192 Conn. 280 | Conn. | 1984
Lead Opinion
The principal issue in this case is the scope of our statutes imposing liability upon owner-lessors of motor vehicles for the misconduct of a driver-lessee. The plaintiff, Frank P. Gionfriddo, administrator of the estate of Kim Gionfriddo, brought an action in three counts against the defendants, Michael K. Gilliam, Avis Rent A Car System, Inc. (hereinafter Avis), and Chrysler Leasing Corporation (hereinafter Chrysler). The complaint sought: in the first count, compensatory damages; in the second count, exemplary damages; and in the third count, double or treble damages pursuant to General Statutes § 14-295.
There is no present dispute about the underlying facts found in the trial court’s opinion and the record as a whole. The defendants Avis and Chrysler rented a car to the defendant Gilliam on December 20, 1978. On January 4, 1979, Gilliam drove the rental car, while intoxicated, in a heinous, wilful and reckless manner, so as to strike head-on a car being driven by Kim Marie Gionfriddo, the plaintiff’s decedent. Kim Gionfriddo died almost instantly.
At issue before us is the award of damages on the third count of the plaintiffs complaint, a count that was tried to the court, N. O’Neill, J. The court found that the plaintiff had established the factual and legal predicates for treble damages under General Statutes § 14-295, and assessed additional damages of $706,524 against all the defendants.
The defendants Avis and Chrysler appeal the propriety of holding them liable for treble damages. The plaintiff, in his cross appeal, claims that the awards of exemplary and of punitive damages were improperly calculated. We will take up first the issues on the appeal and then those on the cross appeal.
I
The defendants Avis and Chrysler claim that it was error, for two reasons, to hold them liable for treble damages under the third count of the plaintiffs complaint. They do not challenge the trial court’s finding of a factual predicate for invocation of the treble damages statute, General Statutes § 14-295. They argue, however, that they are not chargeable under § 14-295, as a matter of law, because treble damages are not permitted by either (1) the statute imposing liability upon owner-lessors of motor vehicles, General Statutes
A
In order to determine whether the trial court properly held the defendants Avis and Chrysler liable for treble damages under § 14-154a, we must start with the text of that statute. It provides, in toto, that “[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.”
Although this court has not previously had the occasion to determine specifically whether § 14-154a imposes liability for treble damages, we have repeatedly stated our view of the purpose of the statute. “ ‘[It] cannot be regarded otherwise than as an expression of legislative judgment as to the extent — beyond the limitations of the general principles of respondeat superior and the “family-car doctrine” — to which the owner of a motor vehicle which he entrusts to another should be liable for the acts of the latter.’ Marshall v. Fenton, 107 Conn. 728, 731, 142 A. 403 [1928].” (Emphasis in original.) Fisher v. Hodge, 162 Conn. 363, 369, 294 A.2d 577 (1972). We have consistently construed the statute “as imposing on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental. Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 336, 143 A. 163 [1928]; Connelly v. Deconinck, 113 Conn. 237, 240, 155 A. 231 [1931]; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 542, 107
In light of our consistent construction of § 14-154a, under which the owner-lessor is viewed as the alter ego of the rental car’s operator, it is logical to conclude, as the trial court held, that the damages recoverable under § 14-154a include treble damages, whenever treble damages are properly assessed against the operator. The defendant Gilliam’s liability for treble damages is unchallenged.
To counter this logical construction, the defendants Avis and Chrysler offer a number of arguments for limiting the language of “any damage to any person or property” in § 14-154a to compensatory and exemplary damages. They urge that the statutory language should be read narrowly to exclude treble damages: (1) to conform to our decision in Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537-38, 18 A.2d 357 (1941), that an insurance company’s vicarious liability is limited to compensatory damages; (2) to take account of the principle of Maisenbacker v. Society Concordia, 71 Conn. 369, 379-80, 42 A. 67 (1899), that there is no vicarious liability at common law for punitive or exemplary damages; (3) to harmonize our state law with the Restatement (Second) of Torts § 908 (1979) which limits a principal’s vicarious liability for punitive damages assessed against an agent to specified circumstances, such as authorization or ratification; and (4) to follow decisions in other jurisdictions that interpret similar statutes to deny vicarious responsibility for punitive damages. We find none of these arguments persuasive.
