Opinion
No. CV 07 5010057
November 9, 2007
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
I.
STATEMENT OF THE CASE
This case involves a fatal motor vehicle accident. The plaintiff has applied for a prejudgment remedy in the amount of $3 million. The attached, unsigned, two-count complaint alleges a wrongful death claim pursuant to General Statutes § 52-555 against Benjamin Bielonko, III (Bielonko, III) and a family car doctrine claim against Benjamin J. Bielonko, Jr. (Bielonko, Jr.). The plaintiff seeks to attach sufficient property of the defendants as security for the satisfaction of the judgment the plaintiff may recover, including any interest in the Bielonko Farm located in Suffield, Connecticut. The matter was heard on June 6, 2007, and June 7, 2007. The last brief was filed on September 14, 2007.
General Statutes § 52-555 provides: "(a) 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 of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
"(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a with respect to such death."
"The family car doctrine is a common-law rule providing that, 'when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car . . .' Stickney v. Epstein, 100 Conn. 170, 178-79, 123 A. 1 (1923). As we explained in the seminal case of Wolf v. Sulik, 93 Conn. 431, 106 A. 443 (1919), the family car doctrine is grounded in the principle that 'every man who prefers to manage his affairs through others . . . remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.' Id., 436-37." Cogan v. Manhattan Auto Financial, 276 Conn. 1, 9, 882 A.2d 597 (2005).
General Statutes § 52-182 provides: "Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
II FINDINGS OF FACT
After weighing all the evidence and assessing he credibility of the witnesses, the court makes the following findings of fact.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147 (2003), cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
The plaintiff, John E. Butova, is the father of the decedent, John J. Butova.
He is the administrator of the decedent's estate in Connecticut and Massachusetts. His wife is Karen Butova, the decedent's mother. They have two other children. The family resides at 587 Barry Street, Feeding Hills, Massachusetts. Karen Butova is related to the defendants; she is Benjamin Bielonko, Jr.'s, sister. The plaintiff owns a delivery business.
The decedent was born on September 26, 1984. On October 8, 2005, he was killed in the subject motor vehicle accident. He was 21 years old. He had lived in Massachusetts all his life. After completing high school, the decedent attended an automobile mechanic training program at a local technical school. The plaintiff testified regarding the decedent's work history. The decedent had worked occasionally on the Bielonko Farm for several years. While attending technical school, he worked as a diesel mechanic trainee at Responsive Trucking, making $14 per hour. He also was employed with a tree service in Suffield. At the time of his death, he was working part-time for his father's delivery business and at the Bielonko Farm. He made about $33 per hour making deliveries for his father, working 15 to 20 hours per week. His take-home pay was approximately $400 per week. He had several hobbies including music, car racing and BMX biking. He drove a Chevy Astro van, which was registered in his name.
The owner of the subject motor vehicle, a 1993 Chevy Blazer, is the defendant, Benjamin J. Bielonko, Jr. The family resides on the Bielonko Farm located at 1045 East Street, Suffield, Connecticut, which Bielonko, Jr., has owned since 1978. He runs a dairy, vegetable and tobacco farm.
The driver of the subject motor vehicle was Bielonko, III, the co-defendant. He lived all his life on the Bielonko Farm. After graduating from high school in June 2004, Bielonko, III attended Eastern Connecticut State University (ECSU). He used the Chevy Blazer on a regular basis and for commuting to classes at ECSU. Both defendants had a set of keys for the vehicle. Bielonko, Jr., testified that his son did not have carte blanche with the car but had to tell his parents where he was going. Bielonko, III was told not to drink and drive. At the time of the accident, he was nineteen years old.
Growing up, the decedent spent considerable time at the Bielonko Farm. He was close in age to his cousin, Bielonko, III, and they spent many days together. Although the cousins were seeing each other less frequently, they remained very close. The decedent was also fond of his uncle, Bielonko, Jr. When the cousins went out together, they took turns driving depending on whose car was working or had gas. On occasion, the decedent would spend the night at the Bielonko Farm.
The plaintiff testified that he had advised his son not to spend time at the Bielonko Farm because of concerns regarding the drinking and other activities going on there. The decendent's mother, though, wanted her son to work on the farm.
