Opinion
No. FST CV 08 5009131 S
October 30, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (108.00)
I. FACTS
On October 30, 2008, the plaintiff, Dominic Genovese, served a two-count complaint on the defendant, Kathryn McCabe, as the executrix of the estate of Barry McCabe. The complaint alleges the following facts. On November 19, 2006, the plaintiff "was the operator of a motor vehicle proceeding in a generally westerly direction on Glenville Road . . . At said time and place Barry C. McCabe, was the operator and owner of a motor vehicle who was turning around in a driveway . . . [T]he McCabe motor vehicle, while exiting the private driveway, struck the Plaintiff's motor vehicle" causing the plaintiff severe and permanent injuries.
The first and second counts of the complaint sound in negligence and recklessness, respectively. In addition, the prayer for relief attached to the complaint seeks monetary damages, double and/or treble damages pursuant to General Statutes § 14-295, common-law punitive damages, and any "other relief in law or equity which may appertain."
On May 8, 2009, the defendant moved to strike the plaintiff's second count on the grounds that § 14-295 "is a penal statute and [therefore] in accordance with [General Statutes] § 52-599, the plaintiff's claim for double and/or treble damages does not survive the death of the defendant," and furthermore, the "plaintiff has failed to properly allege sufficient facts to support any claim of recklessness against the defendant." The defendant filed a memorandum of law in support of its motion to strike. On June 12, 2009, the plaintiff filed a memorandum in opposition. Because of the nature of the complaint itself and the focus of the parties' arguments, the court will treat the second count as brought pursuant to General Statutes § 14-295.
II. Scope of Review
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . . [If] facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
III. Discussion
General Statutes § 52-599 generally allows civil causes of action to survive against the estate of a deceased person. One exception to this rule, however, is a civil action based on a penal statute. General Statutes § 52-599(c)(3). The issue before the court is whether General Statutes § 14-295, allowing for double or treble damages in cases where injuries or property damage arise from a reckless violation of certain traffic laws, is a penal statute,
Neither party has identified any relevant appellate authority in Connecticut, and this court is not aware of any. There are several Superior Court cases on the subject, the majority of which hold that Section 14-295 is a penal statute. See e.g., Holcomb v. Kovacs, Superior Court, judicial district of New Haven, CV 03 0481239 (March 7, 2006, Silbert, J.) (41 Conn. L. Rpt. 12); Welton v. Ferrara, Superior Court, judicial district of New Haven, CV 07 5014334 (March 18, 2008, Bellis, J.) (45 Conn. L. Rptr. 211); McGovern v. O'Connor, Superior Court, judicial district of New Haven, Docket No. 5015198 (May 15, 2008, Cosgrove, J.) [45 Conn. L. Rptr. 609], and Carpentino v. Gaffy, Superior Court, judicial district of Middlesex, CV 07 5003014 (July 30, 2008, Jones, J.) (46 Conn. L. Rptr. 79) Cf. Salvatore v. Rabis, Superior Court, judicial district of Waterbury, CV 05 4007155 (June 9, 2006, Gallagher J.) (41 Conn. L. Rptr. 491) (holding Section 14-295 not to be a penal statute).
The court has read all of the above cases. The decisions are uniformly well written and reasoned. After due deliberation, the court finds the cases holding Section 14-295 to be a penal statute more persuasive, and holds that the second count in this action is barred by the provisions of Section 52-599(c).
Because of the above determination, it is not necessary to reach the issue of whether the second count adequately alleges a cause of action for recklessness.
IV. Conclusion
The motion to strike is granted, and the second count is stricken.
SO ORDERED.