of these claimed hours or services were in fact not performed. The trial lasted six weeks and there were 27 witnesses who testified. The documents setting forth the time spent on each task are detailed, thorough, and appear reasonable. None of these representations are challenged. Attorney Georgetti testified he interviewed witnesses, reviewed perhaps thousands of documents and organized them for Attorney Keefe.
(2) The Novelty and Difficulty of the Questions
Novelty would be the wrong word to use as far as the past experience of these lawyers is concerned who have practiced criminal law for years. Suffice it to say that a police officer was charged with shooting a citizen and was charged with Assault 1st Fabricating physical evidence and Falsely reporting an incident. An expert had to be retained to explain what otherwise might be an unfavorable interpretation of a video of the incident. Both lawyers testified as to the difficulties presented by a case like this one.
(3) The Skill Requisite to Represent a Client in an Incident Like this is of the Highest Degree.
A cursory review of the attorneys' work sheets establishing what they did and the hours they spent underline the organizational problems presented by a case of this type.
As to the all of the foregoing factors Attorney Dow whose CV the court also received into evidence, supports the observations made.
(4) Preclusion of Other Employment
The length of trial and the tasks performed by the lawyers in preparation for the trial obviously precluded them from either acceptance of or working intensely on other cases.
(5) Customary Fee
Attorney Dow by way of affidavit attested to the reasonableness of the hourly fees charged in each case. Attorney Keefe testified to the effect that he often charges more than the $400 hourly rate charged here. Attorney Georgetti testified he charged $300 hourly on 2003 and that was raised to $350 hourly the next year.
(6) Fixed or Contingent Fee
This was not a contingency fee case.
(7) Time Limitations
This was a highly publicized Part A criminal case, in which the lawyers had to prepare for trial on a schedule imposed by the court. At one point attorney Keefe indicated a continuance might have had to be requested given the amount of work that had to be done to prepare for trial.
(8) The client, Murtha was found not guilty of serious felony charges thus avoiding a felony record, loss of work opportunities and professional status and almost certain incarceration.
(9) Experience Ability and Reputation of the Lawyers
The Court has examined the CVs of each attorney and the affidavits of Attorney Dow. These are obviously attorneys of the highest skill experience, and reputation.
(10) Undesirability of case.
Experienced defense counsel handle cases of this type for a living. But it appears to have been a difficult case requiring the investment of much time.
(11) Relationship With Client
Criminal representation is not susceptible to such a consideration, nor is it relevant. A client may have only one involvement with the criminal system. But Attorney Georgetti did represent Mr. Murtha on other matters than the criminal case.
(12) Awards in Similar Cases
This is not a relevant consideration in cases of this type.
It is worthy of note that to contest the above factors and representations of the attorneys in their testimony or in their billing statements, the defendant offered no expert testimony. Much of the facts and testimony supporting each area just discussed were not contested.
Furthermore nothing in the statute would indicate if more than one attorney participated in a trial this would not be a "necessary" legal fee or a reasonable fee, if both asked compensation.
The Court has examined the invoices of each attorney and there is very little in the way of duplication. Attorney Georgetti submitted an hourly schedule regarding the criminal matter commencing on January 31, 2003. It is 16 pages long. Attorney Keefe's schedule begins on December 12, 2005 — that is 11 pages into Attorney Gerogetti's schedule. Apart from pretrial and courtroom attendance the court could find no duplication of effort; except on a few occasions they talked to each other by phone.
