Opinion
No. CV 10-6004925
November 24, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
FACTS
On August 31, 2010, the defendant, Gunther International, Ltd., filed a motion to strike and a memorandum in support of the motion. On October 25, 2010, the plaintiff, Lucille Tanski, filed a memorandum in opposition to the motion. The defendant moves to strike the prayer for relief of punitive damages in the plaintiff's amended complaint. In her amended complaint, the plaintiff alleges various causes of action for violations of the Connecticut Fair Employment Practices Act (CFEPA), including discrimination on the basis of age and gender as well as a retaliation claim. The parties do not dispute that the plaintiff's request for punitive damages is based on her claims pursuant to the CFEPA.
The plaintiff filed a request to amend and amended complaint on October 13, 2010. The defendant did not file an objection thereto and, thus, the amended complaint is the operative complaint pursuant to Practice Book § 10-60.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The defendant argues that the claim for punitive damages should be stricken because punitive damages are not recoverable under the CFEPA. The defendant asserts that General Statutes § 46a-104 does not expressly provide for an award of punitive damages and, therefore, punitive damages may not be recovered pursuant to the statute. Additionally, the defendant argues that an award of punitive damages would lead to a double recovery of attorneys fees pursuant to the CFEPA. In response, the plaintiff argues that the plain language of the statute does not prohibit an award of punitive damages and that an award of punitive damages would not be redundant because punitive damages and attorneys fees are intended to serve different purposes. Additionally, the plaintiff argues that the legislative history of the CFEPA indicates that the legislature intended to allow punitive damages under the statute.
A plaintiff who successfully brings a claim under the CFEPA is entitled to relief pursuant to § 46a-104, which provides: "The court may grant a complainant in an action brought in accordance with Section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs." This court recently addressed all of the parties' arguments in Tomick v. United Parcel Service, Inc., Superior Court, judicial district of New London, Docket No. CV 06 4008944 (October 28, 2010, Cosgrove, J.). This court engaged in an analysis of the case law surrounding the issue of punitive damages as well as the statutory language and legislative history with respect to § 46a-104. Thereafter, this court concluded that "reviewing the legislative history, the policy that the legislation was designed to address and this section's language as compared to other statutory sections, the court holds that punitive damages are not authorized in this case to be imposed by either the jury or the court." Id. Based on the reasoning set forth in the Tomick decision, the court concludes that punitive damages may not be awarded under § 46a-104. Accordingly, the defendant's motion to strike is granted.
The relevant portions of that opinion are annexed hereto for the convenience of the parties as Appendix A.
APPENDIX A TOMICK V. UNITED PARCEL SERVICE
D.N. CV 064008944 NEW LONDON JUDICIAL DISTRICT, OCTOBER 28, 2010
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (No. 145 and 150) RE MOTION TO SET ASIDE VERDICT OR FOR REMITTITUR(No. 166) RE MOTION TO SET ASIDE VERDICT OR FOR REMITTITUR (No. 168) RE MOTION TO SET ASIDE AWARD FOR PUNITIVE DAMAGES (No. 146 and 151) RE MOTION TO REARGUE/RECONSIDERATION RE ATTORNEYS FEES, BACK PAY, FRONT PAY AND REINSTATEMENT (No. 166)
I. FACTS A. Claims and Procedural Posture
In this action, the plaintiff, Michael Tomick, alleged that the defendants, United Parcel Service, Inc. (UPS) and Kevin Trudelle, discriminated against him on the basis of his disability in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a)(1). The plaintiff also brought claims for negligent infliction of emotional distress and for violation of General Statutes § 31-51x, which prohibits an employer from requiring an employee "to submit to a urinalysis drug test unless the employer damages there is no bright line measure. As previously noted, in 1991 the Supreme Court upheld an emotional distress award of $97,500 in Oakes v. New England Dairies, supra, 219 Conn. 15.
Here, the jury had before it evidence in the form of the plaintiff's testimony as to his reaction to the defendants' conduct when they terminated his employment and when UPS violated not one, but two separate rights conferred to the plaintiff by the legislature. The court does not find that these damage awards, whether considered singly or jointly, rise to a level to shock the court's conscience or go beyond what would be just damages.
V. MOTIONS TO SET ASIDE AWARD FOR PUNITIVE DAMAGES (No. 146, 151)
On July 9, 2010, the jury determined that the plaintiff's physical disability was a motivating factor in UPS's decision to terminate his employment. It further responded affirmatively to jury interrogatory 12, which asked "Do you believe that UPS willfully violated the plaintiff's rights such that he should be entitled to an award of punitive damages?" Thereafter, in an appropriate blank on the verdict form, the jury awarded the plaintiff $500,000 in punitive damages.
