Opinion
No. KNL CV 06 4008944
September 20, 2010
MEMORANDUM OF DECISION RE ATTORNEYS FEES AND COSTS
FACTS
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 General Statutes § 46a-60(a)(1). The plaintiff also brought claims for negligent infliction of emotional distress and violation of General Statutes § 31-51x, which prohibits an employer from requiring an employee "to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance."
After a six-day trial, the jury returned with a verdict for the plaintiff on July 9, 2010. Specifically, the jury found that the defendants engaged in unreasonable conduct toward the plaintiff during the termination process and that their conduct was the cause of emotional distress to the plaintiff. The jury also found that UPS required the plaintiff to submit to a urinalysis test without a reasonable suspicion to do so. Finally, the jury found that the plaintiff's physical disability was a motivating factor in UPS's decision to terminate the plaintiff's employment and that UPS willfully violated the plaintiff's rights. The jury awarded the plaintiff $250,000 for negligent infliction of emotional distress as to UPS, $50,000 for negligent infliction of emotional distress as to Trudelle, $100,000 for violation of § 31-51x and $100,000 for disability discrimination. Additionally, the jury awarded $500,000 in punitive damages. The court reserved the issue of attorneys fees.
The following facts are also relevant to the issue of attorneys fees. In February 2005, the plaintiff entered into a retainer agreement with his counsel. The plaintiff agreed that his attorneys would be entitled to one third of any recovery that the plaintiff received for his wrongful termination claims "and including any claims brought against my former employer connected with the manner and facts of my termination from employment and the circumstances leading up to and surrounding it." Retainer Agreement, p. 1. The plaintiff moved for attorneys fees on July 27, 2010. The defendants filed an objection on August 3, 2010, and the plaintiff filed a response on August 6, 2010. The defendants filed a supplemental memorandum on August 10, 2010.
DISCUSSION
In his motion for attorneys fees, the plaintiff seeks one third of the ultimate judgment awarded or $233,720 in fees and $3,729.54 in costs, whichever amount is greater. The plaintiff argues that he is entitled to attorneys fees pursuant to General Statutes § 31-51z and General Statutes § 46a-104. The plaintiff argues that, in a civil rights case such as this, an award of attorneys fees is made in the amount that either reflects a contingency fee agreement or a lodestar analysis, whichever results in a greater award. The plaintiff argues that awarding the greater amount serves the dual purposes of deterring discrimination and bringing justice to the plaintiff. Further, the plaintiff argues that both the jury awards for negligent infliction of emotional distress and the award of punitive damages should be included in the calculation.
The defendants argue that the calculation of attorneys fees in the present case should be based on a reasonable application of the plaintiff's contingency fee agreement with his attorneys. The defendants assert that Connecticut follows the "American Rule," which does not allow for attorneys fees unless provided by contract or statute. As such, the defendants argue that attorneys fees are not recoverable on the negligent infliction of emotional distress counts because there is no contractual or statutory basis for the award. Additionally, the defendants argue that punitive damages should not be considered in the award of attorneys fees. Finally, the defendants argue that plaintiff's counsels' fees are unreasonable and therefore the fee application should be reduced if the court uses a lodestar analysis.
The plaintiff responds that a contingency fee agreement does not have to be used as the basis for attorneys fees in civil rights actions. Additionally, the plaintiff argues that the court is not limited to awarding attorneys fees on the statutory compensatory damages. Finally, the plaintiff argues that the most significant factor in calculating attorneys fees is the degree of success obtained by the plaintiff.
I
"It is well established that a trial court calculating a reasonable attorneys fee makes its determination while considering the factors set forth under rule 1.5(a) of the Rules of Professional Conduct . . . A court utilizing the factors of rule 1.5(a) considers, inter alia, the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent." (Citations omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 259, 828 A.2d 64 (2003).
