Opinion
No. CV02-0187145S
July 31, 2006
MEMORANDUM OF DECISION
I. Introduction
This is an action by a boat owner against the owners and operators of a boat storage facility in Norwalk where the boat, a Marathon inboard/outboard cruiser, was stored during the winter of 1999-2000. The plaintiff complains factually of two things: (1) that the defendant made unauthorized use of the plaintiff's boat, trailer and license plate to remove, haul, transport and pick up boats owned by others, and (2) that in February 2000 plaintiff's boat while being removed from its trailer, fell to the ground damaging the hull of the boat and fatally injuring the operator of the equipment. Count I alleges that the use of the trailer was "unauthorized" and "without the permission and/or knowledge of the plaintiff"; and also that the fall of the vessel and resulting hull damage were caused by the negligence of the defendants. Count II alleges breach of the contract of storage between the parties in that the defendants improperly stored the vessel and in that the defendants "[engaged] in conduct intentionally, recklessly and negligently, which has caused the Plaintiff to be denied the use of his aforesaid vessel, the enjoyment of cruising the high seas in said vessel, and caused the Plaintiff severe emotional distress, knowing that his vessel was involved in the death of another human being . . ." Count III alleges that the foregoing conduct of the defendant was in violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq. ("CUTPA"). The plaintiff claims money damages on all counts and punitive damages and an award of attorneys fees under the CUTPA count.
Although there was evidence put forth without objection that the plaintiff has not paid the full amount of the agreed storage charge for the 1999-2000 winter season, and significant winter and summer storage charges incurred since that winter, the defendants have filed no counterclaim to recover those charges, nor have they plead the special defense of right of setoff (Practice Book § 10-54). The parties agreed at trial that the unpaid storage charges are not at issue in this litigation. Likewise, the partially signed "Winter Storage Contract" admitted into evidence as Defendant's Exhibit B contains a provision at ¶ 10 that the defendants shall have a lien on the vessel for unpaid sums due for storage and other unpaid charges. There is nothing in the pleadings invoking those purported lien rights, and the parties agree that the defendants' lien rights are not involved in this litigation.
It is undisputed that the plaintiff's boat has been continuously located at the defendant's yard since October 1999 to the time of trial.
II. Findings of Fact
The Court finds the following facts proved by a preponderance of the evidence.
1. The plaintiff is an individual, a resident of New Jersey, who at all relevant times was the owner of 1988 Marathon 25-foot inboard outboard cruiser (the "Vessel") which he had purchased new in Maryland in 1990 for about $18,000-$19,000.
2. The plaintiff docked the Vessel during the 1998 and 1999 boating seasons at Oyster Bay Marina in Norwalk, and used the Vessel with his wife for cruising and outings on Long Island Sound.
3. The defendants Craig Cuello and Carlos Cuello are and at all relevant times were the owners and operators of a boat storage facility in Norwalk known by the made name "American Yacht Services." The defendants were at all relevant times engaged in the trade or commerce of storing boats on dry land and providing associated services for boat owners.
4. The plaintiff stored the Vessel along with its trailer (also owned by the plaintiff) at American Yacht Services during the winter of 1998-1999. The Vessel was removed from the defendants' facility for the 1999 boating season, but the trailer remained at the defendants' facility
5. The Vessel was stored again at the defendants' facility for the 1999-2000 winter season, starting in October 1999. A written Winter Storage Contract (Ex. B) was prepared and signed by the plaintiff, but has never been signed by the defendants. The writing (erroneously dated October 15, 1998 instead of 1999) provided for total storage charges of $625 (based on a rate of $25 per foot) plus $37.50 in sales tax, for total agreed charges of $662.50. On November 26, 1999 the plaintiff made a partial payment of $330, leaving an unpaid balance of $332.50.
6. The defendants accepted the vessel for winter storage in October 1999, and hauled the Vessel from the water, and have billed the plaintiff for the unpaid balance of storage fees at the contract rate.
7. Sometime prior to October 1999 the plaintiff had given the defendants verbal authority to use his boat trailer for purposes of hauling or launching or moving other owners' boats in and around the storage yard. This permission was granted in recognition of plaintiff's delinquent account with the defendants. The defendants used the plaintiff's trailer for such purposes prior to and after February 2000.
8. Although the plaintiff claims (and the defendant denies) that permission to use the trailer had been revoked prior to the 1999-2000 winter season, the Court finds that the plaintiff has not met his burden of proving that he had revoked his authorization to use the trailer. This finding is consistent with the fact that the plaintiff's financial account with the defendants remained in arrears through the 1999-2000 winter season. The plaintiff did ask the defendants to use their own dealer license plates when using the trailer, and they complied with that request.
9. Although the boat was not initially placed on the trailer at the start of the 1999-2000 winter storage season, it was stored on the trailer by January 2000.
