Nicole Maiorino v. Susan Murphy (2010)

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (# 102) (# 103 )

FACTS

Presently before the court are the motions to strike filed in these two consolidated actions.¹  The plaintiff in the first case, Nicole Maiorino, filed her complaint (Maiorino complaint) against the defendant, Susan Murphy, administratrix of the estate of Raymond J. Murphy, Jr., on April 28, 2010.²  The plaintiff in the second case, Raymond J. Murphy III, filed his complaint (Murphy complaint) against the defendants, Susan Murphy, as administratrix, and New England Wireless Communications, LLC (New England Wireless), on April 8, 2010.³

In their separate complaints, the plaintiffs allege the following facts.   On or about December 27, 2009 at approximately 10:30 p.m., the plaintiffs were passengers in a motor vehicle being operated by the defendant Susan Murphy's decedent, Raymond J. Murphy, Jr. (decedent), and owned by New England Wireless.   At the time of the incident, the decedent was an agent, servant and/or employee of New England Wireless and was operating the motor vehicle with the permission of New England Wireless within the scope of his employment.   The decedent was driving eastbound on a public highway in Madison, Connecticut, at a high rate of speed when he lost control of the vehicle, causing it to leave the roadway.   The vehicle struck a telephone pole, several street signs, and two trees.   The decedent died on the date of the accident.   As a result of this accident, both plaintiffs suffered serious and painful injuries.

In count three of the Maiorino complaint and count two of the Murphy complaint, the plaintiffs set forth claims of statutory recklessness pursuant to General Statutes § 14-295 against the defendant, Susan Murphy.   In count three of the Murphy complaint, the plaintiff, Raymond J. Murphy III, sets forth a claim of common-law recklessness against Susan Murphy.   Further, in counts five and six of the Murphy complaint, the plaintiff, Raymond J. Murphy III, alleges claims of statutory recklessness and common-law recklessness, respectively, against New England Wireless.

Maiorino seeks to recover, inter alia, double or treble damages pursuant to § 14-295.   Raymond J. Murphy III seeks to recover, inter alia, “punitive and exemplary damages.”

On April 27, 2010, the defendants filed a motion to strike Raymond J. Murphy III's statutory and common-law recklessness causes of action as well as his request for punitive and exemplary damages.   This motion was accompanied by a memorandum of law.   On May 10, 2010, Raymond J. Murphy III filed a memorandum of law in opposition to the motion to strike.   On May 27, 2010, the defendants filed a reply to Raymond J. Murphy III's memorandum of law in opposition.   On that date, Susan Murphy also filed a motion to strike Nicole Maiorino's statutory recklessness cause of action as well as her request for double and treble damages pursuant to § 14-295.   This motion was accompanied by a memorandum of law.   On July 29, 2010, Maiorino filed a memorandum of law in opposition to the motion to strike.   On August 5, 2010, Susan Murphy filed a reply to Maiorino's memorandum of law in opposition.   Both motions were heard at short calendar on September 20, 2010.

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, 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).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Id.

As an initial matter, it is noted that although the defendants in the Murphy action move to strike counts two, three, five and six of the Murphy complaint as well as its claim for punitive and exemplary damages, Raymond J. Murphy III objects to the motion to strike only with regard to the second and third counts and the claim for relief.   He offers no objection to the motion to strike to the extent that it addresses counts five and six, which were both alleged against New England Wireless.   Accordingly, the court grants the motion to strike counts five and six of the Murphy complaint.

The remaining counts at issue are all brought solely against Susan Murphy.   The arguments in favor of the motions to strike those counts all relate to General Statutes § 52-599, which governs whether a cause of action against a decedent survives and may be continued against the administrator of an estate.  Section 52-599(a) provides in relevant part:  “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.”  Section 52-599(c) provides, however:  “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 ․ depends upon the continued existence of the persons who are ․ defendants, or (3) to any civil action upon a penal statute.”   The motions to strike with regard to the statutory recklessness and common-law recklessness causes of action will be discussed in turn.

I

STATUTORY RECKLESSNESS

Susan Murphy moves to strike count three of the Maiorino complaint and count two of the Murphy complaint on the ground that a plaintiff cannot maintain a claim of statutory recklessness pursuant to § 14-295 against a decedent.   She argues that, although pursuant to General Statutes § 52-599, a cause of action is generally not destroyed by the death of the tortfeasor, the plaintiffs' claims in the present actions fall within § 52-599(c)(3), which provides an exception to that general rule where an action is based upon a penal statute.   The plaintiffs respond by arguing that § 14-295 is not a penal statute because it does not contain any provision for a punishment that may be imposed by the state and because the purpose of the statute in part is to deter unsafe driving.