"Connecticut follows the `American rule,' a general principle under which, attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Id., 268-69. In the present case, the parties do not dispute that the plaintiff's statutory claims allow for the recovery of attorneys fees. Section 31-51z(a) provides: "Any aggrieved person may enforce the provisions of sections 31-51t to 31-51aa, inclusive, by means of a civil action. Any employer . . . that violates any provision of sections 31-51t to 31-51aa, inclusive, or who aids in the violation of any provision of said sections shall be liable to the person aggrieved for special and general damages, together with attorneys fees and costs." 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 court must initially determine whether to calculate the award of attorneys fees based on the terms of the plaintiff's contingency fee agreement or based on a lodestar calculation, which is determined by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Ernst v. Deere Co., 92 Conn.App. 572, 576, 886 A.2d 845 (2005). In CT Page 18540 Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 269, the Connecticut Supreme Court analyzed its previous holding in Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 717 A.2d 150 (1998), when the Supreme Court "determined the extent to which a reasonable fee agreement should be the basis for a court's award of reasonable attorneys fees." (Internal quotation marks omitted.) "In Sorrentino, a jury awarded the plaintiff economic and noneconomic damages for retaliatory discharge in violation of General Statutes § 31-290a . . . The plaintiff moved for attorneys fees pursuant to § 31-290a(b)(1), which provided that `[a]ny employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court . . .' The plaintiff had a fee agreement with his counsel providing a fee of one third of any recovery, under which the appropriate fee would have been $48,643.57 . . . The trial court, however, awarded only $30,000 in attorneys fees, concluding that the billing records submitted by the plaintiff did not justify the higher fee . . . The plaintiff appealed from that determination.
"On appeal, this court, after considering the factors for reasonableness of a fee as set forth by rule 1.5(a) of the Rules of Professional Conduct held that `[a] trial court should not depart from a reasonable fee agreement in the absence of a persuasive demonstration that enforcing the agreement would result in substantial unfairness to the defendant.' . . . The court stated that the agreement itself was reasonable, and concluded that the billing practices that the trial court found objectionable, which included billing for the services of nonlawyers and two attorneys billing separately for their services, were not `sustainable grounds' for departing from the fee agreement; accordingly, the trial court abused its discretion in doing so." (Citations omitted.) Id., 269-70.
Following the reasoning in Sorrentino, the Supreme Court concluded that "when a contingency fee agreement exists, a two step analysis is required to determine whether a trial court permissibly may depart from it in awarding a reasonable fee pursuant to statute or contract. The trial court first must analyze the terms of the agreement itself . . . If the agreement is, by its terms, reasonable, the trial court may depart from its terms only when necessary to prevent `substantial unfairness' to the party, typically a defendant, who bears the ultimate responsibility for payment of the fee . . . By contrast, if the trial court concludes that the agreement is, by its terms, unreasonable, it may exercise its discretion and award a reasonable fee in accordance with the factors enumerated in rule 1.5(a) of the Rules of Professional Conduct." (Citations omitted.) Id., 270-72.
In the present case, the plaintiff has submitted a contingency fee agreement, which is the controlling document in this analysis. The plaintiff argues, however that the Schoonmaker holding does not have to be used as the basis for attorneys fees in civil rights actions. In support of this proposition, the plaintiff cites Commission on Human Rights Opportunities v. Brookstone Court, LLC, 107 Conn.App. 340, 945 A.2d 548, cert. denied, 288 Conn. 907, 953 A.2d 651 (2008), as an example of a post- Schoonmaker decision where a lodestar analysis was applied instead of a contingency fee agreement. In that case, the trial court found in favor of the plaintiffs in their housing discrimination case and determined that the defendants violated General Statutes § 46a-64c(a)(6)(A) and (C) and the federal Fair Housing Act, § 42 U.S.C. § 3604(f)(1) and (3)(A) and (B). Id., 343. In calculating attorneys fees, the trial court considered what constituted a "reasonable" award. CHRO ex rel. Westphal v. Brookstone Court, LLC, Superior Court, judicial district of Hartford, Docket No. CV 01 0805370 (September 21, 2006, Satter, J.T.R.) ( 42 Conn. L. Rptr. 87). The trial court noted that "[t]he fee arrangement between [the plaintiff and the plaintiff's attorney] was contingent, and [the attorney] received $3,300 from a judgment in favor of [the plaintiff] of $10,000." Id., 88. The court found that $25,000 was a reasonable fee based on the circumstances of the case, and reduced the award by the amount that the plaintiff's attorney had already received pursuant to the contingency fee agreement. Id. The Appellate Court affirmed the trial court's decision. Commission on Human Rights Opportunities v. Brookstone, supra, 107 Conn.App. 353.
In the present case, the court is not faced with a situation where plaintiff's counsel has already been paid pursuant to a contingency fee agreement. The court can find no reason that the holding in Schoonmaker should not be extended to the present case. Thus, if the contingency fee agreement in the present case is reasonable by its terms, the court will award attorneys fees pursuant to that agreement.