On July 16, 2010, UPS filed a motion to set aside the award for punitive damages. On August 9, 2010, the plaintiff filed a memorandum in opposition to the motion.
UPS argues that the jury should never have been charged on the issue of punitive damages because § 46a-104 does not provide for such an award. Further, UPS argues that the record does not support an award of punitive damages in the present case. Finally, UPS argues that an award of punitive damages in Connecticut is limited to the costs of litigation and that an allowance of punitive damages under § 46a-104 would lead to a double recovery of attorneys fees.
In response, the plaintiff argues that the language of § 46a-104 supports an award of punitive damages. Further, the plaintiff asserts that an award of punitive damages is appropriate in the present case because the jury concluded that UPS willfully violated the plaintiff's rights. The plaintiff argues that punitive damages are not limited to attorneys fees when the damages are allowed pursuant to statute. Finally, the plaintiff argues that the record supports an award of punitive damages.
A. Support for Award of Punitive Damages
The first issue the court will address is whether the record in the present case supports the jury's award of punitive damages. "The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . ." (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 110, 947 A.2d 261 (2008). As UPS notes, "[p]unitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others." (Internal quotation marks omitted.) Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 245, 919 A.2d 421 (2007).
In the present case, the jury was instructed that "[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's reckless indifference to the rights of others or an intentional and wanton violation of those rights. You may award punitive damages only if you unanimously find, from facts established by a preponderance of the evidence, that the conduct of the defendant was, in fact, outrageous." With that instruction, the jury made specific findings with respect to UPS's conduct. The jury found that the plaintiff's physical disability was a motivating factor in UPS's decision to terminate the plaintiff's employment. Further, the jury found that UPS willfully violated the plaintiff's rights. Construing the evidence and reasonable inferences in a light most favorable to the prevailing party the jury could have reasonably arrived at this conclusion based on the evidence presented at trial and their evaluation of the credibility of the witnesses offered by the defendant. Stated another way, the court does not find that the punitive damage award in this case is "manifestly unjust."
B. Double Recovery
UPS argues that punitive damages are limited to attorneys fees in the state of Connecticut, and that allowing an award of punitive damages would lead to a double recovery of attorneys fees. Connecticut adheres to a long-standing rule that "common-law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs." Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992)
In Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 64-65, 578 A.2d 1054 (1990), the Supreme Court expressly determined that an award of punitive damages in accordance with the common-law rule and a separate and distinct award of attorneys fees was appropriate. On several other occasions, the Supreme Court has upheld awards of punitive damages in conjunction with awards of attorneys fees when the punitive damages were provided for by statute. See, e.g., Votto v. American Car Rental, Inc., 273 Conn. 478, 871 A.2d 981 (2005); Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004); Elm City Cheese Co. v. Federico, 251 Conn. 59, 752 A.2d 1037 (1999). The fact that attorneys fees have been awarded in the present case does not automatically preclude an award of punitive damages.
C. Punitive Damages Pursuant to § 46a-104 1. Case Law
The court now turns to the dispositive issue in this argument — whether punitive damages are authorized in this case. Section 46a-104 provides: "The court may grant a complainant in an action brought in accordance with Section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs." The appellate courts have not determined whether § 46a-104 allows for an award of punitive damages, although two recent Appellate Court cases have mentioned the issue. In Perez v. D L Tractor Trailer School, 117 Conn.App. 680, 710, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010), the defendant argued at trial that a prevailing plaintiff in a discrimination case was not entitled to punitive damages under the CFEPA. The Appellate Court quoted the following colloquy between the trial court and the defendant's counsel:
"`The Court: And doesn't § 46a-104 provide that attorneys fees can be . . . awarded?
`[The Defendant's Counsel]: Yes, it does, Your Honor.
`The Court: And haven't I ruled that the only punitive damages I'm going to award are attorneys fees?
`[The Defendant's Counsel]: Yes, Your Honor, but in Connecticut . . . the only fees you can get under punitive damages are attorneys fees.
`The Court: That's all I'm awarding.'°"
Id. Following the quotation, the Appellate Court held that "[§ ]46a-104 provides that the prevailing party in a discrimination action may be awarded attorneys fees. The court therefore did not abuse its discretion by denying the defendant's motion for judgment notwithstanding the verdict." Id. The Appellate Court's decision in Perez is not instructive in that it did not address the issue in this case, namely, whether an award of punitive damages are authorized by statute in addition to the expressly authorized award of attorneys fees.