Section 14-295(a) 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 [certain statutory provisions relating to traffic violations], and that such violation was a substantial factor in causing such injury, death or damage to property ․”

The plaintiffs' statutory recklessness claims are barred by the exception set forth in § 52-599(c)(3) because § 14-295 is a penal statute.  “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.”  (Internal quotation marks omitted.)  State v. Pompei, 52 Conn.App. 303, 307, 726 A.2d 644 (1999).  “The test whether a law is penal ․ is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.”  (Internal quotation marks omitted.)   Carpentino v. Gaffey, Superior Court, judicial district of Middlesex, Docket No. CV 07 5003014 (July 30, 2008, Jones, J.) (46 Conn. L. Rptr. 79).

Section 14-295 imposes punishment for offenses against the state.  “[The statute] 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 ․ which carry penalties of fines and/or imprisonment.”   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).   Further, “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 ․ Only secondarily, through the application of § 14-295, do these statutes purport to address wrongs done to individuals.”  (Emphasis added.)  Id. In the present case, the counts brought pursuant to § 14-295 expressly reference four criminal statutes:  (1) § 14-218a (traveling unreasonably fast given the circumstances);  (2) § 14-227a (driving under the influence);  (3) § 14-219 (excessive speed);  and (4) § 14-222 (reckless driving).   Section § 14-295 incorporates by reference these four statutes, which themselves prescribe punishment for criminal offenses against the state.

The Supreme Court has held that imposing treble damages pursuant to the predecessor statute of § 14-295 (formerly § 1642) is punitive, not merely compensatory, because it gives the plaintiff an additional award “not for damages because of bodily injury, but as a reward for securing the punishment of one who has committed a wrong of a public nature.”  Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537-38, 18 A.2d 357 (1941).   A more recent case held that imposing multiple damages under § 14-295 itself amounts to a penalty.  Jack v. Scanlon, 4 Conn.App. 451, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985).   There, the court held that “the imposition of the penalty of double or treble damages should be reserved for cases which involve offenses more serious than simple negligence.   Such a penalty should be imposed only where the violation of the rules of the road has been deliberate or at least under conditions which indicate that the defendant was conducting himself with reckless disregard of the rights of others.”   (Internal quotation marks omitted.)  Id., 455.   Further, “[e]ven if § 14-295 could thus be viewed as a magnanimous way for the state to exact punishment for the tortfeasor's harm to society, by passing the proceeds on to the plaintiff, its primary purpose must still be seen as ‘penal.’  “ Holcomb v. Kovacs, supra, Superior Court, Docket No. CV 03 0481239.   Thus, double and treble damages under § 14-295 are punitive in nature.⁴

Many Superior Court judges have specifically addressed whether § 52-599(c)(3) bars a plaintiff from asserting a § 14-295 cause of action after the tortfeasor's death.   For example, Holcomb v. Kovacs, supra, Superior Court, Docket No. CV 03 0481239, is strikingly similar to the present case.   There, the plaintiff, injured in a car collision by a tortfeasor who later died, brought a § 14-295 claim against the tortfeasor's estate and a prayer for relief requesting multiple damages.   The estate argued that § 14-295 was a penal statute and that § 52-599(c)(3) barred the plaintiff from asserting a statutory recklessness cause of action.  Id. The Holcomb court wrote:  “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'etre 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 ․ 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.”  Id. The court granted the defendant's motion to strike, holding 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.

Similar to Holcomb, the plaintiffs in the present case were injured in a car accident allegedly caused by the recklessness of a tortfeasor who subsequently died.   By authorizing the factfinder to use its discretion to award multiple damages, § 14-295 allows the state to award multiple damages against the tortfeasor's estate for his recklessness, which constitutes an offense against the state.   Allowing such damages punishes the tortfeasor's reckless conduct in a way that goes far beyond providing mere compensation to the plaintiffs for their injuries and losses.   Thus, § 14-295 is a penal statute, and the plaintiffs' statutory recklessness claims are barred by the exception set forth in § 52-599(c)(3).

For the reasons set forth above, the court grants the defendant's motions to strike as to count three of the Maiorino complaint and count two of the Murphy complaint.

II

COMMON-LAW RECKLESSNESS

Susan Murphy moves to strike count three of the Murphy complaint on the ground that a plaintiff cannot maintain a claim for common-law punitive damages against a decedent.   She argues that the common-law recklessness cause of action set forth in count three of the Murphy complaint should be stricken under § 52-599(c)(2) because it depends on the tortfeasor's continued existence.   Raymond J. Murphy III argues in response that the cause of action does not depend on the decedent's continued existence because the state of mind of recklessness can be inferred from the alleged tortfeasor's conduct and need not be proven through his testimony.