The plaintiff also cites a second example of a case where a lodestar analysis was conducted in spite of a contingent fee agreement: Perez v. D L Tractor Trailer School, 117 Conn.App. 680, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). In Perez, however, the Appellate Court noted that plaintiff's counsel "indicated" that he had taken the case on a contingent fee basis, but the written fee agreement was never produced. Id., 703. "[T]he [trial] court asked counsel and the plaintiff to submit signed affidavits as to the initial existence of a fee agreement. Counsel's subsequent affidavit indicated that there was a fee agreement, which he could not locate, and he did not provide the details of the arrangement he made with the plaintiff. The plaintiff's affidavit indicated that she could not find the fee agreement." Id. The trial court awarded the plaintiff $11,500 in attorneys fees, noting "that the general starting point for the calculation of attorneys fees is the lodestar analysis, and, thereafter, the court is permitted to consider the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)." Perez v. D L Tractor Trailer School, supra, 117 Conn.App. 701. On appeal, the Appellate Court affirmed the trial court's award, noting that "[t]he [trial] court also did not state whether it considered the contingent fee agreement between counsel and the plaintiff . . . We find the memorandum of decision to be unclear and, therefore, cannot determine whether the court abused its discretion with regard to its award of attorneys fees." (Citation omitted.) Id., 706-07. This court finds that Perez is not instructive in the present case. First, it is unclear whether a contingency fee agreement ever existed between the plaintiff and plaintiff's counsel. More importantly, the Appellate Court never reached the issue of whether the trial court abused its discretion in its award of attorneys fees.
"To be reasonable, a contingency fee agreement, must, at the very least, comply with the prescriptions of subsections (c) and (d) of rule 1.5 of the Rules of Professional Conduct. Rule 1.5(c) of the Rules of Professional Conduct provides: `A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.'"
"Rule 1.5(d) of the Rules of Professional Conduct provides: `A lawyer shall not enter into an arrangement for, charge, or collect:
"(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution of marriage or upon the amount of alimony or support, or property settlement in lieu thereof"; or
"(2) A contingent fee for representing a defendant in a criminal case."
"We note that the reasonableness of the contingent fee percentage itself may also be influenced by statutory requirements . . . or, by factors such as the degree of risk that is presented by the contingency." (Citation omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 270 n. 76.
The court finds the contingency fee agreement in the present case to be reasonable by its terms. The agreement provides for payment to the plaintiff's attorneys of one third of the plaintiff's recovery, which is identical to the agreement in Schoonmaker. Further, the agreement comports with subsections (c) and (d) of rule 1.5 of the Rules of Professional Conduct.
Having determined that the contingency fee agreement is reasonable, the court may only depart from its terms if it is necessary to prevent `substantial unfairness' to the defendant, who bears the responsibility for payment of the fee. The court finds that the contingency fee agreement is not substantially unfair to the defendants. This case has been ongoing for a period of almost four years, requiring extensive work and hundreds of hours of work by the attorneys. Further, the plaintiff was ultimately successful on his statutory claims. The court finds that it is not substantially unfair to the defendants to award attorneys fees pursuant to the contingency fee agreement.
II
Having determined that the appropriate calculation of attorneys fees in the present case is one-third of the plaintiff's recovery, the court must now determine which of the jury awards are included in the calculation. As the Connecticut Supreme Court noted, the construction of our state's employment discrimination statutes is consistent with the federal courts' interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Thames Talent Ltd. v. Commission on Human Rights Opportunities, 265 Conn. 127, 139, 827 A.2d 659 (2003). Accordingly, in making a determination regarding attorneys fees, this court will consider the principles set forth in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), as well as the Connecticut Supreme Court's decision in Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 510 A.2d 972 (1986).
In Hensley v. Eckerhart, supra, 461 U.S. 424, the United States Supreme Court discussed the award of reasonable attorneys fees under the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. § 1988. The court noted that, as a threshold matter, the plaintiff must be a "prevailing party" to recover an award of attorneys fees. Id., 433. The court went on to address the situation "where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Id., 434.
42 U.S.C. § 1988(b) provides: "(b) Attorneys fees — In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [ 42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [ 42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorneys fees, unless such action was clearly in excess of such officer's jurisdiction."
"In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit even where the claims are brought against the same defendants — often an institution and its officers . . . — counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved . . . The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
"It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the . . . court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
"Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit . . . Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
"If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
"Application of this principle is particularly important in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy and demands many hours of lawyers' services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a `prevailing party' therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved . . . In this case, for example, the District Court's award of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief obtained. But had respondents prevailed on only one of their six general claims . . . a fee award based on the claimed hours clearly would have been excessive.
"There is no precise rule or formula for making these determinations. The . . . court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified." (Citations omitted; internal quotation marks omitted.) Id., 434-37.
In Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 195, the Connecticut Supreme Court cited Hensley with approval when discussing an award of attorneys fees under the Connecticut Uniform Securities Act (CUSA). "The defendants first argue that the award was excessive as a matter of law because the fees that the trial court allowed improperly included amounts allocable to the plaintiff's unsuccessful claims of fraud and violation of [the Connecticut Unfair Trade Practices Act]. This argument is unpersuasive because it erroneously assumes that, under [CUSA], an award of attorneys fees must automatically be reduced if its recipient fails to prevail on all of his claims at trial. We have no such rule. A plaintiff may recover `reasonable attorneys fees' under [CUSA] only if he prevails on his [CUSA] claim. The magnitude of the amount awarded to a victorious party rests within the sound discretion of the trial court . . . Where a party succeeds on his [CUSA] claim, but fails on other claims brought in the same suit, the size of his award should reflect his success, as determined by the trial court, in securing redress for the injuries that prompted his [CUSA] claim and reasonable legal cost incurred in pursuing this success. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In this case, the plaintiff sought relief, on five separate legal theories, for losses he had sustained as a result of a transaction that the defendants had arranged. He succeeded in this endeavor by prevailing on three of the five related counts. Because the amounts he expended on litigation, including the dollars spent on his unsuccessful claims, were devoted to the pursuit of a goal that he achieved, the trial court permissibly rejected the defendants' demand that it reduce the award by two-fifths." (Citations omitted.) Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 194-95.
The Connecticut Uniform Securities Act is codified at General Statutes §§ 36b-2 through 36b-33. At the time of the Russell decision, it was codified at General Statutes §§ 36-470 through 36-502.
With these principles in mind, the court turns to the present case. Here, the plaintiff prevailed on three claims: negligent infliction of emotional distress, violation of § 31-51x and violation of § 46a-60(a)(1). The jury awarded damages against both UPS and Trudelle on the negligent infliction of emotional distress claims. As the court mentioned, the parties do not dispute that the plaintiff's statutory claims allow for the recovery of attorneys fees. The only issue is whether the plaintiff can recover attorneys fees on the negligent infliction of emotional distress claims against UPS and Trudelle. The court addresses each of these claims in turn.
A
With respect to UPS, the plaintiff prevailed on his claims for violation of § 46a-60(a)(1), violation of § 31-51x and negligent infliction of emotional distress. To recover on a claim of negligent infliction of emotional distress in the employment context, the plaintiff must show that the defendant engaged in unreasonable conduct during the termination process. Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). "The dispositive issue in each case [is] whether the defendant's conduct during the termination process was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 751, 792 A.2d 752 (2002). Similarly, in finding for the plaintiff on his § 46a-60(a)(1) claim, the jury found that the plaintiff's disability was "a motivating factor in the defendant's decision to terminate his employment." Finally, the jury found that UPS required the plaintiff "directly or indirectly to submit to a urinalysis drug test on December 2, 2004." The court finds that the negligent infliction of emotional distress claims with respect to UPS were sufficiently related to the statutory claims based on the common core of facts at the center of the controversy, namely, the events that took place between December 1 and December 3, 2006. These events are limited to a few days time and all revolve around the plaintiff's termination.
Having found that the claims are not discrete, the court next considers whether the plaintiff's success with respect to UPS entitles his attorneys to a fully compensatory fee. As the defendants note, the plaintiff originally brought seven causes of actions against both defendants. The case was removed to the District Court, where the defendants' motion to dismiss the cause of action for violation of § 46a-60(a)(1) based on perceived disability was granted. Following discovery, the District Court granted summary judgment on the plaintiff's claims under the Americans with Disabilities Act. On remand from the District Court, the defendants moved for summary judgment on all of the remaining counts. The court, Martin, J., granted the motion with respect to the intentional infliction of emotional distress claim, but denied the motion with respect to the other claims. The plaintiff prevailed on the three remaining claims against UPS at trial and the jury awarded the plaintiff $450,000 for his claims with respect to UPS. Additionally, the jury found that UPS willfully violated the plaintiff's rights and awarded the plaintiff an additional $500,000 in punitive damages. Although not all of the plaintiff's claims were ultimately tried, the plaintiff prevailed on every claim regarding UPS that went before the jury. Further, the jury awarded substantial damages for the plaintiff's claims against UPS. This is a very good result for the plaintiff, which is the crucial factor in determining attorneys fees. The plaintiff is entitled to attorneys fees on all three counts against UPS that were presented to the jury: negligent infliction of emotional distress, violation of § 31-51x and violation of § 46a-60(a)(1).
