Opinion
No. FST CV 10 6005559
February 3, 2011
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (107.00, 121.00)
FACTS
In this action, the plaintiff, Kevin Brown, M.D., has brought suit against the defendants Yale-New Haven Health Services, Greenwich Hospital, MCIC Vermont, Inc. and the law firm of Heidell, Pittoni, Murphy Bach, LLP (the defendant). The operative pleading, which is the plaintiff's amended complaint dated August 20, 2010, alleges the following relevant facts. Until January 3, 2008, the plaintiff was employed by Yale-New Haven Health Services as the director of the emergency services department at Greenwich Hospital. On August 4, 2006, the plaintiff met and treated a patient named Kelly Frietas Sousa during the course of his employment. Subsequent to this treatment, Sousa initiated a medical malpractice lawsuit against Greenwich Hospital and five physicians including the plaintiff (the Sousa lawsuit). As, a result of this lawsuit, the plaintiff was contacted by Yale-New Haven Health Services and told that he could be provided a defense in the Sousa lawsuit pursuant to an undisclosed insurance policy provided by MCIC Vermont, Inc. The plaintiff was further told that the defendant law firm would represent all five of the physicians who were defendants in the Sousa lawsuit, as well as Greenwich Hospital. According to the complaint, the plaintiff was not told that he had a right to obtain independent counsel or that he had the ability to object to any settlements entered into by the other Sousa lawsuit defendants. There was no written retainer agreement between the plaintiff and the defendant. The plaintiff further alleges that the defendant never informed him of any potential conflicts of interest arising from this joint representation. In fact, upon meeting with one of the defendant's partners, the plaintiff was told that it was "not necessary" for him to obtain independent counsel because in most cases," settlements were covered entirely by the subject insurance policy and that individual physicians were "very rarely" reported to the National Practitioners Data Bank pursuant to 45 C.F.R. § 60.5.
As Heidell, Pittoni, Murphy Bach, LLP is the only defendant that is a party to the motion to strike that is presently before the court, it alone will be referred to as "the defendant" is this memorandum.
According to the plaintiff, "throughout the representation [the defendant] failed to exercise the degree of skill and learning commonly applied to protect a client in Plaintiff's position as independent from the competing interests of common clients, including [Greenwich Hospital]." Specifically, the plaintiff alleges that the defendant failed to inform him in a timely manner of the occurrence of Sousa's deposition, which deprived the plaintiff of an opportunity to be present and provide input. The plaintiff further alleges that he was not told for nine months that the defendant had obtained the services of an independent medical expert. In November 2009, the plaintiff was informed that the case was settled on his behalf and that he would not be reported to the National Practitioners Data Bank. When the plaintiff asked whether he could object to the settlement, the plaintiff was told that he could not because of the contractual arrangement between MCIC Vermont, Inc. and Greenwich Hospital or Yale-New Haven Health Services. The plaintiff was further informed that he would not be named as a payor of the settlement proceeds. Several weeks later, however, the plaintiff was in fact told that he would be named in the settlement and reported to the National Practitioners Data Bank. The reason for this decision was because of an independent expert opinion that the plaintiff was not told about until after the settlement. None of the other physicians represented by the defendant were reported to the National Practitioners Data Bank. On December 22, 2009, the plaintiff eventually obtained independent counsel and the defendant has refused to turn over relevant documents to the plaintiff's new attorneys.
As a result of all of this conduct, the plaintiff alleges the following claims: (1) legal malpractice against the defendant; (2) breach of fiduciary duty against the defendant; (3) breach of fiduciary duty against MCIC Vermont, Inc.; (4) breach of contract against Greenwich Hospital; (5) breach of contract against Yale-New Haven Health Services; (6) breach of the covenant of good faith and fair dealing against Greenwich Hospital; (7) breach of the covenant of good faith and fair dealing against Yale-New Haven Health Services; (8) breach of the covenant of good faith and fair dealing against MCIC Vermont, Inc.; (9) violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), against the defendant; (10) negligence against MCIC Vermont, Inc.; (11) violations of CUTPA against MCIC Vermont, Inc. and (12) violations of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. (CUIPA) against MCIC Vermont, Inc.