Butova testified that before the accident he had expressed concerns to Bielonko, Jr., about Bielonko, III's drinking. According to the plaintiff, Bielonko, Jr., acknowledged, before the accident, that he was aware of his son's drinking. Bielonko, Jr., told the plaintiff that he was comfortable knowing that his son was going to a bar on a regular basis rather than hanging out at home. The plaintiff testified that Bielonko, Jr., had introduced his son to the people at a bar called Bogey's, located in Agawam, Massachusetts, and had told his son to wear a Bielonko's Farm T-shirt when he went there. While Bielonko, Jr., admitted that he had been to Bogey's a few times, he testified that he had not encouraged his son to go to Bogey's.
The plaintiff believed there were other reasons to be concerned about Bielonko, III's drinking. One year earlier, the plaintiff witnessed an intoxicated Bielonko, III climbing through a window of the Butova residence looking for a place to sleep. The plaintiff also saw Bielonko, III drinking on several other occasions, including at the Bielonko Farm. In or around April 2004, concerns were expressed by family members that Bielonko, III was partying at his recently deceased grandmother's home with his friends. Bielonko, Jr., closed the house after learning about these concerns.
The defense contested the plaintiff's allegations regarding Bielonko, III's drinking. Bielonko, Jr., testified that he never saw his son drinking at home and never had a drink with his son. He denied that his son was drinking at his graduation party in June 2004, as the plaintiff claimed. This testimony, however, was contradicted by a photograph taken at the party showing Bielonko, Jr., his son, and the decedent. In that photograph, the cousins are apparently holding containers of alcohol.
During the morning of October 7, 2005, the decedent worked with his father making deliveries. The decedent later went to work at the Bielonko Farm, stripping tobacco with his uncle. Bielonko, III also was working on the farm, fixing a roof on one of the dairy buildings. In the afternoon, the decedent drove home to deliver some firewood, accompanied by his cousin. The decedent told his mother that he was going to a snowmobile event the following day and was spending the night at the Bielonko Farm. After delivering the firewood, the decedent and his cousin returned to the farm.
At around 6 p.m. that day, Bielonko, Jr., passed out the pay checks to his crew. He had a conversation with his son and the decedent, and one of them said that if they were going anywhere, the decedent would drive. However, Bielonko, Jr., did not know what his son and the decedent's plans were for the evening. Bielonko, Jr., did not see his son or the decedent drink any alcohol that day. He later left the farm to travel to a pool tournament, which started at 7 p.m. After the tournament, Bielonko, Jr., went out to dinner with his teammates. He arrived back at the farm around midnight. He had not spoken to the boys since leaving for the pool tournament and did not know where they went that night. At about 3:30 a.m., he was notified by telephone of the accident and immediately went to the hospital with his wife.
During the evening of October 7, 2007, the decedent and Bielonko, III went to Bogey's, in Agawam, Massachusetts. They drove there in the Bielonkos' Chevy Blazer. While at Bogey's, Bielonko, III called one of his uncles, John Bielonko, and invited him there to play pool. John Bielonko declined the invitation and went back to bed. When the cousins left the bar, they were headed in the direction of the Bielonko Farm.
The accident occurred around midnight. Bielonko, III was driving the Chevy Blazer on Suffield Street in Agawam, Massachusetts, when he hit some trees. After the crash, the first people to arrive at the scene asked Bielonko, III whether anyone was with him. He said that he was alone. He then moved the vehicle forward approximately six to eight feet. When the police arrived a few minutes later, they asked Bielonko, III again whether anyone was with him. He again answered in the negative. The decedent was eventually found pinned under the front wheels of the Chevy Blazer. The cause of death was traumatic asphyxia. Blood tests were drawn from Bielonko, III, which revealed a 0.27 blood alcohol content. The decedent's blood alcohol content was 0.22.
The plaintiff testified that he spoke with Bielonko, Jr., at the hospital after the accident. Bielonko, III had been admitted for injuries suffered in the accident. According to the plaintiff, Bielonko, Jr., admitted that he was the owner of the vehicle. Bielonko, Jr., expressed his condolences and confessed that he felt it was all his fault and that he had set a bad example. He said that his son had been drinking most of the day and was extremely intoxicated. While admitting that he expressed his condolences, Bielonko, Jr., denied talking about ownership of the vehicle or who was at fault. After the accident, the plaintiff was out of work for one week. He incurred funeral expenses in the amount of $9,500.