B
The court next reaches the issue of whether attorneys fees should be assessed on the $50,000 award against Trudelle for negligent infliction of emotional distress. In contrast to UPS, only one claim was presented to the jury with respect to Trudelle. The jury found that Trudelle engaged in unreasonable conduct toward the plaintiff during the termination process and that Trudelle's conduct during the termination process caused the plaintiff emotional distress. The jury awarded the plaintiff $50,000 to compensate the plaintiff for the emotional distress damages caused by Trudelle's conduct.
Trudelle was working as a supervisor at UPS at the time of the plaintiff's termination, however, the plaintiff's statutory claims were brought only against UPS, and those claims are the basis for the award of attorneys fees in the present case. The plaintiff never alleged, nor did the defendants acknowledge directly, that Trudelle's actions were taken within the scope of his employment. The court notes that the individual and corporate defendants were represented by the same counsel at trial. During the course of the trial the court asked defense counsel if there was any conflict of interest with regard to his representation of both defendants. Defense counsel denied there was any conflict.
With this context in mind, the court is now faced with the issue of whether the negligent infliction of emotional distress claim against Trudelle is sufficiently related to the plaintiff's statutory claims. Although the court expressed its concerns with respect to the issue, there are no allegations or acknowledgments on the record that Trudelle's conduct occurred within the scope of his employment. Without that unifying link, the court finds that the claim against Trudelle is not sufficiently related to the statutory claims against UPS and the plaintiff is not entitled to attorneys fees on that award.
III
The court turns to the issue of whether attorneys fees should be assessed on the jury's award of punitive damages. The Connecticut Supreme Court has long held that "[c]ommon-law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are . . . limited to the plaintiff's litigation expenses less taxable costs . . . [This] rule, when viewed in the light of the increasing costs of litigation, also serves to punish and deter wrongful conduct." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 826 n. 5, 836 A.2d 394 (2003). Statutory punitive damages, however, are distinct from an award of common law punitive damages in that statutory punitive damages serve a primarily remedial and deterrent purpose as opposed to the primary purpose of compensating the plaintiff for his or her injuries. See, e.g., Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 96-98, 881 A.2d 139 (2005); Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 272-73.
In the present case, the jury was provided civil jury instruction 3.4-4 with respect to punitive damages. Instruction 3.4-4 provides, in relevant part: "Punitive damages are damages awarded not to compensate the plaintiff for any injury or losses but to punish the defendant for outrageous conduct and to deter (him/her) and others like (him/her) from similar conduct in the future. Punitive 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." Based on this instruction, the jury awarded the plaintiff $500,000 in punitive damages. The foundation for the award of punitive damages was not a common law claim, but the plaintiff's statutory claims pursuant to § 46a-60(a)(1).
The court finds that it would be substantially unfair to the defendants to assess attorneys fees on the award of punitive damages. The plaintiff was awarded $500,000 in compensatory damages. Additionally, pursuant to this decision, the plaintiff will be compensated by an award of attorneys fees in the amount of one-third of the award against UPS. The jury awarded an additional $500,000 in punitive damages based on the jury's finding that the defendant UPS had engaged in outrageous conduct. Considering the jury's decision to punish the defendants by way of awarding statutory punitive damages, it would be redundant to allow an award of attorneys fees on top of that award. The court believes that the defendants will be sufficiently deterred based on the statutory punitive damages award and an award of attorneys fees on the compensatory damages judgment against UPS.
IV
The remaining issue for the court to decide is whether the plaintiff is entitled to costs. As the court has noted, § 46a-104 and § 31-51z both provide for an award of costs. The plaintiff seeks $3,729.54 in costs related to this litigation, which the court finds to be a reasonable amount. Accordingly, the plaintiff is entitled to collect the amount he seeks in costs.
CONCLUSION
The plaintiff is entitled to recover attorneys fees on the jury awards with respect to his claims against UPS. Additionally, the plaintiff is entitled to recover attorneys fees on the award of back pay and contribution to the pension fund. The award of attorneys fees is to be calculated pursuant to the terms of the plaintiff's contingency fee agreement with his attorneys. Thus, the plaintiff is entitled to $165,922.20 in attorneys fees.
The plaintiff is not entitled to recover attorneys fees on his claim for negligent infliction of emotional distress against Trudelle, nor is he entitled to recover attorneys fees on the jury award of statutory punitive damages. The plaintiff is, however, entitled to costs in the amount of $3,729.54.