David Lockhart v. Robert J. Naccarato et al. (2009)

MEMORANDUM OF DECISION

This is a decision on a defendant's motion to strike, dated September 3, 2009.   By complaint dated July 1, 2009, the plaintiff, David Lockhart, brings suit against the defendant, Robert J. Naccarato, Esq., administrator of the estate of Francisco Hernandez Rodriguez (the decedent), for claims related to a motor vehicle accident involving the plaintiff and the decedent in Thomaston, Connecticut on October 24, 2008.   The plaintiff alleges four counts against the defendant:  count one, negligence of the decedent;  count two, common-law recklessness of the decedent;  count three, statutory recklessness of the decedent pursuant to General Statutes § 14-295;  and count four, negligence of Lynn Rossi, the owner of the motor vehicle.

Count two of the plaintiff's complaint alleges facts involved in the motor vehicle accident and that “[t]he collision was caused by the reckless, willful and/or wanton misconduct of the decedent ․ As a result of the reckless, willful and/or wanton misconduct of the decedent ․ the plaintiff ․ suffered ․ injuries ․”

Count three of the plaintiff's complaint also alleges the facts involved in the motor vehicle accident and that “[t]he collision was caused by the reckless disregard for the safety of others in violation of § 14-295 of the Connecticut General Statutes of the decedent ․ As a result of the reckless disregard for the safety of others in violation of § 14-295 of the Connecticut General Statutes of the decedent ․ the plaintiff ․ suffered ․ injuries ․”

The plaintiff's second and third prayers for relief request:  “2. Punitive and exemplary damages as prescribed by law as to the Second Count;  3. Double or treble damages pursuant to Connecticut General Statutes § 14-295 as to the Third Count.”

On September 4, 2009, the defendant filed a motion to strike counts two and three of the plaintiff's complaint together with the second and third prayers for relief therein.   The defendant also filed a memorandum in support thereof.   The plaintiff filed an objection to the motion and a supporting memorandum on September 25, 2009.   The matter was heard at short calendar on November 9, 2009.

In his memorandum of law in support of the motion to strike, the defendant argues that counts two and three and the second and third prayers for relief should be stricken because “a plaintiff cannot maintain a claim for Common Law and statutory punitive damages against a decedent ․” The defendant states that “[i]t has been determined that the essence of the purpose of § 14-295 is overwhelmingly penal and that, under C.G.S. § 52-599(c)(3), a cause of action based upon it does not survive the death of the tortfeasor.”   The defendant cites Superior Court authority for the proposition that “claims predicated on C.G.S. § 14-295” do not survive the death of the tortfeasor.   The defendant acknowledges that there is no appellate authority on this issue and that one Superior Court judge has found § 14-295 not to be penal.   Finally, the defendant argues that the plaintiff's common-law recklessness claims do not survive the death of the wrongdoer pursuant to § 52-599(c)(2).

In his objection to the motion to strike, the plaintiff argues that he “has alleged sufficient facts to support claims for common-law recklessness and statutory recklessness pursuant to Connecticut General Statutes Section 14-295.”   Specifically, the plaintiff argues that his claim for common law recklessness and the corresponding prayer for relief survive the death of the decedent because “an award of common law punitive damages would serve the purpose of deterring others from engaging in the kind of dangerous, reckless conduct that the defendant's decedent allegedly engaged in.”   The plaintiff further argues that his claim for statutory recklessness pursuant to § 14-295 and the corresponding prayer for relief are allowable because § 14-295 is not a penal statute where it “contains no provision for a punishment or penalty imposed by the state for a crime against the state.”   Finally, the plaintiff contends, in contravention of the defendant's argument, that appellate authority exists on the § 14-295 issue, “at least to the extent that [the two cases] define a penal statute in such a way that it is clear that § 14-295 does not fit that definition.”

I.

Practice Book § 10-39 provides in relevant part:  “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   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).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․” (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).  “Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Citation omitted;  internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

II.

The defendant seeks to strike count two and the corresponding prayer for relief, claiming that a plaintiff cannot maintain a claim for common-law punitive damages against a decedent.  General Statutes § 52-599(a) provides:  “(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.”  C.G.S. § 52-599(c) provides:  “The provisions of this section shall not apply:  (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute.”