Two Bielonko Farm employees, Alfredo Sanchez and Edwin Valle, testified regarding the events of October 7, 2005. After leaving work, they stopped at a local liquor store, about five minutes from the farm, to buy some cigarettes. At the liquor store, they saw the decedent and Bielonko, III. The decedent was in the liquor store purchasing a case of beer and a bottle of liquor. Bielonko, III was sitting in the decedent's Chevy Astro minivan. They saw the decedent and Bielonko, III drive away in the minivan. While working on the farm, Sanchez and Valle had participated in an annual end-of-season party at the farm. They denied seeing alcohol served at any party.
Another Bielonko Farm employee, David Kelly, also testified. He knew both the decedent and Bielonko, III. From 2:00 p.m. to 4:00 p.m. on October 7, 2005, he had worked with Bielonko, III putting a roof on one of the sheds. He saw no signs that Bielonko, III had been drinking alcohol. He had never seen Bielonko, III drink on the farm. According to Kelly, there was no drinking of alcohol allowed on the farm during business hours.
David Padegimas, a friend of the Bielonko family, also testified. He had been on the school board and was not aware of any complaints being made regarding Bielonko, Jr.'s, drinking at soccer tournaments, as claimed by the plaintiff. He was not aware that Bielonko, Jr., had any drinking problem. He had been to at least one family party on the farm where alcohol was served but was not aware of any underage drinking.
On April 23, 2007, Bielonko, III pleaded guilty in Massachusetts to the crime of vehicular homicide under the influence and was sentenced to two and one-half years in prison. At about the same time, the plaintiff commenced a civil action in Hampden Superior Court in Springfield, Massachusetts, against the defendants and Bogey's. In that case, the plaintiff seeks compensation for the decedent's death.
III DISCUSSION A Prejudgment Remedy
"'Prejudgment remedy' means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order." General Statutes § 52-278a(d). Prejudgment remedies are statutory devices designed to bring the defendant's assets into custody as security for the satisfaction of the judgment the plaintiff may recover. They are limited by definition to attachments, foreign attachments, garnishments, replevin, or a combination thereof. Feldmann v. Sebastian, 261 Conn. 721, 728, 805 A.2d 713 (2002).
Pursuant to General Statutes § 52-278d(a), the prejudgment remedy hearing is limited to a determination of: "(1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . ."
"The role of the court in considering an award of a prejudgment remedy is well established. Pursuant to our prejudgment remedy statutes . . . the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . ."
"The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Citation omitted; internal quotation marks omitted.) J.K. Scalan Co. v. Construction Group, Inc., 80 Conn.App. 345, 349-50, 835 A.2d 79 (2003).
B Aoplicable Substantive Law 1 Conflict of Law
The defendants have raised conflict of law as a special defense to this prejudgment remedy application. The plaintiff argues that an inquiry regarding choice of law is premature. The issue presented is whether the court, when taking into account any defenses, counterclaims or set-offs, must resolve a choice of law issue raised as a special defense. If a choice of law determination is necessary, the court must then evaluate whether Connecticut or Massachusetts law governs.
In resolving this issue, the court must interpret General Statutes § 52-278d(a), which states in relevant part: "If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court . . ."
"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, 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 . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007). The court is mindful of "the principle that prejudgment remedies are in derogation of the common law and, therefore, that prejudgment remedy statutes must be strictly construed . . ." (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co, 268 Conn. 264, 270, 842 A.2d 1113 (2004).
In Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 795 A.2d 1274 (2002), the Appellate Court reversed the trial court's decision refusing to consider a potential counterclaim asserted by the defendants at a prejudgment remedy hearing. Id., 693. The court noted that the legislative history reflects "emphasis on ensuring that the size of the prejudgment remedy is proportionate to the actual damages that the plaintiff is likely to recover . . . [T]he hearing itself [serves] as a forum in which the defendant could raise defenses related to the prejudgment remedy." (Citation omitted.) Id., 693.