Most recently, the Appellate Court explicitly reserved the issue of punitive damages pursuant to § 46a-104 in Ware v. State, 118 Conn.App. 65, 87 n. 14, 983 A.2d 853 (2009). In that case, the defendant, the state of Connecticut, argued that sovereign immunity barred the plaintiff's claim for punitive damages pursuant to § 46a-104. Id., 87. The Appellate Court noted that "[t]he defendant also questions whether § 46a-104 even permits the awarding of punitive damages at all, whether against the state or a private party. We need not address this argument because we conclude that sovereign immunity bars the recovery of punitive damages against the state under § 46a-104." Id., 87 n. 14. The analysis of the court was focused on the issue of the extent of the statutory waiver of sovereign immunity rather than an analysis of the language of § 46a-104. The Ware court noted "the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . We conclude the legislature did not, either expressly or by force of a necessary implication, statutorily waive the state's sovereign immunity from liability for punitive damages under the fair employment act." (Citations omitted; internal quotation marks omitted.) Ware v. State, supra, 118 Conn.App. 88.
To date, there are few cases in the state of Connecticut where a plaintiff sought to recover punitive damages pursuant to § 46a-104 against a private defendant. Of these cases, some courts have held that the plaintiff was not entitled to recover punitive damages under the statute. See, e.g., Shaw v. Greenwich Anesthesiology Associates, P.C., 200 F.Sup.2d 110, 117-18 (D.Conn. 2002); Peckinpaugh v. Post-Newsweek Stations Connecticut, Inc., United States District Court, Docket No. 3:96CV2475(AVC) (D.Conn. March 10, 1999); Craine v. Trinity College, Superior Court, judicial district of Hartford, Docket No. CV 95 0555013 (December 27, 1999, Peck, J.), reversed in part on other grounds, 259 Conn. 625, 791 A.2d 518 (2002). The majority of the cases in this line disallowed an award of punitive damages based on the fact that the statute does not explicitly authorize punitive damages. See, e.g., Peckinpaugh v. Post-Newsweek Stations Connecticut, Inc., supra, United States District Court, Docket No. 3:96CV2475(AVC).
In contrast, some Superior Court cases have held that punitive damages are available to a successful plaintiff pursuant to § 46a-104. See, e.g., Collier v. Connecticut Department of Public Safety, Superior Court, judicial district of Middlesex, Docket No. CV 96 80659 (May 3, 1999, Arena, J.) ( 24 Conn. L. Rptr. 433); Cantoni v. Xerox Corp., Superior Court, judicial district of Hartford, Docket No. CV 98 0582705 (February 3, 1999, Fineberg, J.) ( 24 Conn. L. Rptr. 38). These cases hold that there is no restriction in § 46a-104 against an award of punitive damages and that the use of the word "including" indicates that punitive damages are authorized under the statute.
2. Statutory Language
When construing a statute, the court begins with General Statutes § 1-1(a), which provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." Further, General Statutes § 1-2z, titled "plain meaning rule," provides: "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 results, extratextual evidence of the meaning of the statute shall not be considered."
"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . § 1-2z directs us first to consider 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 results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007). "An axiomatic rule of statutory construction is that statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment." (Internal quotation marks omitted.) Fishbein v. Kozlowski, CT Page 22681 252 Conn. 38, 61, 743 A.2d 1110 (1999).
The plaintiff argues that the inclusion of the phrase "including, but not limited to" in § 46a-104 is significant because the phrase is expansive in its nature. "[T]he phrase [`including but not limited to'] convey[s] a clear intention that the items listed in the definition do not constitute an exhaustive or exclusive list . . . Although `including' has been found to be ambiguous by itself, other language may remove the ambiguity . . . By adding the phrase `but not limited to,' [a] statute clearly indicates that `including' is meant as a term of expansion." (Citation omitted; internal quotation marks omitted.) Lusa v. Grunberg, 101 Conn.App. 739, 756-57, 923 A.2d 795 (2007).
UPS argues that the legislature's failure to expressly include punitive damages in the language of the statute indicates the intent to preclude an award under § 46a-104. Punitive damages are explicitly allowed under several sections of the Connecticut General Statutes. See, e.g., General Statutes § 42-110g (Connecticut Unfair Trade Practices Act); General Statutes § 52-240g (product liability actions); General Statutes § 19a-550 (patients' bill of rights).
For example, the Connecticut Unfair Trade Practices Act explicitly allows for punitive damages pursuant to § 42-110g(a), which provides, in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by Section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." This statutory language was first adopted in 1973 as a part of Public Acts 1973, No. 73-6, § 7. Based on the language of § 42-110g(d), the Connecticut Supreme Court has held that "CUTPA allows for the recovery of punitive damages . . . and attorneys fees." (Citation omitted.) Stearns Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 9 n. 12, 955 A.2d 538 (2008). This is a logical conclusion based on § 1-2z, the "plain meaning rule." In Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 64-65, the Supreme Court noted that "[a]lthough an award of what may amount in effect to double attorneys fees is unusual, we conclude that there is no legal impediment to such a dual award in an appropriate case."
