Welton v. Ferrara

Full title: DEBORAH R. WELTON, CO-ADMINISTRATOR ET AL. v. JOSEPH A. FERRARA…

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Mar 18, 2008

2008 Ct. Sup. 4593 (Conn. Super. Ct. 2008)

45 CLR 211

Opinion

No. CV07-5014334S

March 18, 2008

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#106)

BARBARA N. BELLIS, JUDGE.

FACTS

On September 18, 2007, the plaintiffs, Deborah R. Welton and Robert M. Welton, co-administrators of the estate of Scott L. Welton, commenced this action by service of process against the defendants, Joseph A. Ferrara individually and as the administrator for the estate of Adrienne Ferrara, Carl Walters and Side Street Grille, LLC. The plaintiffs filed a nine-count complaint in which they allege the following facts. On December 19, 2006, and December 20, 2006, Adrienne Ferrara, a minor, was served alcohol while she was intoxicated while a patron at the Side Street Grille. Ms. Ferrara left the Side Street Grille in an intoxicated state with Scott L. Welton as a passenger in her motor vehicle, when, due to her intoxication, she lost control of the vehicle. The vehicle left the traveled portion of the highway, struck a tree and burst into flames. Mr. Welton was trapped in the burning vehicle and died at the scene.

In count four of the complaint, the plaintiffs assert a claim against Joseph A. Ferrara, in his administrative capacity, alleging statutory recklessness on the part of the decedent operator, Adrienne Ferrara. In count five, the plaintiffs allege that Joseph A. Ferrara, individually, as the owner of the car that the decedent operator was driving, is vicariously liable for the statutory recklessness of the operator.

On November 9, 2007, Joseph A. Ferrara, in his individual and administrative capacity, filed a motion to strike counts three, four and five of the complaint¹ along with a memorandum of law in support of the motion.² On January 2, 2008, the plaintiffs filed a memorandum of law in opposition. The matter was heard on short calendar on January 14, 2008.

1 At oral argument, counsel indicated that the motion was withdrawn as it related to count three.

2 Joseph A. Ferrara is the only defendant who filed the motion before the court. For the sake of simplicity he is referred to herein as the defendant.

DISCUSSION CT Page 4594

"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). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party 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).

COUNT FOUR

With respect to count four, the issue is whether the plaintiffs may sustain a cause of action against the estate for statutory recklessness and, pursuant to General Statutes § 14-295,³ recover for double and treble damages, despite the death of the tortfeasor. The defendant moves to strike count four on the ground that, due to the penal character of § 14-295, the plaintiffs' cause of action does not survive the death of the decedent operator pursuant to § 52-599(c)(3).⁴ In addition, the defendant's memorandum of law asserts that it seeks to strike the corresponding prayer for relief as well. The plaintiffs counter that § 14-295 is not a penal statute and, therefore, the cause of action is not barred by § 52-599(c)(3) and survives the death of the decedent operator.

3 General Statutes § 14-295 states: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle."

4 52-599 provides, in pertinent part "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person . . . The provisions of this section shall not apply . . . (3) to any civil action upon a penal statute."

Black's Law Dictionary (8th Ed. 2004) defines a penal statute as "[a] law that defines an offense and prescribes its corresponding fine, penalty, or punishment." "Penal statutes, strictly and properly, are those imposing punishment for an offense against the State . . . The words penal and penalty, in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws." (Citation omitted; internal quotation marks omitted.) Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1 (1901).

The two Superior Court decisions addressing whether § 14-295 is considered a penal statute and thus, whether an action under this statute against the estate can survive the death of the injured party, reach opposite conclusions, The trial court in Holcomb v. Kovacs emphasized: "General Statutes § 14-295 . . . clearly seeks to do much more than provide a more nearly complete compensatory remedy. By authorizing the trier of fact in a civil case to use its discretion to award double or even treble damages, this statute permits a result whose clear [reason for being] is to punish conduct that has been found to go beyond simple negligence and which violates certain motor vehicle statutes either deliberately or with reckless disregard. That mandate is unrelated to the nature of the harm done to the plaintiff, but rather to the nature of the tortfeasor's conduct, for which the statute provides what is a potentially very stiff penalty."

