Opinion
No. CV 02-0068929-S
June 18, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE ( #104)
On December 12, 2002, the plaintiffs, Shirley Donovan, Ryan Donovan and John Donovan, filed a revised six-count complaint against the defendant, Geico General Insurance Company (Geico), seeking underinsured motorist benefits for injuries sustained by Shirley and Ryan Donovan in an automobile accident. The complaint arises out of a collision, which occurred on October 14, 1998, in the town of Canterbury, Connecticut, when a vehicle, operated by August J. Heltke, III (driver), allegedly crossed the center line and collided with a vehicle operated by Shirley Donovan. The driver is not a party to the present action.
The plaintiffs in this matter are related. Shirley Donovan is married to John Donovan and Ryan Donovan is their son.
Both Shirley and Ryan Donovan were paid by the driver's insurance company in the full amount for $20,000 under the driver's insurance policy. The plaintiffs are now seeking underinsured motorist benefits from their insurance company because they have already exhausted the liability limitations under the driver's insurance policy.
Count one seeks underinsured motorist benefits on behalf of Shirley Donovan pursuant to General Statutes § 38a-336. In count two, the plaintiffs allege that Shirley Donovan is legally entitled to recover against Geico because the driver acted deliberately and with reckless disregard in violation of, inter alia, General Statutes §§ 14-218a, 14-230 and 14-227a. Count three alleges a cause of action for underinsured motorist benefits, pursuant to General Statutes § 38a-336, on behalf of Ryan Donovan. In count four, the plaintiffs again allege a cause of action for deliberate and reckless disregard, pursuant to §§ 14-218a, 14-230 and 14-227a, on part of the driver on behalf of Ryan Donovan against Geico. Count five alleges a cause of action for loss of consortium on behalf of John Donovan. In count six, the plaintiffs allege a cause of action for deliberate and reckless disregard, pursuant to §§ 14-218a, 14-230 and 14-227a, on part of the driver on the behalf of John Donovan against Geico.
On March 10, 2003, Geico filed a motion to strike counts two, four and six of the plaintiffs' revised complaint and both the second claim and third claim in the prayer for relief. Geico's motion is accompanied by a memorandum of law. On March 25, 2003, the plaintiffs filed a memorandum of law in opposition to Geico's motion to strike.
In the second claim of the prayer for relief, the plaintiffs seek either punitive or exemplary damages and in the third claim of the prayer for relief the plaintiffs seek double or treble damages pursuant to § 14-295.
In the plaintiffs' memorandum, they brief an argument as to why Geico's motion to strike count three of the complaint should not be granted. Geico, however, did not move to strike count three of the revised complaint and, therefore, the court will not address the plaintiffs' argument as to count three of the revised complaint for the purposes of this decision.
DISCUSSION
Geico moves to strike counts two, four and six of the revised complaint on the ground that the plaintiffs fail to state a claim upon which relief can be granted because they improperly plead causes of action for both common-law and statutory recklessness in an underinsurance action. For the same reason, Geico argues that the second claim and third claim in the prayer for relief should be stricken as well. Specifically, Geico argues that a cause of action pursuant to General Statutes § 14-295 cannot be maintained in an action for underinsured motorist benefits. Geico contends that the plaintiffs have not alleged any negligence on its part but yet they seek to recover both punitive and/or exemplary damages as well as double or treble damages in an underinsurance action. It is Geico's contention that the plaintiffs cannot recover these damages in an underinsurance action. Geico cites Bodner v. United Services Automobile Assn., 222 Conn. 480, 610 A.2d 1212 (1992), in support of its argument that common-law punitive damages are not available in an underinsured motorist action.
General Statutes § 14-295 provides: "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 plaintiffs argue, in opposition, that they have pleaded the necessary elements to maintain a cause of action for deliberate and reckless disregard pursuant to § 14-295. The plaintiffs further argue that because they have adequately pleaded a cause of action pursuant to § 14-295, then the claims in the prayer for relief are sufficient. The plaintiffs cite several superior court cases in support of their contention that they have adequately pleaded a cause of action for recklessness.
A Prayer For Relief
"Under Connecticut common law, the terms `exemplary damages' and `punitive damages' are interchangeable labels for damages awarded under certain circumstances to compensate a plaintiff for his expenses of litigation . . . It is well settled, however, that statutory multiple damages awarded pursuant to § 14-295, while serving a similar punitive purpose . . . are separate and distinct from common law punitive damages and are awarded in addition thereto in appropriate cases." (Citations omitted; internal quotation marks omitted.) Caulfield v. Amica Mutual Ins. Co., 31 Conn. App. 781, 786 n. 3, 627 A.2d 466, cert. denied, 227 Conn. 913, 632 A.2d 688 (1993).