In Cahaly, the Supreme Court noted that "the relevant legislative history reveals that in 1993 the legislature amended several sections of the prejudgment remedy statutes to require trial courts to consider defenses, counterclaims and setoffs in making probable cause determinations. See, e.g., General Statutes § 52-278d(a) (trial court's 'determination of (1) whether or not there is probable cause . . . [must take] into account any defenses, counterclaims or set-offs')." Cahaly v. Benistar Property Exchange Trust Co., supra, 268 Conn. 276.
The legislative history supports the interpretation that the prejudgment remedy statute explicitly directs the trial court to take into account any defenses properly raised. The plaintiff has not challenged the manner in which the defense of conflict of law has been raised. See Rafferty v. Noto Bros. Construction, LLC, supra, 68 Conn.App. 690 (noting the absence of any qualifying statutory language that would condition a court's obligation to take into account any defenses, counterclaims or set-offs that had been raised). It is axiomatic that conflict of law may be asserted as a special defense. See DeLuca, Inc. v. Modern Packing, Superior Court, judicial district of Waterbury, Docket No. CV 98 0149871 (October 20, 1999, Pellegrino, J.) (motion to strike granted only because no explanation offered as to conflict of law raised as special defense). In many instances, issues of liability and damages may be affected by a conflict of law. See generally O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986).
"[B]ased on the language of the prejudgment remedy statutes, the rule of narrow construction that applies to such statutes, and [the] desire to read statutes in a manner that precludes absurd results"; Cahaly v. Benistar Property Exchange Trust Co., Inc., supra, 268 Conn. 278; a special defense of conflict of law must be taken into consideration in deciding a prejudgment remedy application.
The Connecticut Supreme Court has adopted the Restatement (Second) of Conflict of Laws for deciding conflict of laws issues in negligence actions. See Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 801, 830 A.2d 752 (2003). "In O'Connor [v. O'Connor, supra, 201 Conn. 632, the court recognized that it] has traditionally adhered to the doctrine that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury, or lex loci delicti . . . Under the facts of O'Connor, however, [the court] expressly abandoned categorical allegiance to the doctrine of lex loci delicti in tort actions. O'Connor . . . involved an action by the passenger of an automobile against the driver for injuries arising out of an automobile accident. Both parties were Connecticut domiciliaries but the accident occurred in Quebec, Canada. The principal issue was whether to apply the law of Quebec, which barred the plaintiff's action, or the law of Connecticut, which permitted it. The trial court [in O'Connor] applied the doctrine of lex loci delicti and granted the defendant's motion to strike the plaintiff's complaint. On appeal, [the court] substituted the most significant relationship analysis of §§ 6 and 145 of the Restatement [(Second) of Conflict of Laws] . . . for the doctrine of lex loci delicti . . . After considering the Restatement [Second] factors, [the court] concluded that Connecticut had the closest relationship and the greatest interest in the disposition of the case. [The court] therefore applied the law of Connecticut . . .
"Subsection (1) of § 145 of the Restatement (Second) of Conflict of Laws provides that '[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.' 1 Restatement (Second), Conflict of Laws § 145 (1), p. 414 (1971). Subsection (2) of § 6 of the Restatement (Second) of Conflict of Laws, in turn, provides: 'When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.' Id., § 6(2), p. 10.
"For assistance in [the] evaluation of the policy choices set out in §§ 145(1) and 6(2) [of the Restatement (Second)], we turn . . . to § 145(2) . . . which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases . . . Subsection (2) of § 145 of the Restatement (Second) of Conflict of Laws provides: 'Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.' 1 Restatement (Second), CT Page 19493 supra, § 145(2), p. 414." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 800-02. See Townsend v. Boclair, Superior Court, judicial district of New London, Docket No. CV 05 4003463 (January 5, 2007, Hurley, J.T.R.) (42 Conn. L. Rptr. 605, 608) (applying most significant relationship test, court found that Maine law applied in negligence action arising out of accident in Connecticut); Gawlak v. Mt. Snow, Ltd., Superior Court, judicial district of Middlesex, Docket No. CV 04 4001181 (January 31, 2006, McWeeny, J.) (40 Conn. L. Rptr. 658, 659-60) (concluding that Vermont law applied in a negligence action because it had a more significant relationship with the incident underlying the plaintiff's cause of action); Chang v. Chang, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 040198722 (December 10, 2004, Lewis, J.) (38 Conn. L. Rptr. 371, 372) (applying Connecticut law upon analysis of the significant relationship factors).
