Opinion
FSTCV156024275S
06-01-2017
Rebeka Estrada v. Yverline Pierre-Louis et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SPECIAL FINDING [#122]
Irene P. Jacobs, J.
The defendant City of Norwalk makes this motion for a special finding pursuant to Gen. Stat. § 52-226a, alleging that this action was brought without good faith and without merit. As more fully set forth below, the court declines to make the special finding that the action was without merit and not brought or asserted in good faith.
BACKGROUND
The underlying action was commenced on January 5, 2015 by the plaintiff, who was a passenger in a motor vehicle owned and/or operated by Yverline and Gabrielle Pierre-Louis when the vehicle was involved in a motor vehicle collision. The original complaint was brought against Yverline and Gabrielle Pierre-Louis. The court granted the plaintiff's motion to cite in the defendant Norwalk Board of Education as an additional party defendant on December 21, 2015 [#106.01]. The plaintiff withdrew all claims as against Yverline and Gabrielle Pierre-Louis on March 17, 2016 [#109].
The claims against the defendant Norwalk Board of Education comprised Count Three of the January 4, 2016 Amended Complaint [#108]. The plaintiff alleged that the negligence and/or carelessness of the defendant Norwalk Board of Education caused the collision and the injuries she sustained as a result of the collision. The defendant's motion to strike Count Three of the Amended Complaint [#111] was granted by the court on August 11, 2016 [#113.01]. Judgment for the defendants [#121] was entered on September 23, 2016.
On September 30, 2016, the defendant Norwalk Board of Education filed the present motion [#122] for an order of special finding that the lawsuit was without merit and was not brought or asserted in good faith, pursuant to Gen. Stat. § 52-226a. On October 7, 2016, the plaintiff filed an objection [#123] to the motion for order of special finding. On October 28, 2016, the defendant filed a memorandum of law [#124] in support of its motion. On November 7, 2016, the plaintiff filed a memorandum of law [#125] in opposition to the motion. Supplemental memoranda of law were filed by the defendant [#126] and by the plaintiff [#127]. Rebuttal briefs were filed by the defendant [#129] and by the plaintiff [#130]. The motion was heard at short calendar on February 6, 2017.
DISCUSSION
Gen. Stat. § 52-226a provides, in pertinent part, " In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, or in any civil action tried to the court, . . . the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. Any such finding shall be admissible in any subsequent action brought to section § 52-568 [Damages for groundless or vexatious suit or defense]."
A special finding under Gen. Stat. § 52-226a can be made only when the court finds " clear evidence" of both lack of merit and lack of good faith. If the court finds the claim to be colorable, the motive in asserting it is irrelevant. Conversely, even if the claim lacks merit, the finding should not be made if the claim was made in good faith. Peluso v. Vanech, Superior Court, J.D. of Stamford, Docket No. CV-116010748, (4/26/16, Lee, J.).
In Beverly v. State of Connecticut, 44 Conn.App. 641, 648-49, 691 A.2d 1093 (1997), the Appellate court stated, " We have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes."
In Fattibene v. Kealey, 18 Conn.App. 344, 361, 558 A.2d 677 (1989), the Appellate Court stated, " Whether a claim is colorable, for purposes of the bad faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. To determine whether the bad faith exception applies, the Court must assess whether there has been substantive bad faith as exhibited, for example, by a party's use of oppressive tactics or its willful violation of court orders; the appropriate focus for the court is the conduct of the party in instigating or maintaining the litigation . . ."
In Count Three of her Amended Complaint, the plaintiff alleges the following facts. The defendant allowed its students, including the plaintiff and Gabrielle Megan Pierre-Louis, the driver of the vehicle in which the plaintiff was a passenger, to plan and implement a scavenger hunt as a " Senior Day" activity. The defendant knew or should have known that the students' plans included drinking and driving. The defendant implicitly condoned and/or did not prevent and/or did not penalize the students for planning and implementing dangerous and/or reckless behavior on school grounds and for skipping school on Senior Day. The students became intoxicated on school grounds. The motor vehicle collision occurred on a Saturday.
Count Three of the Amended Complaint was stricken from the record on the ground that the Board of Education was immune from governmental liability pursuant to Genera Statutes § 52-557n(a)(2)(B) and the plaintiff's claim did not fall within any of the exceptions set forth in the statute. In granting the defendant's motion to strike, the court did not find that the plaintiff's claims were without merit or had been brought in bad faith.
The defendant asserts that a special finding is warranted because the Amended Complaint contains factual errors, such as the name of the school and the location of the motor vehicle collision. The defendant asserts that a special finding is warranted because the collision did not occur on school grounds, on a school day, or as part of a school-sanctioned function. The defendant requests that this court consider another plaintiff's withdrawal of her action arising out of the same motor vehicle collision as supportive of its position that the plaintiff's continuation of this action was in bad faith. The defendant asserts that plaintiff's continuation of her action as against the defendant indicate an " implied bad faith." However, the defendant has not demonstrated to this court that the claims are entirely without color and were taken for reasons of harassment or delay or for other improper purposes. Nor has the defendant demonstrated to this court that plaintiff's counsel used oppressive tactics or willfully violated any court orders. The court does not find clear evidence of both lack of merit and lack of good faith.
CONCLUSION
For the foregoing reasons, the court denies the defendant's motion for an order of special finding of lack of merit and bad faith under Gen. Stat. § 52-226a.