In Bodner v. United Services Automobile Assn., 222 Conn. 480, 610 A.2d 1212 (1992), the Supreme Court ruled that common-law punitive damages were not recoverable in an uninsured motorist action based on a public policy exception. "The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance . . . [A]llowing a recovery of punitive damages under uninsured motorist coverage would, in effect, place the insured in a better position than would exist if the tortfeasor had been insured." (Citation omitted; internal quotation marks omitted.) Id., 499. In Caulfield v. Amica Mutual Ins. Co., supra, 31 Conn. App. 788, the Appellate Court concluded that based on the reasoning in Bodner, multiple damages pursuant to § 14-295 are not recoverable in an uninsured motorist action.
Even though Bodner and Caulfield both dealt with uninsured motorist coverage "the statutes and regulations applicable to uninsured motorist coverage also apply to underinsured motorist coverage." Orkney v. Hanover Ins. Co., 248 Conn. 195, 202, 727 A.2d 700 (1999); see also Laudette v. Peerless Ins. Co., Superior Court, judicial district of New London-Norwich at Norwich, Docket No. 118880 (June 30, 2000, Dyer, J.) ( 27 Conn.L.Rptr. 456). Accordingly, under the reasoning of both Bodner and Caulfield, the plaintiffs are barred in their underinsured motorist action from seeking punitive, exemplary or multiple damages pursuant to § 14-295. Therefore, Geico's motion to strike the second claim and third claim in the prayer for relief is granted.
B Counts Two, Four and Six
In Laudette v. Peerless Ins. Co., supra, 27 Conn.L.Rptr. 456, the trial court, Dyer, J., dealt with similar facts to the present case. The plaintiff filed a two-count complaint seeking underinsured motorist benefits from the defendants. In addition, the plaintiff had alleged a cause of action for reckless disregard on part of the driver of the vehicle, who was not a party to the action. The defendants filed a motion to strike the cause of action for reckless disregard and two paragraphs in the plaintiff's prayer for relief seeking punitive damages and multiple damages pursuant to § 14-295. The court, relying on the reasoning in both Bodner and Caulfield, granted the defendants' motion to strike the two paragraphs contained in the plaintiff's prayer for relief that sought both punitive and multiple damages pursuant to § 14-295. The court concluded that because the relief the plaintiff was seeking could not be awarded as a matter of law, then the defendants' motion to strike the plaintiff's cause of action for reckless disregard should be granted as well. Id., 458.
The plaintiffs seek punitive or exemplary damages in their second claim for relief and multiple damages pursuant to § 14-296 in their third claim for relief. The plaintiffs are barred from seeking punitive, exemplary or multiple damages pursuant to § 14-295 in their underinsured motorist benefits action and, therefore, the plaintiffs cannot allege a cause of action for recklessness. See Laudette v. Peerless Ins. Co., supra, 27 Conn.L.Rptr. 456. Accordingly, Geico's motion to strike counts two, four and six of the revised complaint is granted.
Moreover, counts two, four and six of the revised complaint allege that the driver of the vehicle was deliberate and reckless in the operation of his vehicle in violation of §§ 14-218a, 14-230 and 14-227a. In all three counts the plaintiffs allege that they are entitled to recover damages from the driver due to his deliberate and reckless disregard in how he operated his vehicle. Furthermore, the plaintiffs, in each count, refer to the driver as "the defendant" and allege that the driver's reckless disregard was a substantial factor in causing their injuries. In support of each count, the plaintiffs allege reckless conduct on part of the driver and not Geico, however, as previously stated, the driver is not even a party to this action.
"Section 14-295 requires only that a plaintiff plead a violation of one or more of the enumerated statutes named therein and that such violation was a substantial factor m causing the plaintiffs' injuries." Coman v. Mannix, Superior Court, judicial district of Windham at Putnam, Docket No. 065645 (April 11, 2002, Foley, J.) ( 31 Conn.L.Rptr. 680, 681). The plaintiff, however, must plead that the defendant violated these statutes that were substantial factors which resulted in the injuries sustained by the plaintiffs. In the present case, the plaintiffs allege that the driver and not Geico violated §§ 14-218a, 14-230 and 14-227a that were substantial factors resulting in their injuries. Accordingly, Geico's motion to strike counts two, four and six should also be granted because the plaintiffs fail to plead that it was the defendant, Geico, that violated the above-mentioned statutes in support of their causes of action for deliberate and reckless disregard.
ORDER
For the foregoing reasons, Geico's motion to strike counts two, four and six of the revised complaint and the second claim and third claim in the prayer for relief is granted.
Foley, J.