On August 20, 2010, the defendant filed a motion to strike and a memorandum of law in support of its motion (Dkt. Entries 107.00 and 108.00). As originally filed, the defendant's motion sought to strike counts one and six, as well as the prayer for relief associated with count one, which were located in the plaintiff's revised complaint dated August 5, 2010. The plaintiff filed a memorandum of law in opposition to this motion on September 2, 2010 (Dkt. Entry 112.00). Following the filing of the defendant's motion to strike, on August 23, 2010, the plaintiff filed a request for leave to file an amended complaint, as well as a proposed amended complaint. This complaint is now the operative complaint in the case. In this amended complaint, the plaintiff added a new cause of action against the defendant for breach of fiduciary duty and changed the numbering of the counts that are directed to the plaintiff. As a result, on October 4, 2010, the defendant filed a supplemental motion to strike and supporting memorandum of law addressing count two (Dkt. Entry 121.00 and 123.00). The plaintiff further filed a memorandum of law in opposition to this supplemental motion to strike on November 5, 2010 (Dkt. Entry 128.00). When read together, the defendant's original and supplemental motions to strike request that the court strike all of the counts levied against the defendant in the plaintiff's amended complaint dated August 20, 2010. These are counts one, two and nine. The defendant is also moving to strike the portions of the prayer for relief associated with count one that seek punitive damages and attorneys fees. The court heard argument in this matter at short calendar on December 6, 2010.
After the plaintiff filed the request for leave to file this amended complaint, the defendant filed an objection. This objection was overruled by the court, Jennings, J.T.R., on September 22, 2010. Another defendant in this case later filed a request to revise this amended complaint, to which the plaintiff filed an objection. All of the plaintiff's objections were sustained by the court, Karazin, J.T.R., on October 14, 2010.
I. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., CT Page 4262 277 Conn. 113, 117, 889 A.2d 810 (2006).
CUTPA
The defendant first moves to strike count nine alleging CUTPA on the ground that the plaintiff fails to allege facts involving the entrepreneurial aspects of the defendant's law practice. In its memorandum of law, the defendant argues that all of the allegations in this count arise from the defendant's legal representation of the plaintiff and that such allegations cannot form a legally cognizable CUTPA claim against a law firm. As a result of this immunity from CUTPA liability, the defendant argues that count nine is legally insufficient. In response, the plaintiff argues that he alleges facts involving the defendant's "engaging and disengaging of clients, its billing practices and fees." Specifically, the plaintiff contends that he alleges actions taken by the defendant in order to secure the plaintiff as a client and prevent him from obtaining independent counsel. Furthermore, the plaintiff argues that he alleges facts involving the defendant's improper billing practices. Consequently, the plaintiff contends that count nine sets forth a legally viable CUTPA cause of action.
The various counts will be addressed in the order that they are raised in the defendant's two memoranda of law in support of its motions to strike, even though this is not the numerical order set forth in the amended complaint.
"[I]n general, CUTPA applies to the conduct of attorneys . . . The statute's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law . . . Nevertheless, [the Connecticut Supreme Court has] declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law . . . [The Supreme Court has] stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA . . . [P]rofessional negligence — that is, malpractice — does not fall under CUTPA." (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). "Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law." Id. "The `entrepreneurial' exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities — advertising and bill collection, for example." Id., 782; see also Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-38, 699 A.2d 964 (1997) (stating that CUTPA can apply to the professions of law and medicine, but only for entrepreneurial aspects such as solicitation of clients and billing).
In paragraph fourteen of count one, which is incorporated by reference into count nine, the plaintiff alleges that "at the outset of the representation, [he] inquired as to whether he needed separate counsel and was told it was `not necessary,' especially as in `most cases,' settlements were covered entirely by [MCIC Vermont, Inc.] on behalf of [Greenwich Hospital] and [Yale-New Haven Health Services]. . ." As further alleged in paragraphs thirty-two and thirty-three of count nine, "[t]he representation of all individual physicians and [Greenwich Hospital] in the Sousa lawsuit, while purposefully overlooking potential and actual conflicts of interest, permitted [the defendant] to bill numerous hours above and beyond what it would have been able to bill if it only represented one physician or one hospital" and "[i]t is and/or was [the defendant's] pattern and practice to increase billable hours, regardless of its ethical obligations to its individual clients." If read in a light most favorable to the pleader and accepted as true, these allegations suggest that the defendant failed to divulge a potential conflict of interest in order to convince the plaintiff to have it represent him in the Sousa lawsuit and that this was done so that the plaintiff could over-bill its clients. As stated by one Superior Court judge, "the solicitation of a client is more apt to involve the entrepreneurial, as opposed to the representational, aspects of a legal practice because such an activity more often involves conduct occurring before the creation of the attorney-client relationship." (Emphasis in original.) Tracey v. Still, Superior Court, judicial district of Ansonia Milford at Derby, Docket No. CV 054001883 (March 23, 2006, Stevens, J.) ( 41 Conn. L. Rptr. 101, 104); see also Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005) (stating that "the conduct of a law firm in obtaining business and negotiating fee contracts does fall within the ambit of entrepreneurial activities").