There is, however, a more fundamental distinction between Tedesco and the case currently before us. Tedesco arose in the framework of a contractual dispute, in which general common law principles of public policy guided the interpretation of contractual language. We have the task today of applying the statu
Once it is recognized that the statutory mandate of § 14-154a imposes liability to a significantly greater extent than vicarious liability at common law, the other arguments offered by the defendants Avis and Chrysler concerning § 14-154a fall by the wayside. It is not relevant, in the light of an operative statute, that the common law was reluctant to impose liability upon employers for punitive damages assessed against employees; Maisenbacker v. Society Concordia, 71 Conn. 369, 379, 42 A. 67 (1899); or that the Restatement (Second) of Torts § 908 (1979) urges retention of common law constraints. Nor is it helpful that courts
B
The alternative argument of the defendants Avis and Chrysler is that the terms of our wrongful death statute; General Statutes § 52-555;
This case furnishes our first opportunity to determine whether treble damages imposed under § 14-295 are recoverable under the wrongful death statute, § 52-555.
It is more useful to focus on the interpretative principles that have been developed concerning the wrongful death statute itself. To determine the measure of “just damages,” according to these principles, we must look to the underlying rights of the decedent, Kim Gionfriddo. Under our wrongful death statute, “the statutory right of action belongs, in effect, to the decedent, and to the decedent alone, and damages are recoverable ‘for the death ... as for one of the consequences of the wrong inflicted upon the decedent.’ Kling v. Torello, [87 Conn. 301], 305, [87 A. 987 (1913)] ‘[T]he cause of action . . . [authorized by the statute] is a continuance of that which the decedent could have asserted had [she] lived’ and to which death may be added as an element of damage. Chase v. Fitzgerald, 132 Conn. 461, 467, 45 A.2d 789 [1946]; Floyd v. Fruit Industries, Inc., [144 Conn. 659, 668, 136 A.2d 918 (1957)].” Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966). See Waldron v. Raccio, 166 Conn. 608, 616, 353 A.2d 770 (1974).
It is uncontested, on the present record, that Kim Gionfriddo, had she lived, would have been entitled to
We therefore conclude that the proper interpretation of our wrongful death statute permits recovery, as “just damages,” of treble damages which the decedent might have recovered had she survived. Since the defendants have not challenged that the defendant Gilliam’s conduct warranted the imposition of treble damages, and have not denied that such damages could have been awarded to Kim Gionfriddo herself, their appeal, on this ground, cannot prevail.
There is no error on the defendants’ appeal.
The plaintiff’s cross appeal claims that the trial court made two errors that resulted in mistaken calculation of the damages that he was awarded. In the award of exemplary damages, under the second count, he claims that the trial court should have directed the jury to calculate exemplary damages as one-half of the compensatory damages under the first count. In the award of treble damages, he claims that the trial court should have included exemplary as well as compensatory damages in the amount that it trebled. We agree with neither of these claims.