10. Sometime in January 2000 Mr. Bobby Barron, described as the "best friend" of the defendant Carlos Cuello, asked Carlos Cuello if he could use the plaintiff's trailer. Bobby Barron was not an employee of the defendants nor was he otherwise engaged in the business of the defendants. Defendant Carlos Cuello agreed to let Bobby Barron use the plaintiff's trailer.
11. The Vessel had to be removed from the trailer before Bobby Barron could use it.
12. Although Carlos Cuello told Bobby Barron he would remove the vessel from the trailer by using a crane, Bobby Barron attempted to remove the Vessel from the trailer by using the defendants' forklift. Carlos Cuello was elsewhere in the yard "about a minute away" at the time. Carlos Cuello admitted that Bobby Barron's attempt to lift the Vessel off the trailer by forklift was "improper."
13. As Bobby Barron was lifting the Vessel by forklift it was "hanging in the slings" and a strap broke causing the Vessel to fall about 24 inches to the ground.
14. As the Vessel fell it struck Bobby Barron causing him to sustain serious injuries from which he died the following day.
15. As a result of the Vessel striking the ground from a height of about 24 inches the hull and keel of the Vessel were punctured. The damage extended about 4 to 6 inches on either side of the keel.
16. The defendant Carlos Cuello tried to notify the plaintiff of the accident by calling his New Jersey phone number listed on Exhibit B. He spoke with a woman believed to be the plaintiff's daughter who said the plaintiff did not live there and asked the defendant not to call again. Carlos Cuello told her of the accident and left a message for the plaintiff to call, but he failed to call back. He also sent a letter to plaintiff's New Jersey address giving notice of the accident and asking the plaintiff to call, but the plaintiff did not call.
17. The plaintiff came to the defendant's yard in February or March 2000 to see his boat and observed the damage to the Vessel. He had tried to get into the defendants' premises on one or two earlier occasions, but the gate was closed and he saw a sign that "someone had died." He later learned that it was his boat that had been involved in the accident. There had been messages from the defendants on his answering machine.
18. Carlos Cuello is a trained technician qualified to repair fiberglass hulls. He undertook to repair the damage to the vessel at no expense to the plaintiff. He actually repaired an area larger than the area of the actual damage because there was hull "delamination" (separation of layers) in the area surrounding the damage and he wanted to make sure of a good bond. He actually repaired about a 4-foot section around and including the damaged area. The repairs were completed to industry standards. 19. After the repairs were completed the plaintiff came to Norwalk and inspected the work in the presence of Carlos Cuello and his brother Craig Cuello. The defendants offered to absorb all of the plaintiff's past due accounts and return the Vessel in repaired condition free of all charges. Although the plaintiff seemed content with that offer, he did not remove the Vessel or the trailer, and they have remained at defendants' premises continuously until the time of trial in March 2006. This litigation was commenced in 2002.
20. The plaintiff's present position is that he does not want the Vessel anymore. He doesn't trust the repairs for going across Long Island Sound, and he is afraid the hull will split open. Also, his wife doesn't want the boat because someone was killed.
21. The plaintiff testified that the Vessel was worth $12,000 to $13,000 in January 2000 prior to the accident. This is based on the Appraisal Guidelines found on the N.A.D.A. website. The defendant's expert Richard Collins testified that in his opinion the Vessel had a fair market value of about $6,000 as of January 2002 when he inspected it at defendants' premises. By that time the Vessel had been left uncovered and unlocked for some time and had sustained mildew and rot, and most of the equipment had been stolen or vandalized. It is not necessary for the Court to make a finding of a fair market value of the entire Vessel, since it has not been totally destroyed. The proper measure of damages would be the difference in value after the accident as compared to before the accident. The plaintiff offered an opinion of value before the accident but no evidence of value after the accident. Mr. Collins testified that there was no difference in value because in his opinion the repairs were a "good solid repair" which would not affect fair market value. The Court does not accept that value conclusion by Mr. Collins, and will discuss that issue below. In any event Mr. Collins' opinion of value is off the mark time-wise, being directed to a time frame two years after the accident after the Vessel had sustained deterioration and vandalism.
Conclusions of Law
Count I: (Unauthorized Use of Trailer): The Court has found that the defendant's use of the plaintiff's trailer was in accordance with verbal authority given by the plaintiff which authority was not revoked. Therefore, the plaintiff has not proved his claim of unauthorized trailer use by the defendants. (This conclusion, however, does not extend to use of the trailer by Bobby Barron.)