In accordance with the principles set forth in O'Connor, the applicable substantive law in this case is determined by analyzing whether Connecticut or Massachusetts has a more significant relationship to the occurrence at issue and the parties involved. "[I]t is the significance, and not the number, of 145 (2) contacts that determines the outcome of the choice of law inquiry under the Restatement approach. As the concluding sentence of 145 (2) states, '[t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.'" O'Connor v. O'Connor, supra, 201 Conn. 652-53.
Connecticut has a significant number of contacts with the case. The vehicle was registered in Connecticut. The defendants are lifelong residents of Connecticut. The relationship between the parties was centered on the Bielonko Farm. However, the contacts to Massachusetts are even more substantial. The plaintiff is a resident of Massachusetts, and the decedent lived there his entire life. The evidence was unclear as to what drinking, if any, occurred in Connecticut. Right before the accident, Bielonko, III was at Bogey's in Agawam. The conduct causing the injury, the drunk driving, happened in Massachusetts. Before this action was filed, the plaintiff brought suit in Massachusetts. As a result of the accident, Bielonko, III was prosecuted for violating Massachusetts criminal law. Under these circumstances, Massachusetts has a strong policy interest in applying its own substantive law to cases involving drunk driving fatalities. After due consideration, the court concludes that Massachusetts has the closest relationship and the greatest interest in the disposition of this matter. This is not a case where a foreign judgment has already entered. See Cahaly v. Benistar Property Exchange Trust Co., supra, 268 Conn. 278.
CT Page 19494
(2) Prejudgment Remedy Statutes
Having determined that Massachusetts law controls, the court must inquire whether Connecticut or Massachusetts prejudgment remedy law applies. The court concludes that Connecticut prejudgment remedy law must be followed. "Connecticut's prejudgment remedy statutes were adopted in response to a line of United States Supreme Court cases prescribing the standards of procedural due process in the area of property rights, foremost among them the opportunity to be heard at a meaningful time and in a meaningful manner." Rafferty v. Noto Bros. Construction, LLC, supra, 68 Conn.App. 691-92. The prejudgment remedy application is a process "afforded by a state statute enabling an individual to enlist the aid of the State to deprive another of his or her property by means of [a] prejudgment attachment or similar procedure." (Internal quotation marks omitted.) Hartford Accident Indemnity Co. v. Ace American Reinsurance Co., 103 Conn.App. 319, 334, 930 A.2d 701 (2007). In order to bring Connecticut assets into the custody of the law to be held as security for the satisfaction of a potential judgment, a party must comply with all the requirements under Chapter 903a. See generally Cahaly v. Benistar Property Exchange Trust Co., supra, 268 Conn. 264.The court must next determine whether there is probable cause under Massachusetts law that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff pursuant to General Statutes § 52-278d (a).
(3) Wrongful Death Actions
In Massachusetts, recovery for wrongful death is measured by the lost benefits to the decedent's next of kin, rather than on the basis of the loss to the decedent had he lived. Mass. Gen. Laws c. 229, § 2. "The wrongful death statute provides for recovery of 'the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the . . . services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered . . .' [Mass. Gen. Laws] c. 229, § 2. Chapter 229, § 1, determines the appropriate recipients of any recovery in a wrongful death action. It provides for the 'next of kin' to recover if the decedent has no spouse or issue." Schultz v. Grogean, 406 Mass. 364, 366, 548 N.E.2d 180 (1990).
Massachusetts General Laws, Chapter 229, § 2, provides in relevant part: "A person who (1) by his negligence causes the death of a person . . . shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent, (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent's death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant . . ."
In Lane v. Meserve, 20 Mass.App. 659, 482 N.E.2d 530, review denied, 396 Mass. 1103, 485 N.E.2d 188 (1985), the court, in discussing the admissibility of expert testimony in wrongful death actions, addressed the determination of damages in a wrongful death action. "General Laws c. 229, § 2 . . . provides that compensatory damages in a death action shall be in the amount of 'the fair monetary value of the decedent' to the persons entitled to receive the damages, including the 'loss of the reasonably expected net income' to such persons . . ." Information as to the decedent's future prospects has some relevance to the amount he is likely to contribute to his parents . . . Caution, however, must be used in admitting such evidence, and the testimony should be linked as closely as possible to the statutory elements. For example, any figures in this case should be limited to the common life expectancies of [the decedent] and his beneficiaries. A bare statement of [the decedent's] projected earnings without an explanation would be improper . . .