"If the statute is indeed essentially punitive or penal, then a plaintiff should not be permitted to invoke it to recover damages against the estate. Since even a double damages award produces far more than a fair remedial award, § 14-295 must be viewed as essentially penal, its purposes of punishing reckless conduct as a wrong done to the state clearly outweighing, on a purely quantitative basis, any possible remedial value to the plaintiff." (Internal quotation marks omitted.) Holcomb v. Kovacs, Superior Court, judicial district of New Haven, Docket No. CV 03 0481239 (March 7, 2006, Silbert, J.) (41 Conn. L. Rptr. 16).

The court in Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) (41 Conn. L. Rptr. 491), however, observed that, "[s]ection 14-295 of the Connecticut General Statutes contains no provision for a punishment or penalty imposed by the state for a crime against the state. Furthermore, the court imposes the penalty in cases where penal statutes are violated. Section 14-295 provides that a determination of whether or not to impose double or treble damages is made by the trier of fact. Under the definitions used by the Connecticut Supreme Court, it is not a penal statute." Id., 492.

As the court further emphasized in Holcomb v. Kovacs, supra, 41 Conn. L. Rptr. 14, however, "it is apparent that the statutes enumerated within § 14-295 all describe wrongs against the State of Connecticut, which has a clear interest in ensuring the safety of travel upon its public highways. They are not, in and of themselves, designed for the purpose of providing civil causes of action. Thus, in the strict and primary sense, the wrongs sought to be addressed by § 14-295 are ones against the state. Only secondarily, though the application of § 14-295, do these statutes purport to address wrongs done to individuals." (Internal quotation marks omitted.) See also Lyte v. Kane, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 063138 (August 25, 1998, Flynn, J.) (trial court refers to § 14-295 as a statute that authorizes "punitive multiple damages").

§ 14-295 allows for the imposition of double or treble damages as determined by the trier of fact where a defendant, with reckless disregard, operates a motor vehicle in violation of General Statutes §§ 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a. The statutes enumerated therein are descriptive of wrongs against Connecticut. This court concludes that § 14-295 is a penal statute and, pursuant to § 52-599(c)(3), the violations addressed therein do not survive the death of the operator. Accordingly, the motion to strike count four and the corresponding prayer for relief are granted.

COUNT FIVE

With respect to count five, the issue is whether a non-operator owner of a motor vehicle may be held vicariously liable for statutory punitive damages. The defendant, in his individual capacity, argues that the non-operator owner of a motor vehicle cannot be held vicariously liable for statutory punitive damages. The plaintiff, in response, argues that punitive damages, as provided by § 14-295, have abrogated the common law and, therefore, statutory damages can be assessed vicariously against a non-operator owner.

Prior to 2003, the date of the Connecticut Supreme Court's decision in Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003), there was a split of authority on this issue among the judges of the Superior Court. On one side of the split, the judges held that §§ 14-295, 52-182⁵ and 52-183⁶ did not contain language allowing for an expansion of the common-law restraint on the imposition of multiple damages upon a non-operator owner for the reckless conduct of the defendant operator. See Clark v. Gallup, Superior Court, judicial district of Tolland, Docket No. CV 00 074117 (June 13, 2001), Sferrazza, J.) (29 Conn. L. Rptr. 655); Little v. Bonesse, Superior Court, judicial district of New Haven, Docket No. 427368 (July 5, 2000, Levin, J.) (27 Conn. L. Rptr. 458); Lyte v. Kane, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 063138 (August 25, 1998, Flynn, J.) (23 Conn. L. Rptr. 136).

