Opinion
UWYCV136019651S
01-08-2016
Connecticut Light & Power Co. v. Robert Dickens
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Joseph H. Pellegrino, Judge Trial Referee.
The plaintiff, Connecticut Light & Power Company, an electric service provider, brings this action by way of a three-count complaint for breach of contract, conversion, and unjust enrichment, respectively, against the defendant, Robert Dickens, arising from the defendant's unauthorized access to and theft of electrical power from the plaintiff. The complaint alleges that from December of 2006 until February of 2012, the defendant tampered with the electric meter connected to his property in Waterbury used to register his electrical consumption in kilowatt hours each month. According to the plaintiff, the defendant tampered with the meter by removing the authorized electric meter, replacing it with an unauthorized meter for a period of time, and then reinstalling the authorized meter before each scheduled monthly reading. This scheme allowed the defendant to limit the actual kilowatt hours registered to the authorized meter without any loss of electrical power to the property or having to pay for electricity used while the unauthorized meter was in place. The plaintiff maintains that the defendant was able to reduce the total electricity registered to the authorized meter, and thereby not pay for, an average of 33.78 kilowatt hours per day resulting in the total loss to the plaintiff during this time period in the amount of $14, 537.09.
The matter was set for trial and evidence was heard on October 23, 2015. The parties have agreed to the following stipulated facts: (1) the defendant is an individual that resides at 361 Scott Road in Waterbury; (2) under an agreement between the parties, the plaintiff was to provide electricity to the residence and the defendant was bound to pay for that service; (3) the defendant resided at the property during the period between December of 2006 and February of 2012; and (4) the plaintiff provided electricity to the residence throughout this period.
At trial, the plaintiff called its only witness, Thomas Murphy, whose credible testimony this court bases the following findings. Murphy has been employed by the plaintiff and its successor corporation, Eversource, for twenty-seven years, and has held the positions of meter supervisor and revenue investigator. From August 2011 until January 2012, Murphy investigated suspected meter tampering at the defendant's property. According to Murphy, the plaintiff's electric meters have devices installed that alert the plaintiff when a meter is tilted and will report a tampering code to the plaintiff's customer service center. Such a code was reported relative to the meter at the defendant's property. An investigator was sent to the defendant's property with a handheld device designed to communicate with the meter, however, the investigator was unable to locate the meter or receive any communications. Murphy was thereafter sent to the property to further investigate the suspected tampering. Upon inspection, Murphy found that the ring used to secure the defendant's meter in place was not fully clasped and that its seal had been broken. Upon closer inspecting the meter itself, Murphy discovered the meter in place was not the meter that had been authorized and assigned to the defendant, and that the unauthorized meter's antenna wire was also missing.
After this discovery, Murphy spoke with the defendant who denied any knowledge of the unauthorized meter or the where-abouts of the authorized meter. The unauthorized meter was later determined to have been originally assigned to another property in Waterbury, but was removed and never returned to the plaintiff. The last reading of the unauthorized meter was at its original location and occurred on August 21, 2006. Evidence was introduced that the defendant's father, Rudolph Dickens, was employed by the plaintiff and assigned to the plaintiff's Waterbury Meter Reading Department and the Mobile Meter Reading Department until his retirement. Dicken's duties while employed by the plaintiff included the handling and reading of the plaintiff's meters in the Waterbury area. On February 2, 2012, a new meter was installed at the defendant's home.
Murphy produced a report at the conclusion of his investigation which was introduced during trial as Plaintiff's Exhibit 1. The report indicates that the electricity usage history at the defendant's property dropped significantly in December of 2006 by approximately 46% from the previous December. The report also indicates that between December of 2006 and February of 2012, the authorized meter had been installed at the defendant's property at the time of each monthly meter reading, but that the unauthorized meter had been used periodically in between readings in order to reduce the total kilowatt hours billed to the defendant. The report also credibly concludes that the defendant reduced his electricity consumption by 33.78 kilowatt hours per day and for a total unpaid value of $14, 537.09. The defendant testified at trial that he had no knowledge of any meter tampering and denied any participation in any scheme to switch out meters at his property. The court finds, however, the defendant's testimony not credible.
The trial court is afforded wide discretion in resolving factual issues tried before it. " [T]he trial court, as trier of fact, determine[s] who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier." (Internal quotation marks omitted.) Burns v. Adler, 158 Conn.App. 766, 803, 120 A.3d 555, cert. granted on other grounds, 319 Conn. 931, 125 A.3d 206 (2015). " It is axiomatic that a court cannot find facts without direct evidence or circumstantial evidence arising from inferences drawn from that evidence." LaCroix v. Glens Falls Ins. Co., 107 Conn.App. 332, 338, 945 A.2d 489 (2008). Furthermore, " [p]roof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Emphasis omitted; internal quotation marks omitted.) Stein v. Tong, 117 Conn.App. 19, 24, 979 A.2d 494 (2009). " The rule is that the [trial court's] function 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 court finds that the plaintiff has established its burden and the defendant is liable as to each count of the plaintiff's complaint. As to count one, " [i]t is well established that the elements to form the basis of a breach of contract claim are that there was a formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). It is undisputed that the parties had an agreement to provide electricity to the defendant's property. The plaintiff has provided the court with credible evidence that the defendant's electricity usage after December of 2006 decreased significantly by 46%. Coupled with evidence that the unauthorized meter went missing just a couple months prior, and the defendant being found in possession of and using that meter, the court can make the logical inference that the defendant began making use of the unauthorized meter in or around December of 2006 in order to conceal from the plaintiff his actual electric usage. By receiving the plaintiff's service and product and not paying for it in its entirety, the defendant breached the agreement and the plaintiff has suffered damages. Judgment shall enter for the plaintiff on count one.