The lawyers here appear to have had very different roles. Attorney Georgetti did much of the preliminary investigative work before Attorney Keefe became involved. He also practices in Hartford area and knew people who had to be approached and interviewed. Attorney Georgetti participated in the voir dire in certain motions, and some of the pretrial discussions. He prepared some of the witnesses and assisted Attorney Keefe in bringing some of them to the courtroom. Attorney Georgetti contacted all if not most of the expert witnesses and had preliminary contact with them. He basically said he did things Attorney Keefe would otherwise have had to do. He handled a pretrial Franks Motion that lasted most of the day. Attorney Georgetti prepared the case each day for trial and prepared the cross examination and the documents to be used for cross examination. He met with police officers who were to testify to make sure what they were going to say. Some of the witnesses interviewed were done in the presence of and by both attorneys but that is hardly "duplicative." In a complicated case two or more attorneys often work together at the trial. Besides, apart from general inquiries as to possible duplication of effort nothing concrete was offered as to how or why common effort was not necessary or reasonable let alone what the duplication supposition specifically applied to.
Returning to the specific fee of Attorney Keefe the Court would note the amount of hours spent and the hourly fee rate are not directly challenged and only indirectly challenged by the duplication observations just addressed.
The Court finds the total base fee of $204,207.13 is justified after the adjustment noted by plaintiff's counsel in his post-trial brief and Mr. Murtha is entitled to that amount under the statute.
But the Court agrees with the defendant that a claim for interest does not lie under section 37a-1 of the General Statutes. By its terms the statute applies to a forbearance of a loan agreement between the parties. In its reply brief the plaintiff seems to concede this and instead relies on § 37-3a of the General Statutes. The statute provides for interest of 10% accruing at the rate of 10% "for the detention of money after it becomes payable." This claim would apply to all damage claims made in this case and not just to attorney fees.
Section 37-3a was not pled and frankly the court has difficulty applying this statute to the claims made here. The collective bargaining agreement does not provide for § 37-3a type of interest and it would be a gross intrusion into this bargained-for agreement to allow such interest.
Furthermore the case law interpreting this statute does not mandate the award of interest.
Two procedural requirements are presented by the statute which a trier of fact must determine "(1) whether the party against whom interest is sought has wrongfully detained money due to the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." Sears Roebuck Co. v. Bd. Of Trustees, 241 Conn. 749, 763 (1997). Maloney v. PCRE, LLC, CT page 11071 68 Conn.App. 727, 756 (2002), summed up the case law as to the context in which these procedural rules are to be interpreted. The court said: "A plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic reflects that not all improper detentions are wrongful." The court went on to say that: "The resolution of the issue is dependent on the circumstances in each case and is, consequently, inherently fact bound," on this point see also Foley v. Huntington Co., 42 Conn.App. 712, 738 (1996), also see generally Cecio Bros., Inc. v. February, 161 Conn. 265, 275 (1971). It is also true that § 37a-3 only sets a maximum interest rate and a court in exercising its authority (as a trier of fact) can vary the interest rate below that amount Sears Roebuck Co. v. Board of Trustees, supra, 241 Conn. at pages 763, 766. There is another aspect of the interest problem. Interest under the statute is discretionary and is based on equitable considerations. If the Court is to be consistent in its analysis as it affects both sides, this statute would not appear to be the vehicle to award interest. That is, interest awards under it do not necessarily and are not required to reflect market place interest figures, which is the only way to determine actual economic loss.
This was a difficult case which the court had problems resolving. The Court certainly cannot say the arguments raised by the defendant were frivolous or the position taken by the city was wrongful or in obvious defiance of the law.
The fact that Hartford in the past and other municipalities have paid these bills regularly does not mean corporation counsel ought not to have not now raised questions about the application of a statute not subject to frequent appellate review and presenting obvious problems of interpretation and in doing so acted wrongfully.
The Court awards Mr. Murtha then $204,207.13 regarding Attorney Keefe's services.
