Opinion
No. CV07-5010093S
January 11, 2008
The matter presently before the court involves the July 29, 2005 multi-vehicle accident on Avon Mountain in Avon, Connecticut. The operative complaint is the revised complaint dated July 26, 2007, which is comprised of 23 counts. In the revised complaint, the plaintiffs, David Wilcox, Donna Wilcox, and Shawn Wilcox allege that the defendant Webster Insurance Company (Webster) procured insurance coverage for their business, American Crushing and Recycling, LLC (American Crushing), through Acadia Insurance Company (Acadia), for the policy period of September 1, 2004 through September 1, 2005. Essentially, the plaintiffs allege that Acadia has failed to properly defend and indemnify them for the claims arising from the July 29, 2005 accident, and that as a result, they have been exposed to criminal prosecution by the State of Connecticut. The main issue in the lawsuit is the existence of the Acadia policy in connection with the July 29, 2005 accident, and ultimately, a determination will need to be made as to whether or not American Crushing had insurance coverage in place on July 29, 2005.
The plaintiffs allege that David Wilcox and Shawn Wilcox are owners and members of American Crushing, and that Donna Wilcox is an employee of American Crushing.
Procedurally, this civil action has had a somewhat involved history. Significantly, on May 10, 2007 Acadia moved to dismiss the counts directed against it; that motion was granted by the court, Zoarski, J., on October 25, 2007, and the plaintiffs filed an appeal on November 19, 2007. On August 30, 2007, Webster filed a motion to dismiss/motion to strike; that motion, and Webster's objection, was argued on December 3, 2007 before Judge Robinson and awaits a ruling. On August 31, 2007, the plaintiffs moved to compel the depositions of Webster employees Christopher Brodeur, Lisa Gerrish, and Noel Janovic (collectively, Webster employees). Webster, on September 4, 2007, moved to stay all discovery in the case pending resolution of their motion to dismiss/motion to strike and Acadia's motion to dismiss.
As set forth in their motion, the plaintiffs indicate that they had attempted to take the depositions of the Webster employees on several occasions beginning May 8, 2007.
By the time the matter was argued on December 3, 2007, Acadia's motion to dismiss had been granted. Although the court file contains no indications of the court's rulings on Webster's motion to stay and the plaintiffs' objection thereto, this court accepts counsels' representations in their briefs and at oral argument, that the court, Robinson, J., denied Webster's motion to stay and ordered that the depositions of the Webster employees be conducted within sixty days; i.e. on or before February 1, 2008.
Following the denial of the Webster motion to stay, the plaintiffs, on or about December 12, 2007, noticed the depositions of the Webster employees, to take place on January 9, 2008. Despite the order of Judge Robinson that the depositions of the Webster employees take place before February 1, 2008, on December 26, 2007, Acadia moved to stay discovery pending resolution of the plaintiffs' appeal.
On December 28, 2007, the State of Connecticut, through the Division of Criminal Justice (DCJ), moved to intervene for the purpose of requesting a stay of all depositions. The DCJ filed an amended motion to intervene and memorandum of law in support thereof, on January 4, 2008, and essentially requests a stay of all deposition discovery pending completion of the plaintiff's criminal proceedings. On January 4, 2008 the plaintiffs filed their objections to both the DCJ's and Acadia's motions. Also, on January 4, 2008, Webster filed a motion for protective order seeking to postpone the depositions of the Webster employees until the motions to stay are decided. Lastly, on January 7, 2008, the plaintiffs filed their reply brief to the DCJ's motion to stay.
The motions were written on the short calendar, on an expedited basis, for January 7, 2008, and argued on January 8, 2008. Following argument, the court ordered from the bench a temporary stay as to the depositions of the Webster employees, until such time it issued its written decision on the remaining motions.
At oral argument, the parties indicated that there was no objection to the DCJ's motion to intervene and therefore, the merits of the DCJ's motion to stay were addressed by agreement.
Essentially, the court orally granted Websters' motion for protective order.
