Opinion
No. CV 07 5015198
May 15, 2008
MEMORANDUM OF DECISION RE Motion to Strike #103
The question presented by this motion to strike is whether a claim for double or treble damages brought against the estate of a tortfeasor pursuant to General Statute § 14-295 is legally sufficient or whether it should be stricken because the claim fails to survive the tortfeasor's death pursuant to General Statute § 52-599(c)(3). For the reasons stated below, the court concludes that § 14-295 is penal in nature and that the cause of action brought by the plaintiff under that statute is, therefore, foreclosed by the exception to the survival statute encapsulated in § 52-599(c)(3). Accordingly, the defendant's motion to strike as legally insufficient count two of the plaintiff's complaint is granted.
FACTS
The plaintiff, Cheryl McGovern, filed a three-count complaint on October 30, 2007, against the defendant, Diane O'Connor, as the Executrix for the estate of Marilyn Mirakain, alleging that the decedent had committed various tortious acts that caused a motor vehicle accident in which the plaintiff was seriously injured. Specifically, the plaintiff asserts that on March 12, 2007, Marilyn Mirakian recklessly operated a motor vehicle, causing it to cross the double yellow center line and strike the plaintiff's car head-on. For the injuries sustained by the plaintiff as a result of this incident, she seeks double or treble damages pursuant to General Statute § 14-295.
General Statute § 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 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, CT Page 8235 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
On January 17, 2008, the defendant filed a motion to strike, which was supported by a memorandum of law, arguing that the plaintiff's prayer for double or treble damages under § 14-295 was legally insufficient because it did not survive the death of the tortfeasor, The gravamen of this argument is that, because § 14-295 is penal in nature, it falls within the statutory exception to the survival statute cabined in General Statute § 52-599(c)(3) ("cause or right of action shall not be lost or destroyed by the death of any person . . . [Except] to any civil action upon a penal statute"). Although she acknowledges a split of authority on this issue, the defendant avers that the punitive nature of the statute confirms that § 14-295 is penal. In response, the plaintiff filed an objection and supporting memorandum of law on February 4, 2008, agreeing that the dispositive issue in this motion to strike was whether § 14-295 is penal, though arguing that it is remedial in nature and not penal.
General Statute § 52-599 provides in relevant part: "(a) 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 . . . (c) 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 or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute."
DISCUSSION
Before addressing the merits of this motion, the court will review the applicable standard of review. "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Finally, "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).
Turning to the question presented by this motion, whether a claim for double or treble damages brought against the estate of a tortfeasor pursuant to General Statute § 14-295 is foreclosed by the exception to the survival statute encapsulated in § 52-599(c)(3), the court begins by addressing whether § 14-295 is penal in nature. This issue has not been addressed by our appellate courts, and that there is a split among the trial courts as to whether § 14-295 is penal. Compare Holcomb v. Kovacs, Superior Court, judicial district of New Haven, Docket No. CV 03 0481239 (March 7, 2006, Silbert, J.) (§ 14-295 is penal) [41 Conn. L. Rptr. 12], Ortiz v. Peterkin, Superior Court, judicial district of New Britain, Docket No. CV 05 5000507 (May 25, 2007, Pittman, J.) (same) [43 Conn. L. Rptr. 497], and Welton v. Ferrata, Superior Court, judicial district of New Haven, Docket No. CV 07 5014334 (March 18, 2008, Bellis, J.) (same), with Salvatore v. Rabis, Superior Court, judicial district of Waterbury, Docket No. CV 05 4007155 (June 9, 2006, Gallagher, J.) (§ 14-295 is not penal) [41 Conn. L. Rptr. 491]. Accordingly, because there is not clear precedent delineating the statutory species of § 14-295, the court employs the test adopted by our Supreme Court in State v. Kelly, CT Page 8231 256 Conn. 23, 92-94, 770 A.2d 908 (2001), to determine whether it is criminal or civil.
Under the first part of this test, the court inquires "whether [the legislature], in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." (Internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 92. To the extent the legislature has indicated an intention to establish a civil penalty, the court reaches the second part, inquiring "whether the statutory scheme was so punitive either in purpose or effect as to negate that intention." (Internal quotation marks omitted.) Id. Thus, this part of the test examines whether the statute is punitive in fact, and is usefully informed by considering the following seven guideposts: "[W]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned." (Citation omitted; internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 92-93, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L. Ed.2d 644 (1963); accord State v. Alexander, 269 Conn. 107, 114, 847 A.2d 970 (2004).
With respect to the first prong of the test, whether the legislature indicated expressly or impliedly its intention that § 14-295 be civil or criminal, the text of the statute and its legislative history militate in favor of finding the statute to be penal. Notwithstanding its textual nod to "civil action[s]," the text of § 14-295 itself explicitly references nine separate criminal statutes that regulate motor vehicle and highway use, three of which enumerate penalties that include imprisonment. See General Statutes § 14-295; § 14-218a (regulating speed limits); § 14-219 (providing penalties for speeding); § 14-222 (providing imprisonment as penalty for reckless driving); § 14-227a (providing imprisonment as penalty for drunk driving); § 14-230 (regulating driving lane usage); § 14-234 (regulating passing zones); § 14-237 (regulating divided highway usage); § 14-239 (regulating one-way streets); and § 14-240a (providing imprisonment for failing to drive reasonable distance apart from other vehicles). In view of its relationship to these enumerated regulatory and criminal statutes, it is properly inferred the legislature intended § 14-295 to serve as an additional punitive measure to further deter violation of these regulations.