B
Mr. Murtha also makes a claim for attorneys fees with regard to Attorney Georgetti. The Court will rely on its introductory discussion to the fees for Attorney Keefe and the test it feels should apply in determining the propriety of the fee under the hourly rate times fee and CT Page 3192 Johnson analysis. It has already discussed Attorney Georgetti's role in this case in reviewing the twelve Johnson factors. It has reviewed the lawyers CV, the detailed invoice submitted by the attorney and Attorney Dow's affidavit. Suffice it to say that both attorneys Keefe and Georgetti are experienced and prominent members of the criminal defense bar. Apart from the duplication of effort query and the why two lawyers suggestion, both of which were not supported or explained by expert testimony or in cross examination, there has been nothing offered to question the hourly rate charged by each attorney, the hours spent, or the claimed tasks performed. Attorney Georgetti testified that this was the type of case that at trial "definitely needed two lawyers." At cross it was brought out he only filed perhaps a Franks motion but participating a six-week trial with 27 witnesses and experts and preparing their testimony and cross examination is a significant task.
As to whether Mr. Murtha assumed or was understood to have an obligation to Attorney Georgetti for the attorney fees, two letters written to the plaintiff are clear on this subject. One was written before the arrest and in contemplation of its occurring, the other was written the date of the arrest. The pre-arrest January 31, 2003 letter states:
Dear Rob:
This is to confirm that I have agreed to represent you in the event that you are arrested relative to the shooting incident of January 26, 2006 while in the course of your employment as a Hartford Police Officer. I will bill at an hourly rate of $300.00 per hour for all time spent on your defense. Further, you are responsible for all costs incurred in your defense. After review of the reports filed and the cruiser video, it is my opinion that it is very likely you will be arrested. I have explained to you that if you are arrested the Hartford Police Union does not pay for the cost of your defense.
If you are notified that an arrest warrant has been issued, please contact me immediately. Also, do not discuss this matter with anyone other than your attorney as any statement you make may be used against you.
If you have any questions, please do not hesitate to contact me. Very truly yours,
Michael A. Georgetti
The letter written on February 25, 2003 the day of the arrest states:
Dear Rob:
This is to confirm that I will represent you in connection with the defense of your pending criminal case in GA 14, 101 Lafayette Street, Hartford, Connecticut. Please review carefully the terms and conditions upon which I will agree to represent the defendant as stated in this letter so that there will not be any misunderstanding at a later date.
The fee for will be based upon an hourly basis for all time spent on your defense at an hourly rate of $300.00 and may from time to time be increased if I increase my hourly rate. The time will include court appearances, travel, research, conferences whether by telephone, e-mail or in person, investigation. This is not a exhaustive list and other items may also be included. You have paid a retainer in the amount of $2,500.00 against which I will bill as I deem appropriate. I will provide you with a written itemization of fees charged upon specific request by you.
In addition, you will be required to immediately reimburse me for any expenses incurred on behalf of the defendant which are deemed necessary to my proper representation of the defendant, including but not limited to court costs and program fees, witnesses and consulting fees, court reporters', monitors' or stenographers' fees, investigators, photographers, necessary travel, copying cost, facsimile machine expense, extraordinary postage, long distance telephone charges, delivery charges and similar expenses. I will discuss any costs with you before incurring that cost.
I reserve the right to stop representing you if payment is not made as specified herein, subject to the provisions of the Rules of Professional Conduct and my obtaining the permission of the Court, if I have filed my appearance on your behalf. You agree that under such circumstances you will not object to my withdrawal of my appearance on your behalf. If I am permitted to withdraw from representing you, you are nervertheless bound to pay for the value of the time which I have actually expended in connection with my representation of the defendant, plus expenses, based on my hourly rate, or the total fee above, whichever is greater.
This fee arrangement does not include any appeal of the matter or any representation in and/or retrial of cases following reversal or order granting new trial or retrial resulting from a hung jury or declaration of a mistrial, nor does it include representation of the defendant at any administrative hearing concerning these charges or any proceedings for the violation of any existing probation or any probation imposed as a result of these charges nor does it include representation in any prosecution of the defendant for this incident after the entry of a nolle prosequi. Any such additional services shall be the subject of an additional fee agreement, either written or oral. In the event that a court orders me to continue my representation of the defendant in any of the above circumstances, you will be required to pay for the reasonable value of such additional services and expenses based upon my then current hourly rate. In the event that more serious charges are substituted for any existing charges or in the event that additional charges are added, an additional fee will be due, the amount of which will be determined by the severity of the revised or new charges.