The allegations of count nine also directly implicate the defendant's billing practices in that the plaintiff alleges that the defendant over-billed as a result of its representation of multiple clients in the Sousa lawsuit. Cf. Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 075005353 (May 19, 2008, Tobin, J.) ( 45 Conn. L. Rptr. 503, 505) (striking CUTPA counterclaim because of the defendant's failure "to allege any wrongdoing on the plaintiff's part other than over-billing. There are no claims that the plaintiff's bill, for example, included time incurred in working for other clients . . . Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant's case . . ."). Consequently, although it is a close call, the court finds that the plaintiff alleges enough facts regarding the solicitation of clients and billing practices to arguably place this matter within the entrepreneurial exception to the CUTPA immunity afforded to attorneys.
Additionally, the defendant argues that count nine is legally insufficient because the plaintiff fails to allege causation. In its memorandum of law, the defendant argues that there are no facts alleged indicating that the defendant's actions were the proximate cause of the plaintiff's injuries. In response, the plaintiff argues that he alleges sufficient facts in the amended complaint to establish the causation element because he alleges that he suffered injury "as a result" of the defendant's conduct.
CUTPA provides in relevant part that: "Any person who suffers any 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 in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages . . ." General Statutes § 42-110g(a). "Our courts have interpreted § 42-110g(a) to allow recovery only when the party seeking to recover damages meets the following two requirements: First, he 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 damages suffered . . . Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, `as a result of' this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Citations omitted; emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 651-52, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007);
In paragraph thirty-seven of count nine, the plaintiff alleges that he "has suffered damages as a result of [the defendant's] conduct, including but not limited to damage to his professional reputation, loss of prospective economic advantage, loss of future earnings, and diminished value in the professional marketplace." With this allegation, it can be seen that the plaintiff alleges that he suffered specific damages "as a result" of the defendant's acts that are prohibited under CUTPA. The "as a result of" of phrasing tracks the language of § 42-110g(a) and that used by the Appellate Court in Scrivani. At the motion to strike stage, the plaintiff need only allege causation in order to have a legally sufficient cause of action. The plaintiff here alleges that he suffered specific harm "as a result of" the defendant's alleged violation of CUTPA; that sufficiently alleges the causation element. See, e.g., Myers v. Ocean Trace Development, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375476 (May 3, 2002, Gallagher, J.) (stating that the plaintiffs "adequately allege causation by alleging that [they] suffered damages `as a result' of the defendants' recklessness"). Accordingly, this court denies the defendant's motion to strike count nine.
II. LEGAL MALPRACTICE
Next, the defendant law firm moves to strike count one alleging legal malpractice on the ground that the plaintiff has not pleaded any facts supporting the causation element. In its memorandum of law, the defendant argues that count one merely alleges that the outcome of the Sousa lawsuit "would have been different" but for the defendant's alleged malpractice. According to the defendant, this sort of pleading is legally insufficient in a fact pleading state such as Connecticut. In opposition, the plaintiff argues that he alleges sufficient facts to establish causation in that he alleges specific facts as to how the Sousa lawsuit would have come out differently had the defendant not committed malpractice. The plaintiff, also contends that he alleges facts demonstrating a causal connection between the defendant's alleged negligent conduct and the damages that he suffered.
"In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." (Internal quotation marks omitted.) Margolin v. Kleban Samor, P.C., 275 Conn. 765, 774, 882 A.2d 653 (2005). "As to causation: In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the case-within-a-case." (Internal quotation marks omitted.) Byrne v. Grasso, 118 Conn.App. 444, 449, 985 A.2d 1064 (2009), cert. denied, 294 Conn. 934, 987 A.2d 1028 (2010).
In paragraph thirty-four of count one, the plaintiff alleges that had the defendant provided the plaintiff "with a non-conflicted, zealous legal representation, the result in the Sousa matter would have been different with respect to Plaintiff Brown. Had Defendant identified and communicated a clear conflict of interest with respect to the `reporting' of one of its clients by the very determination of [Yale-New Haven Health Services] (another of its clients), Plaintiff would have retained independent counsel to conduct additional discovery, and the result would have been substantially different . . ." Furthermore, in paragraph sixteen, which is incorporated by reference into count one, the plaintiff alleges that the defendant's failure to inform the plaintiff "of an occurrence of a deposition of Ms. Sousa . . . deprived him of the opportunity to be present for the same and/or to participate and provide input. In conducting the deposition of Ms. Sousa, [the defendant] was confined to lines of questioning which did not — and could not — cast liability on any of its various client defendants, including the other named physicians and [Greenwich Hospital], all of whom were represented by [ the defendant]. (Emphasis in original.) With these factual allegations, the plaintiff alleges concrete examples of what would have been different had the defendant not committed its alleged malpractice. Specifically, the plaintiff alleges that he would have obtained independent counsel had he been made aware of the conflict of interest and that he would have provided input regarding the line of questioning in the Sousa deposition. The plaintiff further alleges these actions would have changed the outcome in the Sousa lawsuit. In the context of a motion to strike the court must accept these factual allegations as true. The plaintiff alleges sufficient facts to establish the causation element of a legal malpractice claim, and, as a result, the court denies the motion to strike count one.