5 General Statutes § 52-182 provides: "Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."

6 General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."

Conversely, decisions on the other side of the split held that multiple damages under § 14-295 could be assessed against the non-operator owner as a result of the defendant operator's violation of one or more of the motor vehicle statutes. See Santillo v. Arredono, Superior Court, judicial district of New Haven, Docket No. 442323 (March 21, 2001, Blue, J.) (29 Conn. L. Rptr. 458); McCarthy v. Yantorno, Superior Court, judicial district of Litchfield, Docket No. CV 99 0078474 (August 18, 1999, Sheedy, J.) (25 Conn. L. Rptr. 377); Prezioso v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. 96 0337357 (December 24, 1997, Skolnick, J.) (21 Conn. L. Rptr. 274).

In Matthiessen, the Connecticut Supreme Court addressing the issue of punitive damages in a case involving § 52-183, the agency statute, opined that allowing an award of punitive damages against someone who was only vicariously liable was contrary to the well established common law. The court noted that "[w]hile the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature . . . Thus, [w]hen a statute is in derogation of common law . . . it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed . . . The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law." (Citation omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 838-39.

In Matthiessen, the Supreme Court, continuing its analysis, emphasized that: "By its plain terms, the sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant: unless the defendant introduces persuasive evidence that no agency relationship exists, the plaintiff need not present any evidence to prove it but, instead, may rely entirely on the statutory presumption. From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that, under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment . . . In the absence of a relationship between the owner and the operator of a motor vehicle such that the liability of the operator is imputed to the owner, either by statute or at common law, a plaintiff has no recourse against the owner. Section 52-183 does nothing more than create a rebuttable presumption of such a relationship between the owner and the operator of a motor vehicle, namely, an employer-employee relationship, which, under the common-law principle of respondeat superior, renders the owner vicariously liable for compensatory damages arising out of the negligent and reckless conduct of the operator, but not vicariously liable for punitive damages stemming from that conduct." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 839-40.

Strictly construing § 52-183, and applying the presumption that the legislature did not intend to abrogate the common-law doctrine, which excludes those who may be vicariously liable in civil actions from paying punitive damages, the court observed: "Nothing in the statute suggests that the non-operator owner of a motor vehicle may be held liable for any damages other than those customarily assessed against an employer for the tortious conduct of an employee, namely, compensatory damages. Put differently, although § 52-183 relieves an injured plaintiff of the burden of going forward with evidence of an agency relationship between the non-operator owner and the operator of the vehicle that caused the plaintiff's injuries, there is nothing in the statutory language to suggest that the liability of the vehicle's owner for the negligent or reckless conduct of the vehicle's operator is any greater than that of an employer for the tortious conduct of his employee. Because an employer is not vicariously liable for punitive damages arising out of the conduct of his employee, we see no reason to conclude that § 52-183 impliedly gives rise to such liability on the part of a non-operator owner of a motor vehicle." Matthiessen v. Vanech, supra, 266 Conn. 840.

It is clear from the Supreme Court's decision in Matthiessen that an employer is not normally vicariously liable for punitive damages arising out of the conduct of an employee. Furthermore, nothing in § 52-183 indicates that the legislature clearly intended to abrogate the common law when enacting the statute. The question arising in the present case is whether § 14-295, when coupled with § 52-183,⁷ allows the imposition of punitive damages for a defendant who is only vicariously liable, contrary to well established common law.

7 The complaint alleges that "[Ms.] Ferraro, his daughter was operating this vehicle as [the defendant's] agent under § 52-183, . . ." thus, specifically invokes § 52-183, the agency statute, rather than § 52-182, the family car statute.

A history of § 14-295 is informative. "The antecedent of § 14-295 was a 1797 statute entitled An Act to Regulate Stage and Other Carriage Drivers which provided for punitive damages for certain violations of the rules of the road . . . The statute was considered a penal statute . . . [T]he triple damages are given the injured party, not as compensation for the injury done him, but as a punishment of the defendant for an offense committed against the State . . . The purpose of the statute was to deter acts that might endanger public safety and protect the person and property of the traveler upon the highway from injury resulting from the unlawful use of it by another . . . A version of a statute allowing for multiple damages for unlawful use of the road has been in effect continuously since 1797, although the nature of the rules-of-the-road violations has changed over time and the statute was amended in 1909 to shift the decision to award multiple damages from the jury to the court, an amendment subsequently found to be a violation of the state constitution in 1988." (Citations omitted; internal quotation marks omitted.) Hopwood v. Sciarretta, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 00759345 (July 11, 2002, Lager, J.) (32 Conn. L. Rptr. 475.)