I agree to use my best efforts in representing you in connection with this matter. I have explained to you and you fully understand that no guarantees or promises have been made concerning the outcome of this matter and that neither the outcome nor the manner in which the case is concluded, whether by trial, negotiation, plea, pre-trial program or otherwise, will affect the amount of the fee.
In the event that you request that I perform any services in addition to those as specified herein, including but not limited to representation in other criminal files, you will be required to pay a reasonable fee for such services. Interest at the legal rate shall accrue on all sums due for services performed and/or costs incurred on your behalf from the date on which payment of such sums shall be due. In the event that an action is brought against you to collect any money due for services performed and/or costs incurred, you agree that you will pay a reasonable attorneys fee and costs in connection with such action.
Finally, I will retain your file for a period of six months after completion of your case. If you desire a copy, please request a copy within that time. If you have any questions, please do not hesitate to telephone.
Very truly yours,
Michael A. Georgetti
It is clear that Attorney Georgetti expected Mr. Murtha had a duty to pay his legal fees beyond any $2,500 retainer and Murtha by accepting the representation must be understood to have agreed to attorney Georgetti's conditions of representation. Attorney Georgetti sent bills to Mr. Murtha and throughout the case; in fact it was only after he learned Attorney Keefe had sent a bill to The Hartford Corporation Counsel that Attorney Georgetti sent his own bill. (See dates of respective letters which corroborate the attorney's testimony.)
Attorney Georgetti testified that he expected Murtha to pay his attorneys fee but like Attorney Keefe he realized this might not happen. He said at one point, if Mr. Murtha had gone to jail "I don't think I would have been paid one dime after that." Also Mr. Murtha, as previously noted, testified that he believed he had an obligation to pay these bills.
Attorney Georgetti represented Mr. Murtha on other civil issues he had unrelated to the criminal case but these were factored out by him in submitting his invoice.
The Court concluded Mr. Murtha is entitled to indemnification in the amount of $253,306.37 and for the reasons stated does not award interest.
"Indemnification" For Lost Wages and Other Claimed Economic Damages
(1)
The court will not repeat its observations as to why under Section 53-39a an officer in Mr. Murtha's position would be entitled to make a claim for non-attorney fee economic loss. To state the position in the simplest terms, the statute says if an officer is arrested and found not guilty ". . . such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred." A straightforward application of the English language would indicate attorneys fees are only a part of the economic loss which an officer is entitled to be indemnified. The Random House Dictionary defines "include" in its primary definition as "1. to contain, embrace or comprise, as a whole does parts or any part or element."
Referring to strict rules of statutory construction when derogation of the common law is in the offing or to the sanctity of the collective bargaining process will not permit the court to ignore the language of a statute — unless the argument is that the legislature has no power to legislate in areas that might be covered by such an agreement. Then the question arises what were they doing when they passed § 31-51bb or perhaps more to the point what other economic loss other than or in addition to attorneys fees was being referred to in § 53-39a? It can only refer to economic loss incurred as a result of a prosecution where the chief suspends an officer without pay and would include the type of claims made here.
Two other matters must be discussed before the court examines specific claims. The court does not believe, for reasons previously stated, that either under § 37-1 or 37-3a that the plaintiff is entitled to receive interest.
Secondly the logic of the court's previous discussion (or the illogic thereof if one disagrees with it) is that the loss under all the categories claimed would run from the date of Mr. Murtha's suspension without pay by the Chief because of his arrest on February 25, 2003 to the date of his termination on November 16, 2004 as a result of a disciplinary hearing under the CBA. After the latter termination, Mr. Murtha was not suspended because of his arrest and prosecution for a felony but as a result of the operation of the disciplinary procedures and hearing provided for in the CBA.
