Colleen Stoddard v. Zeno Luciw et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 101)

FACTS

On April 30, 2010, the plaintiff,¹ Colleen Stoddard, filed a three-count complaint against the defendants, Zeno Luciw and Maria Luciw.   In her complaint, the plaintiff alleges the following facts.   On or about May 5, 2009, the plaintiff was driving a school bus north on Deforest Drive in North Branford, Connecticut.   Zeno Luciw, who was driving on the same road and in the same direction, “suddenly stopped and reversed his vehicle directly into the front of the [p]laintiff's vehicle.”

In count one of her complaint, the plaintiff alleges that her injuries were caused by the negligence and carelessness of Zeno Luciw.   In count two of the complaint, she alleges that Maria Luciw is a co-owner of the vehicle, that Zeno Luciw was using it with her authorization or as her agent and that Maria Luciw is liable for the negligence of Zeno Luciw.   She further alleges in count three that “the collision was due to the recklessness of the [d]efendant, Zeno Luciw in that he:  [o]perated his vehicle in a reckless manner without having due regard for the traffic and use of the highway when he reversed his vehicle against the flow of traffic in violation of ․ § 14-222.”   Moreover, count three contains an allegation that this violation was “a substantial factor in causing the injuries to the plaintiff.”

On June 9, 2010, the defendants filed a motion to strike the third count of the complaint and “that portion of the prayer for relief requesting double or treble damages” on the ground that the plaintiff has failed to allege facts sufficient to support a cause of action under § 14-295.   The defendants have submitted no memorandum of law as required by Practice Book §§ 10-42(a) and 11-10(3).   The plaintiff filed an objection to the motion to strike and a supporting memorandum of law on August 3, 2010.   Oral argument on the motion was heard at short calendar on August 9, 2010.²

DISCUSSION

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  (Citation omitted.)  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Nevertheless, “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, supra, 262 Conn. 498.

On the face of the motion, the defendants argue that “the [p]laintiff has [in count three of the complaint] relied upon the same factual pattern as in the [f]irst [c]ount, sounding in simple negligence and, therefore, has failed to allege sufficient facts to support a claim of recklessness.” ³  The plaintiff, in opposition to the motion, argues that she has made a legally sufficient claim under § 14-295 by alleging the recklessness of the defendant, namely, the violation of § 14-222 and the requisite causal relationship between that violation and her injuries.

Section 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 ․ 14-222 ․ and that such violation was a substantial factor in causing such injury, death or damage to property ․”

“Neither the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14-295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness ․ The split of authority arises from the different constructions the courts have placed on the term specifically pleaded.”  (Internal quotation marks omitted.)   Grieco v. Morales, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007072 (June 30, 2010, Roche, J.).

This court has set forth the majority and minority positions on this issue before.   See Braumann v. Clavette, Superior Court, judicial district of New Haven, Docket No. CV 09 5027558 (April 27, 2010, Wilson, J.).  “The majority view distinguishes between pleading common law recklessness and statutory recklessness, thus holding that a plaintiff need only plead the required language in § 14-295 ․ The majority view is based both on an analysis of the legislative history as well as a review of the statutory language of § 14-295 itself.   These cases conclude that as long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14-295.”  (Citations omitted;  internal quotation marks omitted.)  Id.

“The minority view holds that a plaintiff must not only plead a statutory [violation] as set forth in § 14-295, but also facts that would support a claim of reckless conduct at common law․  Relying on the usual rules of pleading, these courts generally reason that a plaintiff who is alleging recklessness must allege specific facts that [inform] both the court and the defendant what conduct is relied upon ․ To permit otherwise, these courts reason, would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages ․ effectively dissolv[ing] any distinction between [the two] claims.”  (Citations omitted;  internal quotation marks omitted.)  Id.

This court has consistently sided with the majority.   See, e.g., id.;   Maysonet v. Cogdell, Superior Court, judicial district of New Haven, Docket No. CV 08 5024267 (June 8, 2009, Wilson, J.);   Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV 09 5031138 (December 7, 2009, Wilson, J.) (finding “the majority view ․ persuasive” because “[t]he language of § 14-295 is unambiguous”).   Accordingly, the plaintiff need only allege that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a “substantial factor in causing” the plaintiff's injuries.

In paragraph three of count three of the complaint, the plaintiff alleges that “the collision was due to the recklessness of the [d]efendant, Zeno Luciw in that he:  [o]perated his vehicle in a reckless manner without having due regard for the traffic and use of the highway when he reversed his vehicle against the flow of traffic in violation of ․ § 14-222.”   Moreover, paragraph four of count three contains an allegation that this violation was “a substantial factor in causing the injuries to the plaintiff.”   The complaint therefore contains sufficient allegations to state a recklessness claim pursuant to § 14-295 and therefore, the third count of the complaint should not be stricken.

With regard to the motion to strike as to that portion of the prayer for relief requesting double or treble damages, Practice Book § 10-39 “allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   Section 14-295 allows for recovery of double or treble damages.   Therefore, the prayer for relief should not be stricken.

CONCLUSION

Accordingly, the motion to strike count three and “that portion of the prayer for relief requesting double or treble damages” is denied.

Wilson, J.

FOOTNOTES

FN1. On July 13, 2010, First America, also known as Gallagher Basset Services, Inc., filed a motion to intervene as a plaintiff and an intervening complaint.   That motion was granted by Judge Blue on July 26, 2010.   For the purposes of this memorandum, “the plaintiff” will be used only to refer to Colleen Stoddard..  FN1. On July 13, 2010, First America, also known as Gallagher Basset Services, Inc., filed a motion to intervene as a plaintiff and an intervening complaint.   That motion was granted by Judge Blue on July 26, 2010.   For the purposes of this memorandum, “the plaintiff” will be used only to refer to Colleen Stoddard.

FN2. Counsel for the defendants did not appear to argue the motion at short calendar..  FN2. Counsel for the defendants did not appear to argue the motion at short calendar.

FN3. The defendants did not file a memorandum of law in support of their motion to strike.  Practice Book § 10-42(a) provides:  “Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.”   As a result, the defendants have failed to comply with the requirements set forth in the practice book and the motion could be denied on procedural grounds.   State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess.1981) (where defendant did not brief grounds relied upon in his motion to strike, court “treat[ed] those issues as abandoned”)..  FN3. The defendants did not file a memorandum of law in support of their motion to strike.  Practice Book § 10-42(a) provides:  “Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.”   As a result, the defendants have failed to comply with the requirements set forth in the practice book and the motion could be denied on procedural grounds.   State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess.1981) (where defendant did not brief grounds relied upon in his motion to strike, court “treat[ed] those issues as abandoned”).

Wilson, Robin L., J.