Colfer v. Weston

• Court: Superior Court of Maine
• Decided: June 28, 2007
• Docket: KENcv-04-235
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. CV-04-235 <:\ . '........ ~ '. "" ~ .- I I - /,. "

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SEAN COLFER,

Plaintiff

v. JUDGMENT

CHARLES WESTON,

Defendant

This matter comes before the court for hearing on damages following an earlier

default of the defendant. The default established liability, and the only remaining issue

is the extent of damages. Although a mailed notice of the hearing to Mr. Weston was

returned, he called the clerk's office and had actual notice of the hearing. Mr. Weston

did not attend.

The court heard the testimony of Mr. Colfer and received voluminous

documentary evidence concerning Mr. Colfer's medical treatment, condition and bills.

Based upon the evidence, the court accepts Mr. Colfer's presentation of special damages

totaling $177,473.28. (See tab A for damages summary sheet).

With regard to compensatory damages, the court agrees with the plaintiff's

suggestion that these damages for pain, suffering and mental anguish would

reasonably total $250,000. With regard to the plaintiff's claim for permanent

impairment, the court notes Dr. Day's opinion that the plaintiff has 4% total body

permanent impairment, with some exertional limitations. Based on these

measurements, the court finds permanent impairment damages in the amount of

$200,000. 2

Finally, the plaintiff has requested punitive damages, based upon the fact that he

was physically attacked by the defendant with a golf club. In this regard, it is noted

that the defendant was prosecuted for his attack on the plaintiff. The defendant pled

guilty to a charge of elevated aggravated assault, and was ultimately sentenced to 15

years to the Deparbnent of Corrections with all but two and a half years suspended and

four years of probation, plus restitution to the Victim's Compensation Fund in the

amount of $4,752 and to the District Attorney in the amount of $637. The court initially

questioned the award of punitive damages in light of the criminal prosecution and

conviction, but is now satisfied that the two actions are not mutually exclusive. Tuttle v.

Raymond, 494 A.2d 1353, 1356 (Me. 1985). In the present case, the conviction of the

defendant and the plaintiff's testimony concerning the nature and circumstances of his

serious injuries lead the court to find by clear and convincing evidence that those

injuries were inflicted upon the plaintiff by the defendant with clear malice. Although

the court makes the necessary findings to impose punitive damages in the civil suit, the

fact of the criminal conviction must still be considered among the factors to be weighed

in determining an award of punitive damages. Hanover Ins. Co. v. Hayward, 464 A.2d

156, 159 (Me. 1983). After weighing all the factors, the court finds a proper award of

punitive damages in the amount of $50,000, after giving consideration to the

aggravating and mitigating factors including the defendant's incarceration for the same

activity.

Therefore, the court finds total damages in the amount of $677,473.28. 3

The entry will be:

Judgment for the plaintiff in the amount of $677A73.28, plus costs and interest.

Dated: June z.-e ,2007 s.;;fff!J; Justice, Superior Court SEAN COLFER - PLAINTIFF SUPERIOR COURT 47 ALBERT POINT KENNEBEC, ss. STETSON ME 04488 Docket No AUGSC-CV-2004-00235 Attorney for: SEAN COLFER SUMNER LIPMAN - RETAINED 10/20/2004 LIPMAN & KATZ & MCKEE, PA DOCKET RECORD 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051

vs CHARLES WESTON - DEFENDANT PO BOX 322, JEFFERSON ME 04348 GAYLORD WESTON (DISM) - DEFENDANT BOX 565 ROUTE 135, BELGRADE ME 04917 Attorney for: GAYLORD WESTON (DISM) SUSAN FARNSWORTH - WITHDRAWN 12/23/2004 FARNSWORTH & ASSOCIATES 103 BRUSWICK AVE. SUITE 1 103 BRUSWICK AVE. SUITE 1 GARDINER ME 04345

Attorney for: GAYLORD WESTON (DISM) WILLIAM J KELLEHER - RETAINED MARDEN DUBORD ET AL 44 ELM STREET PO BOX 708 WATERVILLE ME 04901-0708