The court will now discuss the various claims for economic loss.
(2)
Base Salary
For the period in question (2/25/03-11/16/04) the court accepts the calculation of $84,370. However, insofar as this includes a claim for interest it should be reduced. Also if it includes deductions for earned income between November 16, 2004 through the end of 2004 those deductions should not be made. The court will permit an affidavit or stipulation to take account of these factors and will mark them as court exhibits. Any such document should be e-filed with a bench copy to the court.
Mitigation of Damages-Salary
The defendant makes a mitigation of damages claim. In employment cases a terminated employee can recover lost wages; these cases are useful on this issue. Carter v. Bartek, 142 Conn. 448, 451 (1955). When an employer raises mitigation, the burden is on the employer to show the employee failed to use reasonable diligence to find other employment which need not be comparable to previous employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 LM 15 (1982). In 22 Am.Jur.2d "Damages" the law is succinctly stated.
Traditionally, the deduction of earnings from the damages awarded in a wrongful discharge case has been characterized as mitigation of damages. The measure of damages for breach of an employment contract has been stated as the difference between the agreed-upon wages and the amount that the employee earned, or could have earned if he or she had, with reasonable diligence, searched for similar employment in the community. This is no more than a statement of the rule of avoidable consequences. Some courts express this principle in terms of a "duty" or obligation on the part of the employee to find or accept new employment to reduce damages . . . A wrongfully dismissed employee who unjustifiably refuses to accept similar employment will have the amount that would have been earned in the new position deducted from any damage award. However, damages need not be reduced by the amount the defendant contends the plaintiff would have received in other employment if the court finds that it would have been virtually impossible for the plaintiff to obtain a comparable position, if accepting another position would put the plaintiff's goal of seeking reinstatement in the former position at risk, or if the defendant has failed to prove that the job accepted by the former employee is the result of a reasonable effort to mitigate damages, even though the plaintiff earns less in the new job. Also, it must be shown that similar work is available in same locality.
The defendant argues that any monies Murtha earned during the period of suspension from February 25, 2003 to his termination should be deducted from his lost wage claim. But the defendant also makes the broader argument that the total lost wage claim should be denied.
It notes from his suspension to December 2007 Murtha made no efforts to apply for employment outside of his position at Gold Gym. His salary there was said to be "barely-above-minimum wage." Lack of effort "outside the period at issue" is said to cast doubt on Murtha's testimony that the prosecution made it difficult to find employment. It is broadly argued that "with his level of education and a little effort Mr. Murtha could have sought and obtained employment comparable to, if not higher than, his Hartford Police Department salary." How so? The defense appears to put aside the fact that mitigation of damages is a defense with the burden on the defendant to prove it by evidence of job opportunities and if necessary expert evidence on available job markets, cf. Lynch v. Granby Holdings, Inc., 37 Conn.App. 846, 850-51 (1995). Where the court quoted from Preston v. Keith, 217 Conn. 12, 22 to the effect that "a defendant claiming that the plaintiff has failed to mitigate damages seeks to be benefited by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant."
Mr. Murtha started working at Gold's Gym in August 2003 and continued to work there. Right after the arrest he testified that he had meetings with his attorneys. He felt he was lucky to get a job at the gym because they let him take off multiple days for court appearances and to "try to clear his name." At one point Murtha was asked why he did not pursue his job application with the FBI. He basically responded that he realized the pendency of the serious nature of the charges against him would be difficult to overcome in trying to secure a job with the FBI.
The court refuses to speculate on the basis of a woulda-coulda hypothetical that Murtha, did not make reasonable efforts under all the circumstances or especially based on speculation and his efforts or lack thereof in the job market a year or two years after his acquittal. It certainly cannot speculate as to what the results of those efforts might have been.
Unreimbursed Medical Expenses
It is the Court's understanding that Mr. Murtha is not pressing this claim.