"A jury must make certain specific factual determinations in order to impose statutory punitive damages under § 14-295. Whether to award punitive damages is a different question than what compensatory damages ought to be. The findings of fact on which a jury might decide to award increased damages are different from those necessary for compensatory damages . . . Merely alleging a deliberate or reckless violation of one of the predicate statutes does not suffice to describe the conduct which would entitle a plaintiff to the extraordinary remedy available under § 14-295. To state a cause of action under § 14-295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff's injury." (Citation omitted.) Hopwood v. Sciarretta, supra, 32 Conn. L. Rptr. 477.

"The 1797 act and it[s] successors specifically imposed liability upon the owner of the vehicle when the operator was unable [to] pay punitive damages for which he had been found liable. Under the act, a plaintiff could bring a writ of scire facias to collect the punitive damages from a master for the actions of his servant . . . The statute remained essentially the same until 1905 when it was amended to impose substantial restrictions on the injured person's ability to recover against the owner. The restrictive statute was then repealed in 1921 without a replacement, but in 1925 the legislature enacted a statute which imputed liability to the lessor of a motor vehicle for the conduct of the operator of the motor vehicle. The provisions of that law are now codified in § 14-154a . . . No similar provisions imposing liability on the owner of a vehicle for the conduct of an operator have come forward to the present day § 14-295." (Citations omitted.) Hopwood v. Sciarretta, supra, 32 Conn. L. Rptr. 477.

"The court is not aware of a statute which presently imputes liability for treble damages to an employer-owner of a motor vehicle for reckless operation by his employee-operator. The legislature clearly could have chosen to continue to impose liability under these circumstances, but it did not. A cause of action derived from statute cannot be judicially expanded to apply to situations for which the legislature has declined to provide relief . . . The language of § 14-295 speaks only of multiplied damages against those who drive recklessly . . . This is consistent with the penal and remedial purposes of the statute which allow an additional award to a plaintiff not for compensation for injury but as a reward for securing the punishment of one who has committed an offense which the legislature deems to be a public wrong." (Citations omitted; internal quotation marks omitted.) Hopwood v. Sciarretta, supra, 32 Conn. L. Rptr. 477.

At issue in the present case is the implication of the most recent amendment to § 14-295, passed in 2003, which added the following language: "The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the vehicle." This language resulted from the passage of Number 03-250 of the 2003 Public Acts. The House and Senate bills which form the predicate for the language articulated in the public act, and eventually in the statute, demonstrate that the decision to exclude lessors and rental companies from liability, unless they were the operators of the vehicle, was in direct response to the threat of large leasing companies leaving the state of Connecticut. The fear was that, without the passage of the amendment, the leasing companies would be exposed to significant liability in the form of punitive damages. See 46 S. Proc., Pt. 14, 2003 Sess., pp. 4161 et seq.

Since the decision in Matthiessen, some Superior Court decisions have adopted the position that the legislature intended § 14-295 to hold all non-operator owners vicariously liable. In analyzing the problem, the courts emphasize that, when amending § 14-295 in 2003 in order to add language specifically excluding liability for punitive damages against the owners of a leased vehicle who were not also operators, the legislature could have simultaneously excluded all non-operator owners from liability, but chose not to. The decision by the legislature not to explicitly exclude all nonowner operators from liability in the statutory language of § 14-295, so the argument goes, should lead to the conclusion that the legislature did intend for all other nonowner operators to be vicariously liable for punitive damages. See, e.g., Goss v. Wright, Superior Court, judicial district of New Haven, Docket No. CV 05 5001164 (March 15, 2006, Lopez, J.) (40 Conn. L. Rptr. 882).