III. PRAYER FOR RELIEF AS TO COUNT ONE
The defendant also moves to strike the portions of the plaintiff's prayer for relief as to count one that seek punitive damages and attorneys fees. In its memorandum of law, the defendant argues that count one is an ordinary tort cause of action and that Connecticut law does not allow a plaintiff to recover punitive damages or attorneys fees for such a claim. Moreover, the defendant notes that the plaintiff does not allege any statutory or contractual provision that would provide for attorneys fees in this instance. The plaintiff responds that he alleges enough facts to support a claim for punitive damages because he alleges that the defendant acted with reckless indifference and intentionally or wantonly violated the plaintiff's rights. For this reason, the plaintiff contends that he could potentially recover common-law punitive damages. The plaintiff's memorandum of law in opposition makes no argument regarding the validity of the prayer for relief seeking attorneys fees.
Pursuant to Practice Book § 10-39, a party may move to strike a prayer for relief. Nevertheless, "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). In his amended complaint, the plaintiff has provided separate prayers for relief that are directed to each individual count. The court may strike portions of the first prayer for relief that I could not be legally awarded even if the remedy in question could be obtained by the plaintiff if he were successful on other counts. As the defendant is moving to strike the plaintiff's prayer for relief requesting both punitive damages and attorneys fees, the legal standards for obtaining these two remedies will be addressed separately.
For instance, the court's striking of punitive damages and attorneys fees from the prayer for relief directed to count one would not affect the plaintiff's ability to obtain these remedies on his CUTPA claim.
"The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). "Recklessness is more than negligence, gross negligence or a failure to take reasonable precautions to avoid injury to others . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 577, 905 A.2d 1214, cert. denied, 280 Conn. 942, 912 A.2d 479 (2006). "To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004).
In his memorandum of law in opposition, the plaintiff cites to the following allegations as providing a factual predicate for his claim for punitive damages: (1) the defendant failed to inform the plaintiff of the Sousa deposition, which deprived the plaintiff of the opportunity to be present and provide input; (2) the defendant obtained the opinion of an independent expert, but it failed to share that information with the plaintiff for nine months; (3) although the plaintiff was told that he would not be reported to the National Practitioners Data Bank, the defendant eventually reported him to same; (4) the plaintiff was named as a payor on the settlement proceeds and this was done without the plaintiff's consent or knowledge and (5) when the plaintiff hired independent counsel the defendant refused to turn over the plaintiff's entire file to him. Although some of these factual allegations do implicate intentional conduct on the part of the defendant and its agents, the court finds that none of these alleged acts rise to the level of "wanton or willful misconduct" needed to obtain punitive damages. Even if construed in a manner most favorable to the pleader, the allegations in count one and those incorporated into that count only allege negligent acts, or, at worst, ordinary malfeasances. Tellingly, count one also fails to allege that the defendant committed these acts with extreme recklessness or willful or malicious intent, which is necessary for the recovery of punitive damages. For these reasons, the court orders the prayer for relief requesting punitive damages as to count one to be stricken.
Although the plaintiff does allege in count two that the defendant's conduct was willful, wanton and/or recklessly indifferent to the plaintiff's rights, this allegation is not incorporated into count one.
Next, the court will address the plaintiff's request for attorneys fees. "The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . Connecticut adheres to the American rule . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs . . . or a statute may confer such rights . . . [The Connecticut Supreme Court] also has recognized a bad faith exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney." (Internal quotation marks omitted.) AMCAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007). Additionally, "[a]ttorney's fees may be awarded . . . as a component of punitive damages." (Internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 646, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).
The plaintiff's amended complaint fails to reference any statutory or contractual provision that would allow the plaintiff to recover attorneys fees if he were successful on his legal malpractice claim. Moreover, even though the plaintiff alleges wrongdoing on the part of a lawfirm, he has brought claims against his own attorneys from the Sousa lawsuit. The plaintiff does not contend that the opposing attorneys acted in bad faith. Consequently, this exception to the American Rule does not apply here. Furthermore, as it has already been submitted that the court should strike the prayer for relief regarding punitive damages, the court could not award attorneys fees as a component of punitive damages. The court also orders the prayer for relief requesting attorneys fees as to count one stricken.