Filing Document: COMPLAINT Minor Case Type: ASSAULT/BATTERY Filing Date: 10/20/2004

Docket Events: 10/20/2004 FILING DOCUMENT - COMPLAINT FILED ON 10/20/2004 Plaintiff's Attorney: SUMNER LIPMAN

10/20/2004 Party(s): SEAN COLFER ATTORNEY - RETAINED ENTERED ON 10/20/2004 Plaintiff's Attorney: SUMNER LIPMAN

10/20/2004 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 10/20/2004 ISSUED TO S. LIPMAN, ESQ.

10/26/2004 Party(s): GAYLORD WESTON (DISM) SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/26/2004 ORIGINAL SUMMONS WITH RETURN SERVICE MADE UPON GAYLORD WESTON

10/29/2004 Party(s): CHARLES WESTON SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/21/2004 ORIGINAL SUMMONS WITH RETURN SERVICE MADE UPON CHARLES WESTON

11/04/2004 party(s): CHARLES WESTON Page 1 of 17 Printed on: 06/29/2007 AUGSC-CV-2004-00235 DOCKET RECORD

RESPONSIVE PLEADING - ANSWER FILED ON 11/04/2004 ANSWER OF DEFENDANT, FILED. S/CHARLES WESTON, PRO SE DEFENDANT.

11/15/2004 Party(s): GAYLORD WESTON (DISM) RESPONSIVE PLEADING - ANSWER FILED ON 11/10/2004 Defendant's Attorney: SUSAN FARNSWORTH

11/15/2004 party{s): GAYLORD WESTON (DISM) ATTORNEY - RETAINED ENTERED ON 11/10/2004 Defendant's Attorney: SUSAN FARNSWORTH

11/15/2004 ORDER - SCHEDULING ORDER ENTERED ON 11/15/2004 S KIRK STUDSTRUP , JUSTICE ORDERED INCORPORATED ay REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL

11/15/2004 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 07/15/2005

11/15/2004 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 11/15/2004 S KIRK STUDSTRUP , JUSTICE

12/08/2004 Party{s): GAYLORD WESTON (DISM) DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 12/08/2004 Defendant's Attorney: WILLIAM J KELLEHER DEFENDANT, GAYLORD WESTON'S INTERROGATORIES PROPOUNDED TO THE PLAINTIFF AND DEFEDANT, GAYLORD WESTON'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO THE PLAINTIFF SERVED ON SUMNER LIPMAN, ESQ. ON 12/7/04

12/08/2004 Party{s): GAYLORD WESTON (DISM) OTHER FILING - ENTRY OF APPEARANCE FILED ON 12/08/2004 Defendant's Attorney: WILLIAM J KELLEHER ENTRY OF APPEARANCE ON BEHALF OF DEFENDANT GAYLORD WESTON, FILED.

12/09/2004 Party{s): GAYLORD WESTON (DISM) ATTORNEY - RETAINED ENTERED ON 12/08/2004 Defendant's Attorney: WILLIAM J KELLEHER

12/20/2004 Party{s): GAYLORD WESTON (DISM) RESPONSIVE PLEADING - ANSWER AMENDED ON 12/20/2004 Defendant's Attorney: WILLIAM J KELLEHER AMENDED ANSWER OF GAYLORD WESTON, FILED.

12/20/2004 Party{s): SEAN COLFER LETTER - FROM PARTY FILED ON 12/20/2004 Plaintiff's Attorney: SUMNER LIPMAN LETTER CONFIRMING AGREEMENT FOR EXTENSION OF TIME TO FILE AMENDED ANSWER.

12/22/2004 Party{s): GAYLORD WESTON (DISM) MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED ON 12/22/2004 Defendant's Attorney: SUSAN FARNSWORTH MOTION FOR LEAVE TO WITHDRAW, FILED.

12/27/2004 Party{s): GAYLORD WESTON (DISM) Page 2 of 17 Printed on: 06/29/2007