Opinion
No. CV 06 5006351
April 12, 2007
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
The estate of Alyce Chapman, acting through Garrett Myers, administrator of the estate, has filed a wrongful death action against the defendants Marvin Batts and Heath Smith. The complaint is brought in two counts. The first count is based upon negligence and the second count based upon a theory of reckless operation of a motor vehicle. Concurrent with the filing of the complaint, the plaintiff filed an application for prejudgment remedy seeking to attach the real estate of the owner of the motor vehicle allegedly involved in the collision, Marvin Batts.
On February 6, 2007, a hearing was held before the court to determine whether the criteria for the issuance of a prejudgment remedy had been established. At the conclusion of the hearing, the court found that the plaintiff had established probable cause in accordance with the statutory criteria. The court reserved decision as to the amount of the prejudgment remedy that would be granted and whether or not Connecticut General Statutes § 52-352(b)(t) prohibited the placement of a prejudgment attachment on the homestead of the defendant Marvin Batts. Counsel filed briefs on that issue.
Section 52-352(b):
The following property of any natural person shall be exempt: (t) the homestead of the exemptioner to the value of $75,000.00, or, in the case of a money judgment arising out of services at a hospital, to the value of $125,000.00, provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it.
There was evidence introduced at the hearing that the defendant Marvin Batts' home had a market value of $175,000.00 and had consensual encumbrances in the approximate amount of $126,000.00. Based upon these figures, and the $75,000.00 homestead exception, the defendant argued that no prejudgment attachment of real estate should issue. Mr. Batts has fifty thousand dollars of insurance on the motor vehicle involved in the accident.
The court has reviewed the briefs filed by the plaintiff and the defendant. The case of Bolduc v. Riches, 47 Conn.Sup. 590 (Booth, J.), [ 34 Conn. L. Rptr. 129], addressed the issues raised in this case. In Bolduc, a creditor applied for a prejudgment remedy to attach real estate owned and occupied by the defendants. The defendants' equity in the real estate was substantially less than the statutory homestead exemption. The Bolduc court drew a distinction between the action of placing a prejudgment attachment on a homestead and the action of executing on a judgment lien on the property that would relate back to the attachment. The court agrees with that distinction. The issuance of a prejudgment remedy for the attachment of real estate is for the purpose of establishing of priorities between creditors.
The court finds that there is probable cause that the Estate of Alyce Chapman, having taken into account any defenses or counterclaims or setoffs, in the amount of $500,000.00. There is insufficient insurance available to address such potential judgment, the court issues an order authorizing the attachment of real estate of the defendant Marvin Batts in the amount of $450,000.