In Welcome v. Quellette-MeGregor, Superior Court, judicial district of Hartford, Docket No. CV 01 0811039 (November 21, 2002, Hennessey, J.) (33 Conn. L. Rptr. 454), on similar facts, the defendant argued that the plaintiff's common-law recklessness claim did not survive the tortfeasor's death under § 52-599(c)(2).   The defendant claimed that the tortfeasor's continued existence was “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 [the decedent] had the state of mind required to establish a claim of recklessness.”  Id. The court rejected this argument, holding that the plaintiff's claim should not be stricken because the defendant would not be unduly prejudiced by the tortfeasor's death.  Id. According to the court, even though the tortfeasor had died, “[t]he state of mind of recklessness may ․ be inferred from conduct.”  (Internal quotation marks omitted.)  Id. The court also emphasized that the plaintiff has the burden to show the tortfeasor's state of mind at the time of the accident, and the defendant would have the ability to refute the plaintiff's evidence at trial.   Id.

Similarly, in the present case, the plaintiff's common-law recklessness claim can proceed despite the tortfeasor's death, as the prosecution of the action does not depend on the tortfeasor's continued existence.   Since the plaintiff bears the burden of proof and the defendant has the ability to rebut the plaintiff's proof regarding the tortfeasor's state of mind, the tortfeasor need not be alive for this cause of action to go forward.   Therefore, the exception in § 52-599(c)(2) has not been met and the plaintiff's common-law recklessness cause of action is legally sufficient.   Accordingly, the court denies the motion to strike count three of the Murphy complaint.

III

REQUESTS FOR PUNITIVE AND MULTIPLE DAMAGES

Finally, the defendant moves to strike the plaintiffs' requests for punitive and multiple damages.   Because the claim of statutory recklessness pursuant to § 14-295 set forth in count three of the Maiorino complaint is stricken, likewise, Maiorino's request for double or treble damages pursuant to § 14-295 is also stricken.   Because the claim of common-law recklessness set forth in count three of the Murphy complaint survives the motion to strike, likewise, the defendant's motion to strike Raymond J. Murphy III's claim for punitive and exemplary damages is denied.

CONCLUSION

For the foregoing reasons, in Maiorino v. Murphy, Docket No. CV 10 6010586, the court grants the motion to strike as to count three of Nicole Maiorino's complaint as well as her request for double or treble damages pursuant to § 14-295.   In addition, in Murphy v. Murphy, Docket No. CV 10 6011272, the court grants the motion to strike counts two, five and six of Raymond J. Murphy III's complaint.   Further, in Murphy v. Murphy, the motion to strike count three and plaintiff's request for punitive and exemplary damages is denied.

Wilson, J.

FOOTNOTES

FN1. The defendants filed a motion to consolidate both actions, which was granted on June 15, 2010..  FN1. The defendants filed a motion to consolidate both actions, which was granted on June 15, 2010.

FN2. England Wireless Communications, LLC, is also named as a defendant in the Maiorino action.   The motion to strike in that case, however, is brought by the defendant Susan Murphy only..  FN2. England Wireless Communications, LLC, is also named as a defendant in the Maiorino action.   The motion to strike in that case, however, is brought by the defendant Susan Murphy only.

FN3. The plaintiff in the Murphy action also names Dalton's, Inc., Dalton J. Velez and Evergreen Farms, Inc., as defendants in his complaint.   These additional defendants are not parties to the motion to strike presently before the court..  FN3. The plaintiff in the Murphy action also names Dalton's, Inc., Dalton J. Velez and Evergreen Farms, Inc., as defendants in his complaint.   These additional defendants are not parties to the motion to strike presently before the court.

FN4. Both plaintiffs rely on Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) (41 Conn. L. Rptr. 491) for the proposition that § 14-295 is not a penal statute because it does not include a provision for punishment to be imposed by the state and because its purpose is both to punish and to promote safe driving.   The plaintiffs' reliance is misplaced.   Although § 14-295 deters others from conduct prohibited by the statute, as discussed above, the statute is simultaneously penal in nature, and the judges of the Superior Court have on many occasions deemed the prohibited conduct a public wrong.   Further, Salvatore appears to be the only case holding that § 14-295 is not penal in nature..  FN4. Both plaintiffs rely on Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) (41 Conn. L. Rptr. 491) for the proposition that § 14-295 is not a penal statute because it does not include a provision for punishment to be imposed by the state and because its purpose is both to punish and to promote safe driving.   The plaintiffs' reliance is misplaced.   Although § 14-295 deters others from conduct prohibited by the statute, as discussed above, the statute is simultaneously penal in nature, and the judges of the Superior Court have on many occasions deemed the prohibited conduct a public wrong.   Further, Salvatore appears to be the only case holding that § 14-295 is not penal in nature.

Wilson, Robin L., J.