ACADIA'S MOTION TO STAY AND PLAINTIFFS' OBJECTION THERETO
In its motion to stay, Acadia seeks to have all discovery stayed, all deposition discovery stayed, or, in the alternative, an order excusing Acadia from participating in discovery without prejudice for Acadia to conduct any necessary discovery in the event the judgment of dismissal is reversed. In support of its motion, Acadia argues that a stay furthers both judicial economy and the parties' interests, and that without the stay, Acadia, to its prejudice, would be required to defend its judgment of dismissal at the Appellate Court level while simultaneously continuing to defend its interests in the trial court. The plaintiffs, in their objection, argue that Acadia would not be prejudiced from continued discovery as they would not be required to participate. The plaintiffs argue that Acadia cites no authority upon which the court has a basis to issue a stay. The plaintiffs submit that a stay will only further prejudice the plaintiffs, who have been "severely prejudiced by the continued stall of their case."
The court file indicates that the plaintiffs filed both requests for admission and requests for disclosure and production against the defendants, and that objections to the requests were filed by both defendants. However, the court file further indicates that with the exception of an August 31, 2007 Motion for Order of Compliance which has not been ruled on, the plaintiffs have not furthered their efforts to obtain compliance with the requests.
The plaintiffs argue that the authority cited by Acadia which would authorize the court to issue a stay, specifically, Practice Book Sections 61-12 and 13-5, do not apply to the present matter. The court agrees with the plaintiffs insofar as Acadia relies on P.B. § 61-12, which authorizes a trial judge to stay his or her own order during the pendency of an appeal. The court disagrees with the plaintiffs' argument that P.B. § 13-5 is inapplicable because P.B. § 13-5 specifically applies to "motion(s) by a party from whom discovery is sought," and Acadia is no longer a party.
Practice Book Section 61-12 provides in relevant part as follows:
In noncriminal matters in which the automatic stay provisions of section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court. . .
Practice Book Section 13-5 provides in relevant part as follows:
Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions. . .
The plaintiffs also argue that P.B. § 13-5 is inapplicable insofar as "the discovery was not sought from them"; Acadia's motion to stay, however, clearly argues for, in the alternative, a stay of all discovery — not limited to the depositions, of the Webster employees.
It is within the court's discretion to impose a stay of discovery as justice requires. See Ritchie v. Nyfix, Superior Court, judicial district of Stamford-Norwalk, CV06-4009324S, Nadeau, J., (February 22, 2007) (granting defendant's motion to stay discovery until resolution of the pending motion to dismiss). The rules of practice are to be liberally interpreted so as to advance justice. Practice Book § 1-8.
Judge Robinson's ruling denying Webster's motion to stay pending the disposition of the motion to dismiss remains the law of the case. However, the question before this court is whether, pursuant to Acadia's motion to stay, all or part of the discovery process should be stayed pending the resolution of Acadia's appeal. Acadia advances the arguments of judicial economy as well as the parties' interests — including the burden on Acadia to simultaneously defend its interest at the appellate and trial levels — in support of its motion. Both arguments have merit. The plaintiffs, on the other hand, argue that they will be prejudiced by the stay, and cite their interest in having their claims resolved, where they have suffered tremendous financial loss and remain exposed to substantial claims by the victims of this tragic incident. The plaintiffs' arguments also have merit.
At oral argument, the plaintiffs also contended that a stay of discovery could affect their ability to contest Webster's motion to dismiss. The court recognizes that there are due process implications surrounding the ability to conduct discovery once a motion to dismiss has been filed. However, any stay issued by the court now would not affect the plaintiffs' ability to defend the motion to dismiss, as Webster's motion to dismiss has been fully briefed and argued, and merely awaits decision by Judge Robinson.
The present case is distinguishable from Acorn Tech. Campus, LLC v. West Haven Planning and Zoning, 50 Conn.Sup. 407 (2007), where Judge Corradino, presented with the situation where the motion to dismiss had not yet been argued and the discovery at issue may have affected the plaintiff's ability to defend the motion, denied the defendant's motion to stay discovery pending disposition of the defendant's motion to dismiss.