IV. BREACH OF FIDUCIARY DUTY
Finally, in its supplemental motion, the defendant moves to strike count two of the amended complaint sounding in breach of fiduciary duty. The defendant argues that this count is legally insufficient because the plaintiff fails to allege any facts implicating the type of conduct that could give rise to an actionable breach of fiduciary duty claim against a law firm. According to the defendant, all of the facts alleged in count two involve how the defendant allegedly handled a potential conflict of interest, and, at most, this states a professional negligence claim. Moreover, the defendant contends that the plaintiff's allegations regarding self-dealing are legal conclusions and insufficient to withstand a motion to strike. Additionally, the defendant also argues that count two should be stricken because it fails to allege causation. In response, the plaintiff argues that his complaint contains specific factual allegations indicating that the defendant engaged in dishonest, self-serving and immoral behavior done in order to advance its own financial interests. The plaintiff contends that his allegations regarding the fact that the defendant engaged the plaintiff as a client and placed its interests above those of the plaintiff are sufficient to state a claim for breach of fiduciary duty.
"Professional negligence alone . . . does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998). "Although [the Connecticut Supreme Court has] not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which [it has] invoked them have involved such deviations." (Emphasis in original.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). "In several recent Superior Court cases, the court has interpreted language similar to that used by the court in Murphy and other cases to require plaintiffs asserting claims for breach of fiduciary duty to allege that the defendants engaged in some form of fraudulent or immoral behavior beyond simple negligence or legal malpractice." Lee v. Brenner, Saltzman Wallman, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 065000728 (May 24, 2007, Esposito, J.) ( 43 Conn. L. Rptr. 462, 463-64). In the specific context of a case where the plaintiff alleged breach of fiduciary duty stemming from a conflict of interest, one Superior Court judge has stated that "[w]hen [only] the attorney's professional duty of care without any aspect of self-dealing is implicated, no actionable breach of fiduciary duty has occurred . . . [I]n those cases analyzing breach of fiduciary duty generally, an actionable breach is based on a conflict of interest the fiduciary himself has with the purpose of his duties on behalf of his client." (Emphasis in original.) Lavitt v. Meisler, Superior Court, judicial district of New London at Norwich, Docket No. X04 CV 0127150 (July 15, 2003, Quinn, J.) ( 35 Conn. L. Rptr. 133, 134).
In paragraph thirty-two of count two, the plaintiff alleges that the defendant breached its fiduciary duty to the plaintiff in the following manner: (1) it failed to notify the plaintiff of a potential conflict of interest in its representation of Greenwich Hospital and the five co-defendants during the Sousa lawsuit; (2) it represented the plaintiff despite a potential or actual conflict of interest; (3) it failed to obtain a written waiver from the plaintiff regarding this conflict of interest; (4) it put the interests of its other clients before the plaintiff's best interests; (5) it put its own financial interests ahead of those of the plaintiff and (6) despite the aforementioned conflict of interest, the defendant specifically communicated to the plaintiff that he did not need to hire independent counsel. None of these factual allegations, with the possible exception of the fact that the defendant allegedly placed its financial interests above those of the plaintiff, could demonstrate self-dealing on the part of the defendant. At most, the allegations in paragraph thirty-two sound in professional malpractice in handling a potential conflict of interest. Although paragraphs thirty-three through thirty-eight do have some boilerplate allegations that track the language of the elements of a breach of fiduciary duty cause of action, these allegations are, at best, unsupported legal conclusions. Under our rules of practice, "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). In a fact pleading state such as Connecticut, it is insufficient for a plaintiff to allege legal conclusions without any factual support. As the plaintiff fails to allege any facts in count two that could demonstrate that the defendant engaged in self-dealing such that it breached a fiduciary duty to its client, the court grants the defendant's motion to strike count two.
Notably, although the allegations regarding over-billing that served as the factual predicate for the plaintiff's CUTPA claim could conceivably constitute self-dealing, none of these allegations are incorporated into count two.
Having determined that the plaintiff has failed to allege any facts that could support a breach of fiduciary duty cause of action, it is unnecessary for the court to examine the defendant's alternative argument that this count should be stricken because the plaintiff did not adequately allege causation.
CONCLUSION
For the reasons stated above, the court denies the defendant's motion to strike counts one and nine, but grants the motion as to count two and the portions of the prayer for relief directed toward count one that seek punitive damages and attorneys fees.