Where the text of the statute is not plain and unambiguous, rendering it open to more than one reasonable interpretation, extratextual evidence as to the statute's meaning may be considered by the court. See Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650, 931 A.2d 142 (2007) ("General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered"). In this case, the text of § 14-295 is barren of any indication as to the legislature's intended label, and the split of authority as to whether it is civil or criminal confirms that it is subject to more than one interpretation. Accordingly, the court consults extratextual evidence of the meaning of § 14-295.
Further buttressing this inference, the antecedent to § 14-295, a 1797 statute entitled "An Act to Regulate Stage and Other Carriage Drivers, was considered penal, and was enacted by the legislature to "protect the person and property of the traveler upon the highway from injury resulting from the unlawful use of it by another." (Internal quotation marks omitted.) Hopwood v. Sciarretta, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 01 0075934 (July 11, 2002, Lager, J.) [32 Conn. L. Rptr. 474], quoting Levick v. Norton, 51 Conn. 461, 469-70 (1884); see also Hotchkiss v. Hoy, 41 Conn. 568, 577 (1874) ("the statute is a penal one"). This is because "triple damages are given the injured party, not as compensation for the injury done him, but as a punishment of the defendant for an offense committed against the State." Stevens v. Kelley, 66 Conn. 570, 575 (1895). Indeed, while our Supreme Court has acknowledged that the predecessor to § 14-295 contained a remedial component to it; see Dubreuil v. Waterman, 84 Conn. 47, 51, 78 A. 721 (1911); the Court nevertheless maintains that the statute was substantially penal in nature and is, therefore, properly viewed as a qui tam action. See Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537, 18 A.2d 357 (1941) (treble damages are "in no way compensatory . . . the recovery is of a qui tam nature, that is, one where an individual is permitted to obtain and hold a penalty as a reward for securing the punishment of one who has committed an offense which the legislature deems to be a public wrong"). Accordingly, our Supreme Court's understanding of the antecedent statute to § 14-295 indicates that it was viewed by the legislature as a criminal statute, which suggests that § 14-295 is penal as well.
The phrase "qui tam" is an abbreviation for "qui tam pro domino rege quam pro se imposo sequitur," which means "who brings the action as well for the king as for himself." Bass Anglers Sportsman's Society of America v. U.S. Plywood-Champion Papers, Inc., 324 F.Sup. 302, 305 (S.D.Tex. 1971).
Indeed, qui tam actions have been used by federal and state legislatures throughout American history as a means of augmenting law enforcement by "establish[ing] a dual enforcement scheme whereby both public officials and private citizens are permitted to represent the United States in litigation to enforce statutory mandates." E. Caminker, "The Constitutionality of Qui Tam Actions," 99 Yale L. J. 341, 350 (1989); see also C. Broderick, "Qui Tam Provisions and the Public interest: An Empirical Analysis," 107 Colum. L. Rev. 949, 953 (2007) (noting history of qui tam provision in False Claims Act to combat fraud against the federal government, which has been statutorily strengthened in recent years to provide additional protections for the informer). Consequently, the qui tam nature of ?14-295 further supports a conclusion that the legislature intended it to be a penal statute.
Nevertheless, because § 14-295 is subject to an antonymic and equally arguable interpretation, the court now considers whether it is punitive in fact under the second prong of the Kelly test. The following factors guide the court's inquiry: (1) "Whether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." See State v. Kelly, supra, 256 Conn. 92-93. It is important to note, however, that "no one factor should be considered controlling as they may often point in differing directions." Kennedy v. Mendoza-Martinez, supra, 372 U.S. 169. Instead, "these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." (Citations omitted; internal quotation marks omitted.) Hudson v. United States, 522 U.S. 93, 100, 114 S.Ct. 488, 139 L.Ed.2d 450 (1997).
See Salvatore v. Rabis, supra, Superior Court, Docket No. CV 05 4007155 (noting that penal statutes "denote a punishment, whether corporal or pecuniary, imposed and enforced by the State," and consequently holding that our legislature would not classify as penal a statute that merely conferred a private right of action) (emphasis added; internal quotation marks omitted); accord Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901) ("a statute which gives no more than a right of action to the party injured to recover increased damages, is not a penal statute"). This analysis is further supported by a more detailed understanding of qui tam actions. In a traditional qui tam statute, both public officials and private citizens may litigate on behalf of the government, and the government shares in any resulting recovery. See E. Caminker, supra, 99 Yale L. J. 350-52 (False Claims Act, by way of example, imbues Department of Justice with option to "have primary responsibility for prosecuting the action"). Accordingly, because ?14-295 provides a private cause of action in which the state does not take part in the litigation or share in any resulting recovery, it is conceivable that the legislature did not intend it to be penal.
