Opinion
No. FBT 09-5021710 S
April 30, 2010
MEMORANDUM OF DECISION
Presently before the court is the defendant's motion for summary judgment. That motion claims that, with respect to each of the three counts of the plaintiff's complaint, there is no genuine issue of material fact that the plaintiff's action was filed after the applicable statute of limitations had run.
On December 26, 2008, counsel for the plaintiff, Kevin Burke, issued the writ summons and complaint in this action and placed them in the hands of a state marshal. Process was served on the defendant, Yvette Klevan, by the marshal on January 5, 2009. The operative complaint is the plaintiff's second amended complaint, dated November 13, 2009. A request to revise that complaint and objections to that request are still unresolved, however, Practice Book § 17-44 permits a party to file a motion for summary judgment "at any time." The operative complaint purports to allege four causes of action: count one — intentional infliction of emotional distress; count two — misrepresentation or deceit; count three — negligence; and count four — fraudulent concealment of a cause of action.
See General Statutes § 52-593a.
All the plaintiff's causes of action are based on an alleged sexual relationship between the parties. In his complaint, the plaintiff claims that he and the defendant first shared an intimate relationship over a period of approximately two years commencing in 1989. The plaintiff alleges that in July 2005 the defendant expressed her wish to renew their past intimacy. In response, the plaintiff "indicated that he was unprepared for intimate contact as he had not purchased condoms." The defendant then declared "don't worry I'm clean and sterile," explaining that she had recently undergone chemotherapy for breast cancer. In his complaint, the plaintiff alleges that he and the defendant immediately commenced an intimate relationship that the plaintiff claims lasted until December 2006. The plaintiff further claims that in December 2006, "the plaintiff complained that, for the first time in his life, he was experiencing problems with genital warts, to which the defendant responded "what's the big deal . . . they are only little warts." After this conversation the plaintiff claims to have terminated his relationship with the defendant.
The plaintiff alleges that he was recently informed by his physician that he contracted from the defendant, two incurable sexually transmitted viral diseases, human papilloma virus (HPV) and genital herpes type 1 (HSV-1). The plaintiff seeks compensatory, consequential and punitive damages.
On December 9, 2009, the defendant filed the present amended motion for summary judgment, on the ground that there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law. The plaintiff filed a memorandum in opposition to the motion on February 18, 2010. On February 25, 2010, the defendant filed a memorandum of law in further support of the motion. The defendant's motion was heard by the court at short calendar on March 1, 2010. Subsequently, the plaintiff and defendant filed supplemental memoranda of law on March 15, 2010, and March 17, 2010, respectively.
A prior motion for summary judgment was filed on November 2, 2009, but was superceded by the present motion.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks removed.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
STATUTES OF LIMITATIONS
In the memorandum of law in support of the motion, the defendant argues that each of the plaintiff's claims are barred by the applicable statute of limitations pursuant to General Statutes § 52-577. Specifically, the defendant argues that the plaintiff began having symptoms of a sexual transmitted disease in late September 2005 and that he notified the defendant of that fact. She further claims that on October 18, 2005 she authorized her treating gynecologist, Dr. Orit Beitner, pursuant to a HIPAA (Health Insurance Portability Accountability Act) authorization, to discuss the results of her medical testing with the plaintiff. She further argues that at that time the plaintiff was fully informed of her medical condition, which began the running of the statutes of limitations. The defendant also argues that "the plaintiff cannot prove the essential elements of his claims."
In a supplemental memorandum, dated March 15, 2010, the defendant also addresses the two-year statute of limitations under § 52-583 for each cause of action.
In support of her motion, the defendant has attached as exhibits relevant portions of both parties' depositions, facts about the viral infections, a copy of the first amended complaint, copies of the plaintiff's medical records, a copy of the original complaint and, curiously, an affidavit from Simon L. Allentuch, a member of the law firm representing the defendant.
In opposition to the motion, the plaintiff attached excerpts of the parties' depositions, a personal affidavit, copies of the defendant's medical records, an affidavit of Dr. Thomas Murray authenticating and discussing the defendant's medical records, the defendant's responses to interrogatories and an affidavit of Dr. Nicholas A. Viner, attesting to the plaintiff's medical conditions.