"We recognize that there is substantial authority for excluding calculations of projected earnings unrelated to contributions to the household . . .
"We decline, however, to adopt a blanket rule of exclusion. The amount of damages to be awarded in this kind of case is, to a large extent, dependent on probabilities, and many contingencies enter into the calculation." (Citations omitted.) Lane v. Meserve, supra, 20 Mass.App. 666.
The plaintiff testified regarding the decedent's work history. For several years, the decedent worked occasionally at the Bielonko Farm. He also worked for a tree service company and as a diesel mechanic trainee. At the time of his death, his take-home pay was approximately $400 per week. The plaintiff did not offer into evidence any pay stubs or income tax records relating to the decedent's past income. The court does not have much more to consider than a bare statement of the decedent's short work history. No expert testimony was presented. The plaintiff also did not demonstrate that the decedent contributed financially to his parents or paid any household expenses.
Based on the lack of evidence presented, there is not probable cause to believe that a judgment will be rendered in favor of the plaintiff on this claim under Massachusetts General Laws Chapter 229, § 2.
(4) Negligent Entrustment
Unlike Connecticut, Massachusetts does not have a family car doctrine. Instead, in similar situations, a claim may be made based on negligent entrustment of a motor vehicle.
"Liability on a theory of negligent entrustment is predicated on the owner's having entrusted a vehicle to a person who was incompetent or unfit to use it properly, whose incompetence or unfitness was the cause of the injury to the plaintiff. The general rule in Massachusetts is that the entrustor, to be liable, must have had actual knowledge of the unfitness of the entrustee (as contrasted with mere reason to know that the entrustee was unfit or incompetent)." (Internal quotation marks omitted.) Peters v. Haymarket Leasing, Inc., 64 Mass. App. 767, 771, 835 N.E.2d 628 (2005).
Massachusetts General Laws, Chapter 231 § 85A provides: "In all actions to recover damages for injuries to the person or to property or for the death of a person, arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant."
"In order to prevail on a claim of negligent entrustment of an automobile, it is necessary for the plaintiff to show, among other things, that the defendant owned or controlled the motor vehicle concerned, and that the defendant gave the driver permission to operate the vehicle." (Internal quotation marks omitted.) Alioto v. Marnell, 402 Mass. 36, 40, 520 N.E.2d 1284 (1988). In Alioto, the Massachusetts Supreme Court rejected a claim of negligent supervision brought against parents of a nineteen-year-old intoxicated driver who had been involved in an accident. Id., 36. The court found that "even assuming arguendo that the plaintiff could have shown that Richard owned or controlled the automobile, he could not have shown that Richard gave specific or general permission to [Michael] to drive the automobile . . . in light of Richard's admonition to Michael not to drive the automobile on the night of the party, and his conditioning his permission to use the Marnell premises on Michael's stipulation to this effect." (Citation omitted; internal quotation marks omitted.) Id., 40.
"The law of Massachusetts concerning negligent entrustment requires more than a showing of an implied invitation. See Leone v. Doran, 363 Mass. 1, 7, 292 N.E.2d 19, [judgment vacated as to certain parties, 363 Mass. 886, 297 N.E.2d 493] (1973); Alioto v. Marnell, [ supra, 402 Mass. 40]; Watson v. Salvoni, 27 Mass.App.Ct. 735, 737, 542 N.E.2d 1041 (1989). Compare Drescher v. Travelers Ins. Co., 359 Mass. 458, 461, 269 N.E.2d 651 (1971) (father gave son general permission to use car for any purpose to which cars commonly put, and placed no restrictions on use of car)." Pratt v. Martineau, 69 Mass.App. 670, 677, 870 N.E.2d 1122 (2007). In Drescher v. Travelers Ins. Co., supra, 359 Mass. 458, the court found that "the elder Mahoney had given his son general dominion over the car. No restrictions had been placed on its use. Being away at college, the son, in effect, was solely responsible for its operation. Since the elder Mahoney appears to have delegated such broad responsibility to his son, it is reasonable to assume that the driving of the car by the plaintiff while the son was riding in it and for his purposes was impliedly sanctioned by the father." Id., 461.