On balance, the court finds that the plaintiffs' interests in timely adjudication of their claims outweighs the interest in a stay of all discovery requested by Acadia. The parties agree, however, that the least restrictive order, should a stay be granted, would be the third option proposed by Acadia — i.e., that discovery can proceed with Acadia excused from participation, without prejudice to Acadia to proceed with discovery in the future, pursuant to the standards set forth in Practice Book Section 13-2 et seq., should an Appellate Court reverse the judgment of dismissal for Acadia. The court finds that on balance, the interests of justice requires that such order, excusing Acadia's participation, without prejudice to Acadia, should enter, and that there exists good cause to do so. Should the remaining parties proceed with any discovery during Acadia's appeal, they do so at the peril of having, for example, depositions reconvened to allow Acadia's participation.
Acadia's motion is therefore granted in part.
DCJ'S MOTION TO STAY AND PLAINTIFFS' OBJECTION THERETO
The DCJ moves for a stay of all discovery in the present matter until the criminal trials of David Wilcox and Donna Wilcox, which have been assigned a firm trial date of March 3, 2008, have been completed. The DCJ contends that the factual issues in the civil and criminal proceedings are substantially similar, and that the majority of the state's witnesses at the criminal trial are likely to be called to testify in the civil trial. The DCJ argued that the plaintiffs would be able to circumvent the more restrictive rules of criminal discovery should they be permitted to proceed with the depositions and discovery in this civil matter. They further contend that the discovery, should it be had, would reveal the states' strategy, allow the plaintiffs a "dry run" on the states' witnesses, and not allow the state to protect the publics' interest in prosecuting crime. In their objection to the DCJ's motion to stay, the plaintiffs contend that the civil and criminal actions are not factually similar. The plaintiffs further argue that the motion should be denied, as the DCJ "has failed to demonstrate any concrete or specific harm that could come to their case if the depositions were to be held." They contend that any stay would further harm them, due to the media and public interest in the case and their desire to have their day in court. The plaintiffs argue that the plaintiff Shawn Wilcox has not been charged with any crimes and that a stay would deprive him of the opportunity to continue with his civil action. Finally, the plaintiffs contend that a stay will cause them to be in violation of Judge Robinson's order that the Webster depositions be completed by February 1, 2008.
Counsel for the DCJ represented at oral argument that all three of the Webster employees, whose depositions had been scheduled for January 9, 2008, were state witnesses whose testimony was central to the states' case.
The plaintiffs did not dispute that discovery in this action could lead to disclosure of evidence not otherwise available to them in the criminal proceedings.
The revised complaint does allege that "the plaintiffs" have been forced to defend criminal charges.
An examination of the arrest warrant and accompanying affidavit produced by the DCJ in support of its motion reveals that, indeed, with respect to David Wilcox, the crimes with which he is charged arise from the alleged attempts of David Wilcox and Donna Wilcox to reinstate insurance coverage on the dump truck involved in the accident on July 29, 2005. The issues in the civil and criminal proceedings overlap extensively. The court rejects the plaintiffs' argument that the actions are not factually similar, and finds that the civil and criminal actions are parallel proceedings.
The DCJ represents that the arrest warrant for Donna Wilcox is virtually identical. No mention is made regarding the arrest warrant for Shawn Wilcox, although as mentioned in the preceding footnote, the revised complaint makes numerous references to criminal proceedings against "the plaintiffs." See e.g., Revised Complaint dated July 26, 2007, Count One, ¶ 31.
As a starting point, where there are parallel civil and criminal proceedings, the court has authority to stay discovery, or to stay an action in its entirety, if required by the interests of justice. "It is unequivocally a discretionary power of a tribunal to stay proceedings where there are parallel civil and criminal proceedings. The Constitution, therefore, does not ordinarily require a stay of civil proceedings, pending the outcome of criminal proceedings. Nevertheless, a court may decide in its discretion to stay civil proceedings, postpone civil discovery or impose protective orders and conditions when the interests of justice seem to require such action The court must make such determinations in the light of the particular circumstances of the case." Farricielli v. State, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 5386369 (January 8, 1997, McWeeny, J.), quoting Securities and Exchange Commission v. Dresser Industries, Inc., 628 F.2d 1368, 1375, cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980).