Count I (Negligence): The Court finds that the defendant Carlos Cuello was negligent in giving his best friend Bobby Barron permission to use the plaintiff's trailer, and by failing to supervise Bobby Barron or otherwise ensure that he would not attempt to remove the Vessel from plaintiff's trailer by using defendant's forklift in an improper manner. This negligence would be imputed to the defendant Craig Cuello since the American Yacht Services facility was operated jointly by both brothers, and Carlos Cuello's negligence occurred on the premises while he was engaged in the business of American Yacht Services. The Court further finds that the negligence of Carlos Cuello was a proximate cause of the fall of the Vessel, and the damage to the Vessel. But, as the Court has previously found, the plaintiff has failed to produce proper proof of the damages to the vessel caused by the fall, by failing to prove the difference in value before and after the accident. "The court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but allows for some objective ascertainment of the amount." (Citation omitted.) Dixon v. Trubisz, 17 Conn.App. 216, 218 (1988). In a negligence case, the failure to prove damages is not an omission which would permit the Court to find liability and then award nominal damages. Actual damages caused by negligent conduct is an essential element of a cause of action in negligence, and a plaintiff who fails to prove actual damages has failed to prove his cause of action. An award of nominal damages for negligence is inappropriate. Right v. Breen, 277 Conn. 364, 372 (2006), overruling Keller v. Carone, 138 Conn. 405 (1951). The plaintiff therefore has not proved his negligence case under Count I.
Count II (Breach of Contract: The Court finds that there was a verbal agreement between the parties for dry land storage of the Vessel over the 1999-2000 winter season at a rate of $25 per foot, plus sales tax. The terms of the contract are the same as set forth on the partially signed written contract (Exhibit B). Defendant Carlos Cuello testified that it was the defendants' practice not to sign Winter Storage contracts until full payment had been made by the boat owner, which explains the defendants' failure to sign the agreement. Nonetheless, the defendants did prepare the contract, ask the plaintiff to sign it, accept a $330 partial payment, accept the Vessel for storage, remove it from the water, and thereafter bill the plaintiff for the unpaid balance at the contract rate. The Court is satisfied that there was a meeting of the minds as to contract terms and that a verbal agreement existed with partial performance by both parties. The Court further finds that the defendants breached the parties' verbal contract by agreeing to let Bobby Barron use the plaintiff's trailer and by failing to ensure that the Vessel was properly removed from the trailer to permit Bobby Barron to use the trailer. Use of the stored equipment by a third party without the plaintiff's consent is outside the scope of authorized usage under the contract. The defendant had possession of the Vessel for purposes of storage and safekeeping through the winter. It was improper for Carlos Cuello to allow his best friend to use the plaintiff's trailer knowing that the vessel would have to be removed from the trailer to permit its use by Bobby Barron. The plaintiff, however, has not proved any actual contract damages to the Vessel because he has failed to present evidence of fair market value before and after the hull damage, or any evidence relating to his claimed loss of use value. He has also totally failed to present any evidence of "severe emotional distress" as claimed in Count II. He testified that he no longer wants the Vessel because of a concern that the hull, after repair, might breach in actual usage on Long Island Sound, but that is insufficient evidence to constitute severe emotional distress damages. There was no evidence of any emotional impairment or of any need for counseling. The testimony about the plaintiff's wife's dislike of using the Vessel because it had been the instrument of a fatality is irrelevant because she is not a party to this action. The plaintiff is therefore entitled to no more than nominal damages under Count II.
Count III (CUTPA).
Conn. Gen. Stat. § 42-110g provides that ". . . any person who suffers an ascertainable loss of money or property real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." Section 42-110b provides that "(a) No person shall engage in unfair methods of competition or unfair or deceptive acts or practices in the conduct of any trade or commerce."
The Court has found that the defendants were at all relevant times engaged in the trade or commerce of storing boats on dry land and providing associated services for boat owners.
It is well established that:
A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damage suffered. (Internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 130 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). The second requirement for a valid CUTPA claim does not necessitate that the actual amount of ascertainable loss be proven. See Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 78-79, 717 A.2d 724 (1998); Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981), on appeal after remand, 192 Conn. 252, 470 A.2d 121 (1984). Reader v. Cassarino, 51 Conn.App. 292 (1998).
In determining whether or not the conduct at issue constitutes an unfair or deceptive trade practice, courts must apply the so-called "cigarette rule" which asks:
(1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statute, the common law, or otherwise — whether, in other words, it is in at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.
(Citations omitted. Internal quotation marks omitted). Jacobs v. Healey Ford Subaru, Inc., 231 Conn. 707, 725 (1995).