In his supplemental memorandum in opposition to the motion, the plaintiff claims that he did not learn the full extent of the viral infections until September 4, 2009, during discovery in this matter. The plaintiff also claims that during his October 18, 2005 conversation with Dr. Orit Beitner he was not informed of the severity of the HPV, even though the defendant was, at that time, likely infected with high risk cancer causing strains. The plaintiff claims that the statutes of limitations did not begin to run until he acquired full knowledge of his infections in September 2009. Further, the plaintiff argues that even if the statutes of limitations might have otherwise started to run on or about October 18, 2005, the statutes of limitations would have been tolled due to the defendant's concealment of her infection with high risk cancer causing strains of HPV. This concealment, the plaintiff argues, would toll the statutes until discovery revealed the exact HPV strains, as he, a male, was physically unable to undergo a test to determine which strains of HPV he had contracted.
The plaintiff originally filed an opposition memorandum on December 2, 2009, but after the defendant filed an amended motion for summary judgment, on February 18, 2010, the plaintiff filed the first of two supplemental memoranda of law.
I Applicable Statute of Limitations
In order to rule on the defendant's motion, the court must first determine the appropriate statute of limitations applicable to each count of the complaint. "[O]ur Supreme Court has held that the three year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections . . ." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299 (2003). "The three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section." Collens v. New Canaan Water Co., 155 Conn. 477, 491 (1967). When the "conduct of the defendant [is] neither negligent nor reckless and wanton but [rather] intentional . . . General Statutes § 52-584, by its terms does not apply to [the] action; rather General Statutes § 52-577, which requires actions founded upon a tort to be brought within three years from the date of the act or omission complained of, would govern." Alteiri v. Colasso, 168 Conn. 329, 331-32 (1975).
In count one of his complaint, the plaintiff alleges intentional infliction of emotional distress. In count two, the plaintiff alleges misrepresentation or deceit, claiming that the defendant acted intentionally in "exposing the plaintiff to potentially incurable debilitating diseases" and in misrepresenting "her physical and medical condition as healthy." In count three the plaintiff alleges negligence in that the defendant breached her duty of care to the plaintiff "when she recklessly pursued sexual intimacy with the plaintiff." Thus, the plaintiff is alleging both intentional and negligent conduct by the defendant. The intentional torts alleged in counts one and two are governed by General Statutes § 52-577, which provides for a statute of limitations of three years.
"No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff's claims of negligence and reckless, wanton or wilful misconduct in count three are governed by § 52-584, which provides, in relevant part, that the cause of action must "be brought within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
In count four of his complaint, the plaintiff alleges concealment of a cause of action in violation of General Statutes § 52-595. That statute provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
In State ex. rel. McClure v. Northrop, 93 Conn. 558, 564 (1919), the Supreme Court held that the effect of the statute is to suspend the running of statutes of limitations until the right of action is discovered by the injured party. The essential elements of a cause of action under the statute are that the defendant: "(1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff's cause of action; (2) intentionally concealed these facts from the plaintiffs; and (3) concealed the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action." Falls Church Group, Ltd. v. Tyler Cooper and Alcorn, LLP, 281 Conn. 84, 105 (2007).
General Statutes § 52-595 does not create a cause of action. "The only remedy under General Statutes § 52-595 is a tolling of the relevant statute of limitations until the time when the person entitled to sue therein first discovers its existence." (Internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 83 fn 9 (2002). The court will consider the plaintiff's reliance on that statute as a claim that the statutes of limitations otherwise applicable to the causes of action alleged in the first three counts of his complaint to have been tolled because of the defendant's fraudulent concealment of each of those causes of action.
II Running of the Statute of Limitations
The court's next consideration is to determine when the statute of limitations began to run for each cause of action. The defendant argues that the statute of limitations for each cause of action began to run on October 18, 2005 when the plaintiff was authorized to speak to her gynecologist, Dr. Beitner, or at the latest in December 2005 when the defendant claims her sexual relationship with the plaintiff terminated. The plaintiff argues that the statutes of limitations did not begin to run until December 2006 when he claims the sexual relationship ended or until September 4, 2009 when the plaintiff discovered the exact strains of HPV with which the defendant was infected. While there is a genuine issue of fact as to when the parties ceased to be sexual partners, the court finds that the date the affair ended is of no relevance to any issues in the case and accordingly is not material.