Despite this argument, however, "a strong trend has developed in favor of applying Matthiessen's broader holding to claims brought under § 14-295, thereby barring the recovery of punitive damages against parties who are only vicariously liable for the acts of others." Zwicker v. Sabetta, Superior Court, judicial district of New Haven, Docket No. CV 07 5008853 (February 1, 2008, Skolnick, J.).⁸ Indeed, the trend of post- Matthiessen decisions indicate that, "by its plain language, § 14-295 applies only to an operator of a vehicle, and not to its nonoperating owner . . . The last sentence of § 14-295, concerning the owner of a rental or leased motor vehicle, does not change this analysis." (Citations omitted; internal quotation marks omitted.) Redding v. Boucher, Superior Court, judicial district of New Britain, Docket No. CV 07 5003381 (August 22, 2007, Shapiro, J.). If anything, "[i]t appears that the legislature has clarified its original intent by the addition of the last sentence, and . . . neither General Statutes § 52-182 nor § 52-183 permits imposing liability for double or treble damages on the non-operator owner of a motor vehicle. Section 14-295 of the statutes unambiguously applies to vehicles operated by a defendant. Punitive damages are therefore inappropriate given the language of the law which authorizes them. The purpose of statutory punitive damages is to deter egregious conduct and imposing them in his case could not serve to deter the owner from conduct in the manner of operation of the motor vehicle by the driver which, albeit wrongful, the owner did not cause or have reason to know about or expect." (Emphasis added; internal quotation marks omitted.) Andrews v. Teele, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177457 (August 16, 2005, Matasavage, J.). It is noteworthy that the Supreme Court, in Matthiessen, when faced with the challenge of interpreting 14-154a,⁹ which renders the owner-lessor of a motor vehicle vicariously liable for damages, including punitive damages, arising out of the tortious conduct of the operator-lessee, stated: "The legislature's insertion, in 1929, of the phrase `liable to the same extent as the operator would have been liable if he had also been the owner' evinced an unambiguous intent to render the owner liable for all damages, punitive damages included, properly assessed against the operator, in derogation of the common law . . . It is reasonable to presume, therefore, that, if the legislature had intended for § 52-183 to abrogate the common-law rule against vicarious liability for punitive damages, it would have used language similarly explicit to that contained in § 14-154a. The fact that the legislature did not employ such language strongly suggests a contrary intent." (Citation omitted.) Matthiessen v. Vanech, supra, 266 Conn. 842-43.

8 See also Faggio v. Brown, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 05 4003488 (June 12, 2007, Beach, J.) [43 Conn. L. Rptr. 643] (court grants summary judgment as to statutory recklessness counts and finds that double and treble damages could not be assessed against an employer vicariously unless the employer fits into one of the exceptions outlined in Stohlts v. Gilkinson, 87 Conn.App. 635, 867 A.2d 860 (2005)).

9 General statutes § 14-154a(a) provides that "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable it he had also been the owner." (Emphasis added.)

Section 14-295 does not contain express language rendering all non-operator owners vicariously liable for punitive damages. It cannot, therefore, be presumed or implied that the legislature intended to abrogate common law when enacting § 14-295. Rather, one need only to look at the plain language of the statute which specifically states that double and treble damages can be assessed against a person who operated a motor vehicle deliberately or with reckless disregard for the safety of others. The amendment of the statute via Number 03-250 of the 2003 Public Acts does not change this result. If the legislature had intended § 14-295 to hold all non-operator owners vicariously liable for double and treble damages, it could have so provided. It did not.

Considering the history of § 14-295, the plain language of the statute, and the requirement that it be strictly construed, it is reasonable to presume that if the legislature had intended § 14-295 to abrogate the common-law rule against an award of punitive damages for those who are only vicariously liable, they would have used explicit language indicating that intent, as they had in similar cases. For the foregoing reasons, the defendant's motion to strike count five is granted.

CONCLUSION

The motion to strike count four, as well as the corresponding prayer for relief, is granted, because § 14-295 is a penal statute, therefore, count four does not survive the death of the decedent.

The motion to strike count five, and the corresponding prayer for relief, is granted, because double and treble damages cannot be assessed against a non-operator owner of a vehicle upon a theory of vicarious liability.