A
Proper resolution of the exemplary damages claim requires a review of discussions held between the parties, with the assistance of the trial court, in the absence of the jury, on April 21 and 22,1982. At that time, the jury had before it the issue of compensatory damages under count one, the question of liability on that count having previously been determined by summary judgment, and the issue of liability and damages under count two seeking exemplary damages. In order further to limit the scope of the jury’s inquiries on count two (and, in effect, on count one), all the defendants agreed to admit their liability for exemplary damages under count two, subject to the reservation that such damages were not, as a matter of law, recoverable under General Statutes §§ 14-154a and 52-555. The effect of these admissions, with respect to the second count, was that the jury’s inquiry would be limited, in the view of the defendants, to ascertainment of the amount of the plaintiff’s attorney’s fees and his other costs. Repeat
At the trial with respect to exemplary damages, the plaintiff offered unchallenged evidence that his fee agreement was a one-third contingent fee. His expert witness testified that, to give full exemplary damages under the second count, an award of one-half of the damages assessed under the first count would be required. In their cross-examination of this witness, and in their closing argument, the defendants indicated no disagreement with the underlying fee arrangement but urged the jury to decide whether it called for an award of one-third or one-half of the first count. The trial court, despite a request from the plaintiff to charge that a calculation of one-half was required in order to arrive at a one-third fee, left the calculation to the jury. The court instructed the jury that it had only two choices. “You either use 50% of the compensatory damages or 33V3 of the compensatory. It is your option. It is in your considered judgment to decide what the contract was between the parties. What did they agree to? Did they intend to come out with [the expert witness’s] idea of 50% of the compensatory so that the estate gets the full amount of the compensatory; or did they figure that it would be one third of the compensatory.” The plaintiff duly excepted. The jury returned an award on the second count equal to one-third of the amount assessed on the first count. The trial court denied the plaintiff’s
The plaintiff argues that the trial court’s charge was in error for three reasons: the jury had no evidentiary basis for making a choice between the options presented to it; the court had no basis for deciding that the fee arrangement was ambiguous; and the jury had never heard evidence with respect to a claim of ambiguity in the fee arrangement. We find no error.
The plaintiff’s basic claim is the first, that the jury, having not heard the horrendous circumstances surrounding the death of the decedent, were in no position to exercise the discretion normally afforded to it in the award of exemplary damages. All the parties are in agreement that the extent to which exemplary damages are to be awarded ordinarily rests in the discretion of the trier of the facts. Chykirda v. Yanush, 131 Conn. 565, 568, 41 A.2d 449 (1945); Hanna v. Sweeney, 78 Conn. 492, 494, 62 A. 785 (1906). This claim was not properly preserved. It should have been raised by making an evidentiary offer in the trial court and then appealing from the trial court’s refusal to admit the proffered evidence. See Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 466, 378 A.2d 547 (1977).
The remaining claims of error on this issue are equally unpersuasive. Although the plaintiff intimates that calculation of the fee arrangement was the subject of a stipulation between the parties, the record reveals no such stipulation. On the contrary, the plaintiff himself expressly refused to enter into any stipulation concerning count two. To the extent that the early discussions about calculation led the plaintiff mistakenly to assume that the defendants would not contest a 50 percent calculation, the plaintiff learned that his assumption was inaccurate before the completion
B
The plaintiff’s second claim, on his cross appeal, contests the calculation of the treble damages under the third count of the complaint. The trial court trebled only the compensatory damages awarded under the first count and not the exemplary damages awarded under the second count. The plaintiff maintains that the trial court should have trebled the exemplary damages as well, or should have awarded such damages as costs, as § 14-295, in his view, authorizes.
In his challenge to the trial court’s award, the plaintiff has taken insufficient account of the fact that § 14-295 affords him no absolute right to damages, but leaves the question of whether double or treble damages are “just” to “the discretion of the court.” The only issue before us, on this appeal, therefore, is whether the trial court abused its discretion.
We have no grounds, on the present record, to conclude that there has been an abuse of discretion. The
For similar reasons, we find no abuse of discretion in the failure to award exemplary damages as “the costs of such action.” In general, a reference to “costs” does not encompass attorney’s fees. The failure to award attorney’s fees is not, per se, an abuse of discretion in light of the common law principle that, “absent contractual or statutory authorization, there can be no recovery, either as costs or damages, for the expenses of litigation or the expenditures for counsel fees by a party from his opponent.” Bross Line Construction Corporation v. Ryan Crane Service Corporation, 32 Conn. Sup. 181, 182, 345 A.2d 594 (1975); Peterson v. Norwalk, 152 Conn. 77, 80, 203 A.2d 294 (1964). Without other reasons to conclude that the trial court abused its discretion, we find no error in its award of damages under the third count.