The parties agree that their sexual and intimate contact commenced in July 2005. The defendant submitted portions of the plaintiff's deposition, in which he testified that "October, November [of 2005] . . . was the start of [his symptoms]" and at some point during those months the plaintiff told the defendant "[s]omething is wrong here." In his deposition, the plaintiff further testified that the defendant's gynecologist told him in October 2005 that the defendant had "an active HSV-1 infection in her genital tract," and that upon finding out about the test, the plaintiff stated that "I got tested — to be honest with you, the first thing was I vomited. I was sick, because I recognized the implication of it. I avoided getting tested for months, just because I was upset. I did ultimately get tested, and I am positive."
The defendant also submitted her deposition, in which she testified "[the plaintiff] did discuss [his conversation with the defendant's gynecologist] with me, and basically, you know, said that he thoroughly discussed my test results with [Dr. Beitner]." In her deposition testimony, the defendant described how she asked the plaintiff "[d]o you have any other questions about [the viral infections]" to which the plaintiff responded "[n]o." Dr. Viner, in his affidavit in support of the plaintiff's memorandum, also corroborates the time line of events, including when the plaintiff first had symptoms of the viral infections, stating "[the plaintiff] has been seen [by Dr. Viner] since February 13, 2006 for intermittent bouts of prostatitis . . ." and that "[the plaintiff] felt he was exposed to HPV during unprotected sexual activity and has been concerned all along about whether he was exposed to the more high-risk strains."
A. Counts One and Two — Intentional Torts Statute of Limitations Under § 52-577
Based on the depositions of both parties, it is undisputed that after a HIPAA release was signed, the plaintiff spoke with the defendant's gynecologist on October 18, 2005, and learned that the defendant tested positive for the viral infections. There is no dispute that the plaintiff was aware that the defendant tested positive for viral infections, as the plaintiff testified that the defendant gave her gynecologist a HIPAA release, at which time the gynecologist "called [the plaintiff] and said that [the defendant] had a `healthy crop' . . . of genital warts on both her cervix and vaginal wall . . . A couple of months later, now I'm getting [the warts]." Although the plaintiff "recognized the implications of [the plaintiff's viral infections]," he waited a few months before getting tested for the viral infections, on approximately February 13, 2006. It is also undisputed that the plaintiff began complaining about potential symptoms from the viral infections prior to October 18, 2005, and waited months to be tested. In his deposition, the plaintiff testified that "I have not been right since I touched her." This would indicate that the injury, the viral infections, occurred before October 2005 and that the plaintiff learned that the defendant was the probable source of his maladies no later than October 18, 2005.
The evidence does not show whether the defendant was aware that she was infected with a sexual transmitted disease when she commenced her affair with the plaintiff in July 2005. Even if a finder of fact could infer that she must have known of her condition at the time and wrongfully chose to conceal it from the plaintiff, any fraudulent concealment of her condition and the causes of action which her conduct might have given rise to ended on October 18, 2005.
The plaintiff claims that the defendant continued to conceal her actual condition from the plaintiff after October 18, 2007 by failing to get tests which would reveal the gravity of the infections she might have passed along to the plaintiff. The court finds no factual basis supporting a claim that the defendant fraudulently concealed any cause of action from the plaintiff in violation of General Statutes § 52-595, after October 18, 2005. Any possible concealment, intentional or otherwise, ended when the plaintiff learned that he had suffered potentially actionable harm. Once the plaintiff had that knowledge, the tolling of statutes of limitations provided under General Statutes § 52-595 ended.
Although, after October 18, 2005, the plaintiff may have learned more about the consequences of the sexual transmitted disease(s) he was suffering from there is no question that he was aware, as of that date, that he had suffered actionable harm. "Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered the essential elements of a cause of action . . . a breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are the essential elements of a cause of action in negligence; they are therefore necessary ingredients for `actionable harm.' . . ." (Citation omitted.) Lagassey v. State, 268 Conn. 723, 748-49 (2004).
With respect to count one of the plaintiff's complaint, the essential elements of a cause of action for intentional infliction of emotional distress are: 1) that the defendant intended to inflict emotional distress, or that the defendant knew or should have known that emotional distress was the likely result of her conduct; 2) that the conduct was extreme and outrageous; 3) that the conduct was the cause of emotional distress experienced by the plaintiff; and 4) that the emotional distress sustained by the plaintiff was severe. Petyan v. Ellis, 200 Conn. 243, 253-54 (2003).