Applying the "cigarette rule" test to the facts of this case, the Court finds that the defendants did commit an unfair trade practice by agreeing to permit a friend to have unauthorized usage of plaintiff's trailer in breach of the contract between the parties, and in failing to observe and supervise that friend in his admittedly improper use of defendants' forklift resulting in severe hull damage to the Vessel. The Court finds that conduct to be unethical and unscrupulous, and unfairly in violation of defendant's common-law obligation under the contract to safeguard the property accepted for storage. The same facts that establish a breach of contract may be sufficient to establish an unfair trade practice CUTPA violation. Lester v. Resort Camplands, International, Inc., 27 Conn.App. 59 (1992). There is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, the majority of courts holding that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of "substantial aggravating circumstances." Raffone v. Home Depot USA, Inc., Docket No. CV02-0465471, Superior Court, Judicial District of New Haven (June 23, 2003, Harper, J.) ( 34 Conn. L. Rptr. 747) (motion to strike CUTPA count granted: plaintiff alleged Home Depot's failure to deliver window unit conforming to plaintiff's specifications absent any claim of fraud or other aggravating circumstances.) In keeping with that majority position with which the Court agrees, the Court finds substantial aggravating circumstances attending defendant's breach of contract. This was not a "simple" breach of contract such as a missed deadline, or defects in workmanship. There were aggravating circumstances in that there was a serious violation of the trust plaintiff extended to the defendants in turning over the Vessel for storage and safekeeping. Connecticut common law has always recognized a special relationship of trust and strict obligations of care between a bailor and a bailee for hire. Maynard v. James, 109 Conn. 356 (1929) (A bailee is liable in an action for tort for an injury to the property bailed occurring during the use of it by him or by others with his consent, which was neither expressly nor impliedly authorized by consent of the bailment even though the injury was the result of accident and not negligence in the manner in which the property was used.) The Court also considers the fact that a fatality occurred as a consequence of defendant's conduct as an aggravating circumstance. A CUTPA violation is therefore found to be established.
As to the second requirement of Reader v. Cassarino, supra, damages — the plaintiff has not — as previously noted — presented the Court with a basis for a reasonable estimate of the damages suffered, but that is not a fatal defect to a CUTPA count provided that the plaintiff has established the statutory standing requirement of proving an "ascertainable loss" in order to bring a private action. The "ascertainable loss" standard requires no more than the ". . . production of evidence fairly suggestive that, as a result of an unfair or deceptive trade practice, [the plaintiff] received something different from that for which [he] had bargained . . . Whether the evidence offered any reasonable basis for fixing the amount of the [plaintiff's] damages is a question which need not be considered." (Internal quotation marks omitted; citation omitted.) Hinchcliffe v. American Motors Corp., 184 Conn. 607, 619 (1981). The plaintiff here has met that standard. There was no evidence that the Vessel had any significant damage history when it went into storage in October 1999. What the plaintiff bargained for was the return of the vessel in the spring of 2000 also without significant damage history. Even though the defendants repaired the January 2000 hull damage to the Vessel and those repairs were made to industry standards, the plaintiff stood to receive back "something different," i.e. a repaired boat with a history of significant hull damage. For purposes of determining an "ascertainable loss" it is of no moment that the loss was not quantified by the evidence. Hinchcliffe, supra. The plaintiff therefore has standing under § 42-110g.
As previously indicated, the Court does not accept the opinion testimony of defendant's expert witness Richard Collins that the repaired hull damage would not affect market value. The damage was not merely cosmetic. It was keel and hull damage, beneath the water line. Mr. Collins estimated that the repairs would have cost $1,500, which is 25% of his $6,000 estimate of the Vessel's value. Mr. Collins also testified that the fact of the damage and the repairs would have to be disclosed to any purchaser of the Vessel. This evidence confirms the Court's conclusion that the plaintiff has suffered an "ascertainable loss."
The plaintiff has not provided a reasonable basis for a monetary estimate of the damages suffered as a result of defendants' CUTPA violation. Under those circumstances, we would be entitled to no more than nominal compensatory damages. Hinchcliffe, supra, 184 Conn. at 619. But § 42-110g also permits the Court to award punitive damages. A court may award punitive damages for a violation of CUTPA even when the plaintiff has failed to show actual damages flowing from that violation. Larobina v. Home Depot, Inc., 76 Conn.App. 586, 598 (2003); Tillquist v. Ford Motor Credit Co., 714 F.Sup. 607, 617 (D.Conn. 1989). The Court, in its discretion, does award punitive damages in this case in the amount of $3,000. The Court also awards attorneys fees in favor of the plaintiff in an amount to be determined under the guidelines of Smith v. Snyder, 267 Conn. 456 (2004) CT Page 13878
Order
Judgment for the defendants on Count IJudgment for the plaintiff on Count II. Nominal damages of $10 are awarded. Judgment for the plaintiff on Count III. Nominal compensatory damages of $10 are awarded (being the same and not in addition to the nominal damages awarded on Count II). The Court also awards punitive damages to the plaintiff in the amount of $3,000.00 and awards attorneys fees to the plaintiff in an amount to be determined at a hearing on a separate motion for attorneys fees to be accompanied by an appropriate affidavit of plaintiff's counsel.
SO ORDERED.