There is no error.
In this opinion Speziale, C. J., Parskey and Ment, Js., concurred.
“[General Statutes] Sec. 14-295. double or treble damages. Each person who, by neglecting to conform to any provision of sections 14-230 to 14-242, inclusive, or section 14-245, or 14-247, causes any injury to the person or property of another, shall be liable to the party injured in double or treble damages if, in the discretion of the court in which any action is pending, double or treble damages are just, with the costs of such action.”
The trial court thus trebled the damages awarded by the jury by adding to the jury verdict an amount equal to twice the compensatory jury award.
The legislative roots of both General Statutes §§ 14-154a and 14-295 can be found in a statute enacted in 1797 known as “An Act to Regulate Stage and Other Carriage Drivers.” The statute provided in § 2 for the imposition of treble damages for injuries caused by one in violation of certain rules of the road; and in § 4 made the owner of the vehicle liable if the driver could not pay. The statute before this court in Levick v. Norton, 51 Conn. 461 (1884), was substantially the same as the original act. The statute was retained without substantive change until 1905 when the legislature amended § 4 to limit owners’ liability (1) to “actual” damages; and (2) to situations in which the driver was proved to be the owner’s agent or the owner was proved negligent in his entrustment of the vehicle to the driver. The 1905 act further required the injured person to elect to proceed either against the owner for actual damages or against the driver for treble damages. Public Acts 1905, Ch. 216, § 4. The restrictive 1905 act was then repealed in 1921; Public Acts 1921, Ch. 334, § 26; and replaced in 1925 with a statute providing, in language similar to § 14-154a, that “[a]ny
Levick v. Norton, 51 Conn. 461 (1884), construed a statute assigning special liability to an owner, while General Statutes § 14-154a covers both owners and lessors. We have been able to discern no reason of policy, nor have the defendants offered any, to distinguish between the liability of owners and of lessors.
Although the defendants suggest obliquely that so broad an exercise of statutory power may give rise to constitutional concerns, they have not sufficiently articulated the nature of those concerns to warrant our consideration of this issue.
In Ingle v. Mark, 58 Misc. 2d 895, 896, 296 N.Y.S.2d 664 (1969), a rental agency was held to have no responsibility for the lessee’s wilful or wanton negligence under a statute; New York Veh. & Traf. Law § 388; imposing liability upon an owner for “death or injuries to person or property resulting from negligence in the use or operation of such vehicle.” In Allen v. Anderson, 93 Nev. 204, 208-209, 562 P.2d 487 (1977), the statute that was narrowly construed involved the family car doctrine and not the liability of a commercial lessor of automobiles. In still other jurisdictions, vicarious liability has been limited to compensatory damages by reference to common law principles entirely unaffected by overriding statutes. See, e.g., Waldron v. Kirkland, 281 So. 2d 70, 71 (Fla. App. 1973); Samedan Oil Corporation v. Neeld, 91 N.M. 599, 601-602, 577 P.2d 1245 (1978); Gray v. Allison Division, 52 Ohio App. 2d 348, 354, 370 N.E.2d 747 (1977); Campen v. Stone, 635 P.2d 1121, 1125 (Wyo. 1981).
The defendants themselves recognize that the fact that damages are denominated “punitive” does not automatically exclude them from the ambit of General Statutes § 14-154a, because they concede their statutory liability for exemplary damages. See Collens v. New Canaan Water Co., 155 Conn. 477, 488, 234 A.2d 825 (1967); Lanese v. Carlson, 32 Conn. Sup. 163, 167, 344 A.2d 361 (1975). In Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982), we stated that “punitive damages” and “exemplary damages” are merely alternate labels for the same remedy, a remedy awarded only when the evidence shows reckless, intentional or wanton violation of the rights of others.