In count one, the plaintiff claims that when the defendant told him that she was clean and sterile in July 2005, when she knew or should have known that she was not, and that she knew and should have known she was infected with sexually transmitted diseases, that she should have known that she was likely to inflict the plaintiff, her sexual partner, with these diseases, that such conduct was extreme and outrageous, and that after the plaintiff learned of his infection he suffered severe emotional distress as a result.
There is no issue of material fact that the plaintiff was aware of all the elements of his first cause of action by October 18, 2005. Prior to that date he had experienced symptoms which he suspected were the result of his relationship with the defendant, on that date he learned that she was infected with a serious sexually transmitted diseases and immediately suffered such emotional distress that he vomited.
With respect to count two of the plaintiff's complaint, the essential elements of a cause of action for misrepresentation or deceit are: 1) the plaintiff must prove that the defendant made a false representation as a statement of fact; 2) the plaintiff must prove that the statement was untrue and known to be untrue by the defendant or that the defendant made the statement with reckless disregard for the truth of the matter; 3) the plaintiff must prove that the defendant made the statement to induce the plaintiff to act on it; and 4) the plaintiff must prove that the plaintiff did act on the statement to his injury. Miller v. Appleby, 183 Conn. 51, 54-55 (1981).
In count two, the plaintiff alleges that the statements made to him by the defendant in July 2005 were either knowingly false or made with reckless disregard to their truth, that he relied on those statements by having unprotected sex with the defendant and, as a consequence, was infected with a sexually transmitted disease. There is no issue of material fact that the plaintiff learned of all the elements of his second cause of action, no later than October 18, 2005.
The plaintiff argues that the statute of limitation did not begin to run until he learned the full extent and severity of the diseases he had contracted as a result of his relationship with the defendant. The Appellate Court considered a similar claim in Lindsay v. Pierre, 90 Conn.App. 696 (2005). In that case the plaintiff was involved in a motor vehicle accident on May 5, 2001 and on that same day experienced headaches, neck and back aches and tenderness in one of her breasts. She did not seek treatment until June 22, 2001. She commenced her lawsuit against the defendant driver on June 18, 2003. The court rejected the plaintiff's claim that the statute of limitation did not begin to run until she learned that her injuries were more serious than she had previously thought. The court held: "The fact that the plaintiff's injuries increased in severity following the accident does not delay commencement of the statute of limitations period. The harm need not have reached its fullest manifestation before the statute begins to run." (Citation omitted; internal quotation marks omitted.) Lindsay v. Pierre, supra, 90 Conn.App. 701.
The court finds that, even considering the greatest possible tolling period available to the plaintiff under General Statutes § 52-595, the statute of limitations began to run on counts one and two when the plaintiff was made aware of the defendant's positive tests for the viral infections on October 18, 2005.
The court finds that there is no issue of material fact which would have prevented the statute of limitations for counts one and two from expiring on October 18, 2008. In the absence of such an issue of material fact, the court finds that the defendant's defense of statute of limitations prevents the plaintiff from prevailing on the claims set forth in counts one and two of his complaint. Accordingly, summary judgment may enter in favor of the defendant as to both counts.
B. Count Three — Negligence Statute of Limitations Under § 52-584.
Count three of the plaintiff's complaint alleging negligence, is governed by Connecticut General Statutes § 52-584. That statute requires that an action for injury to a person caused by negligence be commenced within "two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." (Internal quotation marks omitted.) Lindsay v. Pierre, 90 Conn.App. 696, 699 (2005). The three year time limit is a statute of repose because it specifies the time beyond which an action under § 52-584 is absolutely barred. McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334 (1984).
The court finds that the plaintiff was fully aware of all elements of his claim for negligence by October 18, 2005 and he was further aware that he had suffered actionable harm as of that date. Even considering the greatest possible tolling period available to the plaintiff under General Statutes § 52-595, the two-year statute of limitations began to run on count three when the plaintiff was made aware of the defendant's positive tests for the viral infections on October 18, 2005 and expired on October 18, 2007.
Moreover, It is well established that "the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 265 (1994), overruled on other grounds by Grey v. Stamford Health System, Inc., 282 Conn. 745 (2007). "Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 (2000). Even assuming the greatest possible tolling period available to the plaintiff under General Statutes § 52-595, the three-year repose period would have expired on October 18, 2008.
The court finds that the defendant is entitled to summary judgment on count three of the plaintiff's complaint.
Judgment in favor of the defendant may enter on all counts of the complaint in accordance with this memorandum of decision.