In the second count of the plaintiff's complaint and the second prayer for relief, the plaintiff alleges “common law recklessness” and seeks “[p]unitive and exemplary damages as prescribed by law as to the Second Count.”   The defendant argues that § 52-599(c)(2) renders count two legally insufficient because common-law recklessness claims do not survive the death of the alleged tortfeasor pursuant to that subsection.

In Welcome v. Ouellette-McGregor, Superior Court, judicial district of Hartford, Docket No. CV 01 0811039 (November 21, 2002, Hennessey, J.) [33 Conn. L. Rptr. 454], the defendants moved to strike the plaintiff's second count sounding in common-law recklessness, arguing that the claim could not survive the decedent's death pursuant to § 52-599(c)(1) and (2).   Specifically, the defendants argued “that Ouellette's continued existence is necessary to invoke the purpose of punitive damages to punish and deter and that without his presence neither party can offer evidence to establish or refute whether Ouellette had the state of mind required to establish a claim of recklessness.”  Id.

“Although General Statutes § 52-599(c) may act as a bar, the courts have construed this exception narrowly ․ In upholding the survival of these actions, the courts considered the availability of evidence other than the testimony of the deceased and the fact that the burden of proof rests with the plaintiff ․ The state of mind of recklessness may ․ be inferred from conduct ․ In addition, it is noted that, in the present case, the plaintiff is the party that has the burden of demonstrating Ouellette's state of mind at the time of the accident.   At trial, the defendants will have the opportunity to refute the plaintiff's evidence.   This court does not believe that the defendants' ability to offer a defense to the present action will be impaired by Ouellette's death to the extent that the plaintiff's action should be stricken.   Therefore, the motion to strike ․ on the basis that the claims for recklessness stated therein cannot survive the death of Ouellette is denied.” ¹  (Citations omitted;  internal quotation marks omitted.)  Id. See also Florio v. DoCarmo, Superior Court, judicial district of Waterbury, Docket No. CV 03 0183675 (July 8, 2004, Matasavage, J.) (denying motion to strike common-law recklessness claim where sufficient facts alleged);  Boles v. Laskas, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166054 (October 14, 2003, Matasavage, J.) (denying motion to strike count of common-law recklessness and corresponding claim for punitive damages where sufficient facts alleged);  Cappiello v. Steeves, Superior Court, judicial district of New Haven, Docket No. CV 02 0470424 (June 24, 2004, Harper, J.) (denying motion to strike common-law recklessness count where plaintiff alleged defendant was intoxicated and driving at high rate of speed).

In the present case, an examination of count two of the plaintiff's complaint reveals that the plaintiff has alleged sufficient facts to support a cause of action in common-law recklessness.   As in Welcome v. Ouellette-McGregor, supra, Superior Court, Docket No. CV 01 0811039, § 52-599(c) does not act as a bar to the plaintiff's common-law recklessness claim here because that claim survives the decedent's death.   Accordingly, count two of the plaintiff's complaint along with the second prayer for relief must stand, and the defendant's motion to strike is denied on those grounds.

III.

The defendant seeks to strike count three and the corresponding prayer for relief, claiming that a plaintiff cannot maintain a claim for statutory exemplary damages against a decedent.  General Statutes § 14-295 provides in relevant part:  “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 ․”

In a well reasoned decision by Judge Silbert, the court in Holcomb v. Kovacs, Superior Court, judicial district of New Haven, Docket No. CV 03 0481239 (March 7, 2006, Silbert, J.) (41 Conn. L. Rptr. 12), granted the defendant's motion to strike under similar circumstances, concluding “that the essence of the purpose of § 14-295 is overwhelmingly penal and that under § 52-599(c)(3) a cause of action based upon it does not survive the death of the tortfeasor.”   In Holcomb, the plaintiffs were in a motor vehicle that was struck by a vehicle operated by the defendant's decedent.  Id. The “original complaints alleged both negligence and recklessness, and in connection with the latter, they sought double or treble damages pursuant to General Statutes § 14-295.”   Id. The defendant moved to strike the second count of the complaint as well as the corresponding prayer for relief seeking double or treble damages, contending “that a claim based on General Statutes § 14-295 does not survive the death of the original defendant” pursuant to § 52-599(c)(3).  Id.