The court reaches a similar conclusion as to the plaintiff's conversion claim in count two. " The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Emphasis omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000). The defendant in purposely using the plaintiff's electricity and concealing that use in order to avoid payment, exercised ownership and dominion at the exclusion of the plaintiff's rights to be justly compensated. Judgment shall enter for the plaintiff on count two.
Count three is a claim for unjust enrichment and the court reaches again a similar conclusion as in the preceding counts. " Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . . This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated." (Internal quotation marks omitted.) Schirmer v. Souza, 126 Conn.App. 759, 763, 12 A.3d 1048 (2011). The defendant has unjustly benefitted from the electricity which he unlawfully received, but did not pay for despite being bound by contract, and the plaintiff has suffered a loss as a result. Based upon principles of equity and fairness, the defendant is required to make restitution. Judgment shall enter as to count three of the plaintiff's complaint.
The defendant raises a number of arguments in his post-trial brief. First, the defendant points out that no evidence was produced which showed that the total kilowatt hours billed to the defendant after installing the new meter in February of 2012 resulted in any increase in the defendant's electric usage, and that any decrease in usage beginning in December of 2006 must be attributable to other causes. Second, the defendant disputes plaintiff's inference that Rudolph Dickens aided the defendant since no evidence was produced that showed that Rudolph Dickens was a meter installer or had access to the unauthorized meter in question. Finally, the defendant argues that even if the court does find sufficient facts to conclude that the defendant engaged in such a scheme, the three-year statute of limitations in General Statutes § 52-577 is nonetheless applicable and bars any recovery.
Regarding the defendant's evidentiary claims, as noted, the court finds the testimony of Mr. Murphy and the documentary evidence, Plaintiff's Exhibit 1, credible and sufficient to explain the significant decrease in electric usage at his property beginning in December 2006. The defendant argues that the plaintiff began offering energy saving light bulbs as well as advice for winterizing houses and conserving energy around 2006 which would explain the decrease. The court, however, finds that the defendant's explanation, even if true and without more, fails to substantiate such a significant decrease during such a short period of time. Further, any claim that the defendant's registered usage did not increase after the installation of the new meter in February of 2012 does not explain the significant decrease from December 2005 to December 2006, nor does it credibly suggest to the court that the defendant consistently used less energy from December 2006 until the present.
The argument that insufficient evidence was produced as to Rudolph Dickens is equally unavailing. Although the court could draw the inference that Rudolph Dickens advised the defendant or participated in this scheme in some way in light of his many years of experience as an employee for the plaintiff and his knowledge about certain industry practices, the court need not rely on such an explanation for how the defendant was able to perpetrate this theft in order to find the defendant liable for each of the plaintiff's stated counts. It is sufficient that the defendant was found in possession and in use of the unauthorized meter for that period of time.
Insofar as the defendant asserts a statute of limitations defense, it must first be noted that the applicable statute for counts one and three is the six-year limitation period in General Statutes § 52-576, and that the three-year limitation period in § 52-577 only applies to count two. Nonetheless, neither statute is applicable under the circumstances. Generally, " [w]ith [occurrence] statutes [of limitations], the limitations period typically begins to run as of the date the complained of conduct occurs, and not the date when the plaintiff first discovers his injury . . . In certain circumstances, however, we have recognized the applicability of the continuing course of conduct doctrine to toll a statute of limitations. Tolling does not enlarge the period in which to sue that is imposed by a statute of limitations, but it operates to suspend or interrupt its running while certain activity takes place . . . Consistent with that notion, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Citations omitted, internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., 312 Conn. 286, 311, 94 A.3d 553 (2014). The evidence establishes that the defendant was engaged in this scheme to tamper with the electric meter at his home until the new meter was installed in February of 2012. The defendant's theft was not completed until that point and this action, having been commenced by service on May 30, 2013, is well within the limitations periods of both statutes.
General Statutes § 52-576(a) provides in part: " No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ."
General Statutes § 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff also seeks treble damages under General Statutes § 52-564, which provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." " Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." (Citations omitted; internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520-21, 705 A.2d 215 (1998). The court finds that the defendant's scheme was intentional and perpetrated in order to avoid payment. The court awards treble damages under § 52-564.
The court finds that the plaintiff has sustained its burden and established actual damages in the amount of $14, 537.09. In addition the court will assess treble damages under § 52-564 which will increase the total damages to $43, 611.27. The court will enter judgment in favor the plaintiff and against the defendant in the amount of $43, 611.27.
It is so ordered this 8th day of January 2016.