In Farricielli the court dismissed the appeal from the decision of the hearing officer denying motion to stay the administrative proceedings in their entirety filed by the controlling officer of the corporate plaintiffs, where the controlling officer was also facing criminal charges relating to his alleged activities with solid waste disposal and asbestos; the court considered the controlling officer's concern that should the administrative action be permitted to continue, the basis of his defense would be exposed to the prosecution; here, the court was faced with "a potentially massive environmental problem with evident public health concerns."
"In making [the] determination [to stay a matter], the court should balance: (1) the private interest of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice of the plaintiffs if delayed; (2) the private interests of and burden on the defendant; (3) the convenience to the courts; (4) the interest of persons not parties to the civil litigation; and (5) the public interest." Twenty First Century Corp. v. LaBianca, 801 F.Sup 1007, 1010 (E.D.N.Y. September 25, 1992).
"[A] trial judge should give substantial weight to [the public interest in law enforcement] in balancing the policy against the right of a civil litigant to a reasonably prompt determination of his civil claims or liabilities." (Internal quotation marks omitted.) Id., quoting Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963).
With respect to the first and second factors, the DCJ requests a stay through April an approximate 14-week stay. While the plaintiffs certainly have an interest in proceeding with their civil litigation, the stay would affect discovery only, and not the action in its entirety. The civil action itself is relatively new, the defendants having been served on March 16, 2007. The pleadings remain open, the case is not on a trial list, and would not be exposed to trial in the immediate future. Very little prejudice would result to the plaintiffs, two of whom are faced with defending serious criminal charges in less than two months. There will be no delay of the trial of the civil action, but only a temporary delay of discovery, should the court grant DCJ's motion to stay. Any additional financial burden on the Wilcoxes, or possible public scrutiny by virtue of the fact that discovery will be delayed by three months in the civil matter, is de minimis. See State v. Tomasso, Superior Court, judicial district of Hartford, Docket No. CV044004293, November 19, 2004 (Langenbach, J.) [ 38 Conn. L. Rptr. 304]. (In CUTPA action brought by state attorney general against eleven contractors in connection with award of state contracts, granting United States' motion to intervene and stay of discovery, pending the resolution of the federal prosecution of six of the contractors; notify that "the defendants' right to access the court to defend themselves against civil charges in an expeditious manner, while significant, is subject to reasonable limits designed to vindicate other significant public interests").
In our case, the first two factors involve similar considerations, as the Wilcoxes are both the plaintiffs in the civil litigation and the criminal defendants.
See Parizo v. State of Connecticut, Superior Court, judicial District of Hartford, Docket No. CV030828527, January 3, 2005 (Shapiro, J.) (granting motion to stay civil case in its entirety, pending resolution of nearly identical federal suit).
The plaintiffs state in their objection that "[t]he media and the public have paid significant attention to this case. . ." The court rejects that assertion, as the media focus has certainly centered on the criminal, and not the civil, proceedings.
With respect to the plaintiffs' argument that a stay would prejudice the rights of Shawn Wilcox who, plaintiffs argued, was not part of the criminal prosecution, the court would again note that the allegations of the plaintiffs' revised complaint indicate to the contrary. In any event, there is no requirement that the parties in the parallel proceedings be identical. As an example, and as more fully discussed below, the courts have granted stays in civil cases brought by crime victims. E.g. Doe v. Amuah, infra.
The third factor, the convenience to the courts, was not addressed by the parties. Temporarily staying discovery in this civil matter would certainly avoid any inconvenience to the court in the criminal matter with respect to the scheduling of the testimony of the states' witnesses, who would, in a short period of time, be called upon to testify in parallel civil and criminal matters, should the stay not be granted. In fact, should civil discovery be temporarily stayed, later civil discovery may be streamlined, and issues may be narrowed, since transcripts from the criminal trial will be available to the civil parties. See Twenty First Century Corp. v. LaBianca, supra, 801 F.Sup. 1011. See also Cuartero v. United States, Docket No. 3:05CV 1161 (RNC) (D.Conn. 2006) (Martinez, M., J.) (granting defendant's motion to stay discovery pending resolution of defendant's motion to dismiss, where plaintiff also had administrative appeal pending; relying on Fed.R.Civ.P. 26(c), where court has discretion to stay discovery for good cause, the court held that allowing the discovery to proceed would be inefficient, would likely result in additional motion practice, and would be unduly burdensome to the defendant).