In Leone v. Doran, supra, 363 Mass. 1, the court outlined the elements of a claim of negligent entrustment of a motor vehicle and discussed, in detail, the operator incompetence or unfitness requirement. "On the issue of the operator's incompetence, clearly it is sufficient common law proof that a present condition of unfitness of the operator was actually known to the defendant owner of the automobile at the time that he entrusted it to the operator. A defendant automobile owner could be held liable . . . on evidence that he lent the vehicle to one who was visibly under the influence of intoxicating liquor . . .
"The plaintiff argues that negligence of the vehicle owner may be established by showing actual knowledge by the owner, at the time of the entrustment, of prior instances of negligence, recklessness or lawlessness by the operator. It is conceivable that a sufficient pattern of such prior incidents could be shown in an appropriate case so as to warrant an inference that the operator was an incompetent person.
"In such a case it would be necessary to prove both the incompetence of the operator and the owner's knowledge of the incompetence. In the case before us, no evidence of prior incidents of driving misconduct by Doran was shown; yet the judge instructed the jury in substance that proof of the operator Doran's reputation as a reckless driver who operated vehicles while under the influence of intoxicating liquor is sufficient proof without more. This was error. Evidence of the driver's reputation for carelessness is not admissible to prove his incompetence in an action against the defendant owner . . .
"Knowledge of the defendant owner concerning the prior conduct of the operator might well be established by inference. It is possible that the reputation of the operator could be shown to be of such a specific nature, and known in such a particular segment of the community, as to constitute some evidence that the defendant owner had knowledge of the operator's incompetence at the time of the entrustment of the vehicle . . .
"Evidence of prior incidents which tend to prove incompetence of the operator might be established by appropriate proof of prior criminal convictions, or by testimony of witnesses possessing personal knowledge of the incidents. The actual knowledge of the defendant owner might appropriately be based on information made known to him by others, rather than on personal knowledge. Evidence tending to prove prior incidents, and the defendant owner's knowledge thereof, is not admissible as evidence of the operator's fault in the accident presently in suit, and the defendants are entitled to limiting instructions to that effect." (Citations omitted; internal quotation marks omitted.) Leone v. Doran, supra, 363 Mass. 11-14.
There is no dispute that Bielonko, Jr., owned the Chevy Blazer. The court must next consider whether Bielonko, III had general permission to use the vehicle. Both defendants had a set of keys for the vehicle. Bielonko, III used the vehicle on a regular basis and was seen driving the vehicle on numerous occasions. He used the vehicle to commute to ECSU. However, the father had placed restrictions on the use of the Chevy Blazer. Bielonko, III did not have carte blanche with the car. He had to tell his parents where he was going. He was also told not to drink and drive. On the night in question, Bielonko, Jr., had reason to believe that the decedent was going to drive if the boys went anywhere. The boys were seen driving to the local liquor store in the decedent's vehicle. The court concludes that Bielonko, III did not have general permission to use the Chevy Blazer.
The evidence was unclear whether Bielonko, III was drinking alcohol on the Bielonko Farm during the day of the accident. Bielonko, Jr., denied seeing his son or the decedent drinking alcohol on the farm during that day. After Bielonko, Jr., left for the pool tournament, he had no contact with his son until after the accident. Even though there may be some truth to the assertion that Bielonko, Jr., was aware of his son's underage drinking, there is not sufficient evidence that Bielonko, Jr., was aware of any drinking by Bielonko, III on the day of the accident. There was insufficient evidence Bielonko, Jr., knew that his son was presently unfit to drive. The plaintiff also did not provide adequate evidence of prior incidents of Bielonko, III to prove his incompetence or unfitness to drive.
Based on the evidence presented, there is not probable cause to believe that a judgment will be rendered in favor of the plaintiff on the negligent entrustment of an automobile claim.
IV CONCLUSION AND ORDER
After a hearing held pursuant to § 52-278d, at which the plaintiff appeared and was fully heard, and at which the defendants appeared and were fully heard, the court finds that there is not probable cause that a judgment in the amount of the prejudgment remedy sought will be rendered in the matter in favor of the plaintiff, and, therefore, the plaintiff's application for prejudgment remedy is denied.