Opinion
No. CV 01-0811039
August 15, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#126)
Pursuant to Practice Book § 10-39 et seq., the plaintiff Maryellen Welcome moved to strike the special defenses to the second count, the third count and the fourth count filed by the defendant dated May 5, 2003.
The special defense to the second count alleges that that count is legally insufficient because it does not properly plead common-law recklessness and further that the claim for common-law recklessness does not survive the death of the defendant's decedent.
The special defense to the third count alleges legal insufficiency because of the manner in which double and treble damages were pled pursuant to Section 14-295 and again claims the plaintiff's claim to statutory double or treble damages does not survive the death of the defendant's decedent.
The special defense to the fourth count claims legal insufficiency because double and treble damages pursuant to Section 14-295 may not be imposed against an employer on a theory of vicarious liability.
For all practical purposes, the defendant made exactly the same claims in a motion to strike the second, third and fourth counts filed on April 3, 2002. That motion to strike was decided by Judge Mary Hennessey in a fifteen-page memorandum of decision dated November 21, 2002 [ 33 Conn.L.Rptr. 454].
In that memorandum Judge Hennessey wrote:
There is a split of opinion in the Superior Court as to whether a plaintiff can recover multiple damages from a defendant owner of a motor vehicle who the plaintiff claims is vicariously liable for the reckless conduct of the operator pursuant to Section 14-295 and Section 52-183.
After discussing the two lines of cases in considerable detail, Judge Hennessey concluded "for this reason, the court denies the defendant's motion to strike count four on this ground." Hennessey Memorandum at 10.
Later in the memorandum Judge Hennessey wrote:
Again, there is a split in the Superior Court on the question of what a plaintiff needs to plead in order to establish a cause of action pursuant to General Statute § 14-295. Neither the Supreme nor the Appellate Court has spoken on this issue.
Hennessey Memorandum at 13-14.
After reviewing the two lines of cases, Judge Hennessey wrote:
This court finds more persuasive the line of cases requiring the plaintiff to plead specific facts to support a claim of recklessness . . . She does not explicitly allege the specific conduct on which she is relying.
Hennessey Memorandum at 15.
Judge Hennessey then concludes by refusing to grant the Motion to Strike count two and granting the motion to strike counts three and four as well as corresponding prayers for relief.
Following Judge Hennessey's memorandum the plaintiff filed an amended complaint in which the plaintiff did "explicitly allege the specific conduct on which she is relying." The parties agree that the amended complaint would survive a motion to strike applying the law as articulated by Judge Hennessey in her memorandum of November 21, 2002.
Because plaintiff following Judge Hennessey's reasoning repled, it would appear the defendant could have filed a second motion to strike. In that motion the defendant could have made the claims that are being made here that Judge Hennessey's earlier decision, although arguably the law of the case, is not binding on a subsequent judge. However, the defendant chose to raise substantially the same issues that were in front of Judge Hennessey by making her legal claims in the form of special defenses.
The plaintiff argues that Judge Hennessey's decision is the law of the case and should be followed by this court. In the alternative, the plaintiff argues that even if the court were to reexamine the merits, it should arrive at the same conclusion that Judge Hennessey arrived at except it should strike nothing because the plaintiff has now made the "specific allegations" whose absence led to Judge Hennessey striking two counts. The defendant's argument can be understood by reading two paragraphs from the defendant's "Objection to Plaintiff's Motion to Strike" dated May 29, 2003. The defendant writes:
The law of the case doctrine "expresses the practice of judges generally to refuse to open what has been decided and is not a limitation on their power." Breen v. Phelps, 186 Conn. 85, 99 (1982).
The doctrine does not apply in this case because what has been decided is only that the plaintiff's complaint is legally sufficient as plead. What has not been decided is whether the plaintiff does in fact possess a legally sufficient cause of action against the defendants.
Section 10-50 of the Connecticut Practice Book deals with special defenses. That section provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue."
While there is no question that a motion to strike can be addressed to a special defense when the defendant fails to state a legally sufficient defense, the court is aware of no authority for the proposition that a special defense can affirmatively assert a claim that a plaintiff's pleading fails to state a cause of action. If plaintiff had not pled over so that the defendant could have filed a second motion to strike, although one which undoubtedly would have faced law of the case claims, this court would have severe reservations about testing the sufficiency of the plaintiff's complaint through the mechanism of a special defense. However, under the circumstances of this case, the court will address the merits of the law of the case argument.
The court believes that Judge Hennessey's decision is the law of the case. The court acknowledges that Judge Hennessey's determination "is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." Breen v. Phelps, 186 Conn. 86, 99 (1982). The court recognizes that:
A judge is not bound to follow the decision of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.
Westbrook v. Savin Rock Condominium Association, Inc., 50 Conn. App. 236, 239 (1998). "According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." Id. at 240.
In Breen v. Phelps, Judge Norris O'Neill had denied the defendant's motion to strike a cause of action. Subsequently Judge Pickett granted summary judgment on the same grounds which were rejected by Judge O'Neill. Breen, id. at 97.
In the case before the court, Judge Hennessey has discussed in considerable detail the issues on which the Superior Court are split. Special defenses have been used, in a somewhat unorthodox manner, to raise exactly the same questions upon which Judge Hennessey has ruled. The courts decision is not influenced by the use of special defenses rather than a second motion to strike. However, the court does consider the fact that the issue is not before it for trial or as a motion for summary judgment.
Under all of the facts before it, the court holds that this is an appropriate case to follow the common practice and to refuse to open what has been decided previously. The motion to strike the special defenses to counts two, three and four is granted.
BY THE COURT
Kevin E. Booth, J.