Applying these factors to § 14-295, the court concludes that it is punitive in fact, and accordingly finds it to be a penal statute. Although double or treble damages do not operate as an affirmative disability or restraint, all other factors support a conclusion that § 14-295 shares the telltale characteristics of a criminal statute. Indeed, treble damages have historically been recognized as punitive in nature. See, e.g., Stevens v. Kelley, supra, 66 Conn. 575 ("triple damages are given the injured party, not as compensation for the injury done him, but as a punishment of the defendant for an offense committed against the State"); Tedesco v. Maryland Casualty Co., supra, 127 Conn. 537 ("the additional award represents a sum the payment of which is imposed upon an offending driver as punishment for a violation of the statute which has the aspects of a wrong to the public rather than to the individual"). Moreover, the utilization of treble damages will promote the traditional aims of punishment — retribution and deterrence. See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562-63, 562 A.2d 1100 (1989) ("the purpose of punitive damages is not merely to deter a particular defendant from future misconduct but to deter others from committing similar wrongs"). Accordingly, because treble damages are traditionally regarded as punitive in nature and they serve to not only punish but to deter future misconduct, both the second and forth criteria of the Kelly test support a finding that § 14-295 is criminal in nature.
Unlike "the infamous punishment of imprisonment," monetary damages do not restrain or disable, as that term is normally understood. (Internal quotation marks omitted.) Hudson v. United States, supra, 522 U.S. 104.
Indeed, the statutory treble damages available in ?14-295 are awarded in addition to common-law punitive damages, further suggesting that it is a penal statute intended to punish, and not a civil statute concerned with offering a just remedy. See Caulfield v. Amica Ins. Co., 31 Conn.App. 781, 786 n. 3, 627 A.2d 466, cert. denied, 227 Conn. 913, 632 A.2d 688 (1993) ("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").
Section 14-295 is also consistent with a penal statute because it is only applicable upon a finding of scienter and it only applies to behavior that is already a crime. Indeed, § 14-295 explicitly requires a finding that the defendant acted "deliberately or with reckless disregard" before treble damages can be awarded, which is a mens rea requirement. General Statute § 14-295; see also General Statute § 53a-3(13) ("person acts `recklessly' with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk"); Hopwood v. Sciarretta, supra, Superior Court, Docket No. CV 01 0075934 (§ 14-295 requires facts alleging requisite mental state). Moreover, the type of reckless behavior that is punished by § 14-295 through the award of double or treble damages is already proscribed by various criminal statutes. As noted above, the text of § 14-295 itself explicitly references nine separate criminal statutes that regulate motor vehicle and highway use, three of which enumerate penalties that include imprisonment. Consequently, the third and fifth guideposts enumerated by the Kelly test further bolster a conclusion that § 14-295 is penal in nature because it requires evidence of a guilty mind and it additionally punishes behavior that is already proscribed by law.
Finally, it is noted that, while § 14-295 also serves the alternative purpose of remedying the injuries of a private party, "double or treble damages are exorbitant in relation to that alternative purpose." State v. Kelly, supra, 256 Conn. 92-93. It is true that our Supreme Court has acknowledged § 14-295 comprehends a remedial component to it, which seeks to make whole an injured party for the injuries sustained by reckless driving. See Dubrenil v. Waterman, 84 Conn. 47, 51, 78 A. 721 (1911). Nevertheless, the doubling or trebling of damages under § 14-295 is excessive to that purpose because "the obligation of the defendant to pay such damages as will compensate the plaintiff for his injuries and losses is first fixed and then the additional award, doubling or trebling that sum, is made." Tedesco v. Maryland Casualty Co., supra, 127 Conn. 537. Thus, the remedial objective has already been achieved before damages arising from § 14-295 are available to the plaintiff. Moreover, the statutory treble damages available in § 14-295 are awarded in addition to common-law punitive damages; see, supra, footnote 8; suggesting that the civil deterrent effect afforded by common-law punitive damages has likewise been achieved before statutory treble damages are calculated. It is because the treble damages available in § 14-295 are assessed after the remedial purpose has already been satisfied by an award common-law compensatory and punitive damages that they are excessive in relation its putative alternate aim.
The United States Supreme Court has noted "that all civil penalties have some deterrent effect." Department of Revenue v. Kurth Ranch, 511 U.S. 767, 777 n. 14, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Thus, while the presence of a deterrent objective does not render all civil punitive monetary damages criminal per se, any argument that ?14-295 is not penal merely because it secures monetary damages for equally familiar civil aims (i.e. deter future recklessness) is acarpous.
The court, therefore, holds that § 14-295 is penal. Although the text and legislative history of the statute fail to illuminate a clear legislative intention to categorize § 14-295 as either civil or criminal, both the case law explicating its predecessor statute and the Kelly guideposts lead to the conclusion that it is penal in fact.
CONCLUSION
Accordingly, the court grants the defendant's motion to strike as legally insufficient count two of the plaintiff's complaint because it is penal in nature, and is, consequently, foreclosed by the exception to the survival statute encapsulated in § 52-599(c)(3).