The defendant in Holcomb drew “support from our Supreme Court's holding in Tedesco v. Maryland Casualty Co., 127 Conn. 533, 18 A.2d 357 (1941), to the effect that an insurer's vicarious liability is limited to compensatory damages because the predecessor statutes to § 14-295 made clear that with respect to the offending driver, such a recovery of multiple represents a sum, the payment of which is imposed ․ as punishment for a violation of the statute which has the aspects of a wrong to the public rather than to the individual.”  (Internal quotation marks omitted.)  Holcomb v. Kovacs, supra, Superior Court, Docket No. CV 03 0481239.

“General Statutes § 14-295 does not itself define or prescribe the punishment for any criminal offense.   It does, however, incorporate by reference some statutes which do both define and prescribe the punishment for criminal offenses ․ [I]t is apparent that the statutes enumerated within § 14-295 all describe wrongs against the State of Connecticut ․ [and][o]nly secondarily ․ do these statutes purport to address wrongs done to individuals.”  Id. The Holcomb court examined the history of § 14-295 which revealed its eighteenth century roots as punishment of a defendant for an offense committed against the state.  Id. The court noted that “[a] jury must make certain specific factual determinations in order to impose statutory punitive damages under § 14-295” because whether “to award punitive damages is a different question than what compensatory damages ought to be.”  Id. The court also cited to a similar issue that was reviewed by the Supreme Court of Indiana in Crabtree ex re Kemp v. Estate of Crabtree, 837 N.E.2d 135 (Ind.2005) for the proposition that the majority view in states that have considered similar issues is the denial of punitive damages against the estate of a decedent because the court cannot accomplish that purpose against a dead tortfeasor.  Holcomb v. Kovacs, supra, Superior Court, Docket No. CV 03 0481239.

“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 raison d'ete 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.”  Id. “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 purpose of punishing reckless conduct as a wrong done to the state clearly outweighing, on a purely qualitative basis, any possible remedial value to the plaintiff.”  (Internal quotation marks omitted.)  Id.

Judge Silbert granted the defendant's motion to strike the claim for double or treble damages under § 14-295 because of § 52-599c(3), concluding “that the essence of the purpose of § 14-295 is overwhelmingly penal and that under § 52-599(c)(3) a cause of action based upon it does not survive the death of the tortfeasor.”  Id. See also McGovern v. O'Connor, Superior Court, judicial district of New Haven, Docket No. CV 07 5015198 (May 15, 2008, Cosgrove, J.) (45 Conn. L. Rptr. 609) (finding § 14-295 to be penal);  Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV07 5014334 (March 18, 2008, Bellis, J.) (same);  Ortiz v. Peterkin, Superior Court, judicial district of New Britain, Docket No. CV 05 5000507 (May 25, 2007, Pittman, J.) (43 Conn. L. Rptr. 497) (same).   Cf. Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) (41 Conn. L. Rptr. 491) (finding § 14-295 not to be penal).

In the present matter, this court agrees with Judge Silbert's well reasoned opinion and conclusion “that the essence of the purpose of § 14-295 is overwhelmingly penal and that under § 52-599(c)(3) a cause of action based upon it does not survive the death of the tortfeasor.”   Accordingly, count three of the plaintiff's complaint along with the third prayer for relief is stricken, and the motion to strike is granted on those grounds.

IV.

For the above stated reasons, the defendant's motion to strike count two of the complaint and the second prayer for relief is denied.   The defendant's motion to strike count three of the complaint and the third prayer for relief is granted.

Matasavage, J.

FOOTNOTES

FN1. It should be noted, relevant to part B of this memorandum, infra, that the Welcome court did grant the defendants' motion to strike a statutory recklessness claim brought under § 14-295..  FN1. It should be noted, relevant to part B of this memorandum, infra, that the Welcome court did grant the defendants' motion to strike a statutory recklessness claim brought under § 14-295.

Matasavage, Paul, J.