Overtime Loss
The Court has examined the stipulation entered into between the parties. The defendant argues that following the discharge of his firearm on January 26, 2003 Mr. Murtha was placed on administrative duty and could only earn up to 8 hours a week of overtime. The firearm Discharge Board of Inquiry concluded on March 29, 2003 Murtha was not entitled to discharge his firearm.
The CBA for the period of time in question and from July 1, 2004 through November 16, 2004 provided that if an officer worked 8 hours or less overtime he was only entitled to regular pay. Because of his suspension by the chief it is the Court's understanding that he, of course, could not earn overtime since he could not act as a Hartford Police Officer but if he had not been suspended because of his arrest he would have been entitled to 8 hour overtime because he could have been on administrative duty.
That Murtha could have earned 8 hours of overtime seems established by his 4 1/2 year history with the department. The Court further assumes that if he had not been suspended by the chief on February 25, 2003 he could still earn overtime despite the negative finding of the Firearm Discharge Board of Inquiry — he was not terminated until November 16, 2004.
Under both CBAs applicable to this period an officer was required to work 40 hours per week. From February 25, 2003 to June 30, 2003 Murtha earned $822 per week or approximately $20.50 per hour. From July 1, 2003 to June 30, 2004 he earned $951.75 per week or approximately $23.50 an hour. From July 1, 2004 to November 16, 2004 he earned $1,057 per week or approximately $26 per hour. Eighteen weeks ran from February 25, 2003 to June 30, 2003; Fifty two weeks ran from July 1, 2003 to June 30, 2004; and nineteen weeks from July 1, 2004 to November 16, 2004.
Without interest that adds up to $15,929.
Deferred Compensation Loss
The Court has difficulty with this claim. It is basically a claim for lost interest on earnings which hypothetically could be part of economic loss if an investment of salary is involved. But that would open the statute to highly speculative claims and furthermore the way Mr. Murtha calculated his loss based on past years performance is not helpful. Apart from whether underlying supportive documents had to be on or were even provided to the defendant, they were not submitted into evidence and more exact testimony as to lost interest through expert testimony or market reports was not introduced.
What is even more troubling to the Court is that it does not seem to have in the file for example, many of the documents referred to on page 52 of the defendant's brief such as the plaintiff's tax return which is defendant's exhibit D. Also on page 53 there are many references to amounts but the Court could not locate the source of these figures in any of the exhibits.
Accrued Time
The Court has difficulty in accepting the defense argument about holiday leave. It is argued for Mr. Murtha to be entitled to make a claim in this regard he had to show that he was scheduled to work on that day but no such evidence was presented regarding this. In his testimony Murtha testified he never missed a day — he explicitly talked about never taking a sick day. He said he never missed a day of work. He concluded from that that over the period of time in question, as a basis for damage calculation, he was able to calculate accrued time based on holidays and other components of this category. But he never specifically addressed holidays. In its brief the defendant argues from interpretation of § 5.2 of the CBA Murtha would only have been entitled to vacation leave up to a maximum of 40 days. Under § 5.3 Murtha would not be entitled to payment for accumulated sick leave — they receive such payments only for retirement or death neither of which applies to Mr. Murtha.
Earned leave in his case could work out only to 6.4 days under § 5.4 of the CBA. But the problem with the defense argument is that in a stipulation entered into by the parties in paragraph 82 to states from suspension to termination Murtha would have accumulated 30 vacation days, 31 sick days, 18 holidays, 9 earned leave days. The total accumulated days for this period would have been 88 days. Can the defendant now withdraw the stipulation entered in by all sides? It is based on this calculation of accumulated days that the plaintiff has made its calculation of $22,233.20 in damages. Again the Court is prepared to make an award on the 88-day calculation but does not feel interest is appropriate.
As to several of these claims the Court needs to take further evidence in light of its ruling on the interest claim. Also as to the deferred compensation claim the Court would need further evidence or reconstruction or location of the exhibits to fairly decide it.