With respect to the fourth factor, the interest of persons not parties to the civil litigation, the court agrees that any determination that there was coverage available to the plaintiffs to cover the claims of the accident victims, or, arguably, any monetary award to the plaintiffs in this civil action which might one day be accessed by the victims, is a consideration. However, a temporary delay of the discovery process in this lawsuit does not translate into a delay of the trial. Parties routinely close the pleadings and claim the matter to the trial list before even commencing any discovery. In short, there will be little if any impact on non-parties to this litigation of a short stay of discovery.
Finally, with respect to the public interest, the court agrees with the DCJ's position that the states' ability to protect the public's interest in prosecuting crime would be thwarted if the plaintiffs, intentionally or unintentionally, were permitted to circumvent the criminal discovery process by accessing the more liberal discovery available in civil litigation. "[T]he entire division of criminal justice rely upon the statutes and rules that regulate criminal discovery and they are specially interested in the proper prosecution of criminal cases"; Kelly v. Freedom of Information Commission, 221 Conn. 300, 314 (1992). See Shuckra v. Sencio, Superior Court, judicial district of Hartford, Docket No. 02-0816539, October 23, 2002, (Hennessey, J.) (granting motion to stay depositions of state investigators, in civil case, where criminal charges remain pending); Doe v. Amuah, Docket No. 3:93CV02454 (AHN) (D.Conn. 1994) (Nevas, J.) (granting state's motion to stay discovery in civil suit brought by sex assault victim, where criminal charges against the defendant remain pending); Doe v. Lenarz, Docket No. CV05 4012970 Superior Court, judicial district of Hartford, July 5, 2006 (Tanzer, J.) [ 41 Conn. L. Rptr. 586] (granting state's motion to stay discovery in civil suit brought by sex assault victim, where criminal charges against the defendant remain pending); Rocque v. Cote, Superior Court, judicial district of Hartford, Docket No. CV99 0588424, November 28, 2001 (Hennessey, J.) [ 31 Conn. L. Rptr. 64] (granting state's motion to stay civil depositions of states' inspectors, where the defendant was defending both civil and criminal cases involving alleged environment crimes arising out of the same cause of conduct). But see State v. Senick, Superior Court, judicial district of New Haven at Meriden, Docket No. CV04 4000272, January 28, 2005 (Wiese, J.) [ 38 Conn. L. Rptr. 560] (rejecting the state's argument that allowing the civil deposition to proceed during the pendency of the criminal proceedings would circumvent the criminal discovery rules, and denying the state's motion to stay discovery, noting that the state was unable to specifically identify any prejudice to the state should the deposition go forward).
The court agrees that the public interest in the prosecution of alleged criminal activity is strong. Here, the plaintiffs would be circumventing the criminal discovery process should the civil depositions proceed. Additionally, permitting the discovery may very well reveal the states' strategy, and could possibly have a chilling effect on the states' witnesses. In light of the similar nature of the proceedings, the advanced stage of the criminal proceedings, the short duration of this stay, having considered and balanced the interests and prejudices to the parties, the interests of non-parties, the public interest, and for the other reasons articulated above, the DCJ's motion to stay the civil discovery proceedings pending the outcome of the criminal trials is granted, to April 15, 2008, or the disposition of the criminal charges, whichever occurs first. The burden will be on the DCJ, who moved for this stay, to immediately notify the court of the disposition of the criminal charges so that the stay can be lifted earlier if the criminal charges are disposed of prior to April 15, 2008. To allay the plaintiffs' concerns regarding compliance with Judge Robinson's earlier discovery order, the parties will have sixty days from the termination of this stay within which to depose the Webster employees. In the event that there is an unforeseen delay in the disposition of the criminal matters, the court will re-address an extension of the stay upon request of the DCJ.
Thus, all discovery will be stayed until the disposition of the criminal matters, or April 15, 2008, whichever occurs first. With respect to Acadia, once discovery has resumed, Acadia will be excused from participation without prejudice.
For the foregoing reasons, the motions to stay are granted in part, the objections are overruled, and the motion for protective order is granted.