The legislature is similarly free to conclude that the risks associated
“[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”
We have treated this issue as arising under the wrongful death statute because that is how the parties and the trial court characterized their claims at trial. Birgel v. Heintz, 163 Conn. 23, 25-26, 301 A.2d 249 (1972). The plaihtiff, in this court, maintains that he intended instead to rely on
Even when our wrongful death statute contained a statutory cap on the amount of damages that were recoverable, that cap was held to constitute an over-all limitation that did not distinguish between the kinds of damages that were claimed. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957).
Although the defendants cite a number of out-of-state cases denying recovery of treble damages in wrongful death actions, many of those cases are distinguishable. The holding in Rosenfeld v. Isaacs, 79 App. Div. 2d 630, 630-32, 433 N.Y.S.2d 623 (1980), denying treble damages has subsequently been reversed by statutory amendment, as the defendants themselves note. In some of the western states, wrongful death statutes that had earlier provided broad authority for recovery of “pecuniary and exemplary” damages, have been subsequently restricted by legislative amendments. See Downs v. Sulphur Springs Valley Electric Cooperative, 80 Ariz. 286, 292, 297 P.2d 339 (1956); Doak v. Superior Court, 257 Cal. App. 2d 825, 836, 65 Cal. Rptr. 193 (1968). In Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228 (Minn. 1982), and Wangen v. Ford Motor Co., 97 Wis. 2d 260, 312-13, 294 N.W.2d 437 (1980), the operative statutes expressly limit damages to pecuniary losses. Because any wrongful
Dissenting Opinion
(dissenting). I disagree with part I of the majority opinion which upholds the award of treble damages under General Statutes § 14-295 against the owner-lessors of the motor vehicle involved in the accident because of the misconduct of the driver-lessee.- The statute must be read to authorize such enhanced lia
To vindicate the justice of such an award in this case the opinion relies upon Levick v. Norton, 51 Conn. 461 (1884), where a judgment for treble damages against an owner of a vehicle whose servant violated a statutory predecessor of § 14-295 was affirmed. The statute before the court at that time
Although I have no quarrel with the justice of assessing treble damages against the active wrongdoer, the defendant Gilliam, as a punishment for his outrageous conduct, I see no good reason to impose such a penalty on the defendant owner-lessors of the car. As the opinion recognizes, punitive damages could not be imposed upon a party at common law merely on the basis of vicarious liability. Maisenbacker v. Society Con-cordia, 71 Conn. 369, 379, 42 A. 67 (1899). “As its agent was acting within the scope of his employment, the law compels the defendant to compensate the plaintiff for the injuries she has sustained from the wrongful acts of the agent, but it does not punish the defendant for the malicious purpose or intent which prompted the agent’s conduct.” Id. Modern authorities still deplore the imposition of punishment in the form of damages upon those who are only vicariously liable. 4 Restatement (Second), Torts §§ 908, 909.
The opinion does not attempt to defend the wisdom of subjecting the lessor to the same penalty which is imposed on the driver for his extreme misconduct, but maintains that the language of General Statutes § 14-154a compels such a result. The statutory provision limits the lessor’s liability to “any damage to any person or property caused by the operation of such
General Statutes of 1875, Title 16, Ch. 7, Part I, § 21, as amended by Ch. 7 of the Public Acts of 1875 provided as follows:
“Every driver of any such vehicle, who shall, by neglecting to conform to the preceding section, drive against another vehicle and injure its owner or any person in it, or the property of any person, or shall negligently drive against and injure any person, or shall drive against any vehicle traveling the same course and injure any person or the horses or other property of any person, shall pay to the party injured treble damages and costs, and shall, if the injury is done designedly forfeit to the State not more than one hundred dollars; and the owner of such vehicle shall, if the driver is unable to do so, pay tjie damages provided in this and the preceding section, to be recovered by writ of scire facias.” (Emphasis added.)