In General Statutes § 31-291a, adopted in Public Acts 1984, No. 84-330, §§ 1, 2, the legislature provided: "Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district . . . for reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled . . . and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court . . ." Thus the legislature in 1984 expressly authorized the court, in its discretion, to determine punitive damages in an appropriate case and also allowed for an award of attorneys fees.
These two statutory schemes, adopted prior to the enactment of § 46a-104 in 1991, demonstrate that the legislature in at least two instances has expressly and explicitly given the courts the discretion to award punitive damages in addition to an award of attorneys fees.
The court is aware of one statutory claim damage scheme that uses the expansive language of § 46a-104 and also expressly authorizes an award of attorneys fees. General Statutes § 22-351a establishes liability for intentionally killing or injuring a companion animal and provides that a person who does so "shall be liable to the owner of such companion animal for economic damages sustained by such owner including, but not limited to, expenses of veterinary care, the fair monetary value of the companion animal and burial expenses for the companion animal." Despite the use of this expansive language, the legislature went on in subsection (c) of § 22-351a to expressly award "punitive damages in an amount not to exceed the jurisdictional monetary limit . . . together with a reasonable attorneys fee." Because this statute refers to "economic damages" as opposed to the "legal remedy" provided in § 46a-104, the wording of the companion animal statute tends to undercut but does not topple the plaintiff's argument that when the legislature uses expansive language when discussing damages it intends to include authorization for a court to award punitive damages.
The language of § 46a-104 does not explicitly provide for an award of punitive damages, as is the case in § 42-110g and other statute sections that were enacted before it. Section 46a-104, however, contains the phrase "including, but not limited to," which is expansive in nature.
The court has reviewed the legislative history of § 46a-104 and it has not provided any significant guidance toward the resolution of this issue.
The court has also considered the public policy the legislature intended to promote in prohibiting discrimination in the employment arena. These protections were created for both public and private employees on a state and federal level. The Connecticut Supreme Court has noted that it considers analogous federal statutes in the interpretation of the CFEPA. See State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination on the basis of race, color, religion, sex and national origin. Under Title VII, attorneys fee are allowed under 42 U.S.C. § 2000e-5(k) and punitive and compensatory damages are also expressly allowed, subject to limits based on the number of employees. The presence of an express authorization of an award of punitive damages in the federal statute and the absence of such an express authorization in state statutory scheme supports a conclusion that punitive damages are not allowed under § 46a-104.
The court could not find support for the plaintiff's position in its examination of other sections of Title 46a of the Connecticut General Statutes. Expanding the scope of review beyond this title, the court has previously discussed other statutory schemes adopted prior to § 46a-104 in which the legislature expressly authorized punitive damages. In these schemes the legislature has designated the court rather than the jury as the arbiter of an award of punitive damages. Section 42-110g(a) provides, in relevant part: "The Court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." Section 31-291a provides, in relevant part: "The court may award punitive damages." Section 22-351a(c) provides, in relevant part: "[T]he court may award punitive damages in an amount not to exceed the jurisdictional monetary limit established by subsection (d) of Section 51-15, together with a reasonable attorneys fee."
This court finds that the legislature's inclusion of the phrase "including, but not limited to" conveys the legislative intention to give the court broad legal and equitable powers in fashioning relief once discrimination has been found. Front pay is not expressly referenced in the statute but has historically been included in the tools available to a court to remedy discrimination. This conclusion is supported by the premise that statutes should be construed so that no part of the statute is treated as insignificant and unnecessary. Fishbein v. Kozlowski, supra, 252 Conn. 61.
The court thus concludes that the language of § 46a-104 does not expressly or necessarily authorize the jury to award punitive damages in this case. If anyone could make an award of punitive damages in this case it would be the court, not the jury. However, reviewing the legislative history, the policy that the legislation was designed to address and this section's language as compared to other statutory sections, the court holds that punitive damages are not authorized in this case to be imposed by either the jury or the court. The motions to set aside the award of punitive damages are granted.
VI. MOTION TO REARGUE AND FOR ARTICULATION (No. 165)
UPS seeks reargument with regard to the court's decisions awarding attorneys fees, back pay and front pay. The motion for reargument is denied.
UPS seeks reargument with regard to the court's order that the plaintiff be reinstated to his position with UPS as a package car driver and a termination of stay upon appeal. The defendant's motion for reargument is granted with regard to reinstatement and termination of the stay. The court heard arguments with regard to merits of these portions of the motion on October 18, 2010.6