Opinion
No. LLI CV 06 5000731S
February 14, 2007
MEMORANDUM OF DECISION
This is the plaintiff's motion to strike (#105) the defendant's special defenses and counterclaims. For the reasons that follow, the motion will be granted in part and denied in part.
This action arises from a contract dispute between the plaintiff, a rehabilitation center, and the defendant, a former resident. On June 5, 2006, the plaintiff filed a three-count complaint against the defendant for: (1) breach of contract; (2) quantum meruit; and (3) unjust enrichment. The plaintiff alleges the following facts in its complaint. The defendant was admitted to the center on or about April 29, 2005. Upon admission, she signed a standard basic service agreement provided by the plaintiff. The defendant was a resident of the center through December 31, 2005. To date, the defendant has failed to pay monies owed to the plaintiff under the agreement.
In her answer, the defendant raises the following special defenses to the first count of the plaintiff's complaint: (1) lack of capacity; (2) duress; (3) manipulation; (4) failure to mitigate damages under 42 C.F.R. 405.1200; and (5) unclean hands, laches and equitable estoppel. To the second and third counts of the plaintiff's complaint, the defendant raises the special defenses of failure to mitigate damages under 42 C.F.R. 405.1200 and unclean hands, laches and equitable estoppel. In support of her special defenses the defendant alleges that: (1) she was confused at the time she signed the basic service agreement; and (2) the plaintiff did not give her notice that her Medicare benefits would terminate.
The defendant also brings the following four counterclaims against the plaintiff: (1) three civil rights violations; (2) false imprisonment; (3) intentional infliction of emotional distress; and (4) a CUTPA violation. In support of her counterclaim, the defendant alleges that the plaintiff cancelled her appointment with a neurologist and then rescheduled it for three weeks later with the sole intent of billing her as a self-pay patient for three additional weeks.
The plaintiff has moved to strike all of the special defenses and counterclaims. Each special defense and counterclaim will be addressed in turn.
The Defendant's Special Defenses to the Plaintiff's Breach of Contract Claim
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
Special Defense 1: Lack of Capacity:
The test of capacity to enter into a contract is "whether at the time of executing [a contract the maker] possessed understanding sufficient to comprehend the nature, extent, and consequence of [the contract]." (Internal quotation marks omitted.) Twitchell v. Guite, 53 Conn.App. 42, 50, 728 A.2d 1121 (1999), citing Nichols v. Nichols, 79 Conn. 644, 657, 66 A. 161 (1907). In the present case, the defendant argues that she lacked the capacity to enter into the contract with the plaintiff because she was confused when she signed the basic service agreement. Admitting this allegation as true, as the court must, the defendant has sufficiently pleaded facts that show that she may not have understood the nature, extent, and consequences of signing the basic service agreement. Thus, the motion to strike will be denied as to the special defense of lack of capacity.
Special Defense 2: Duress:
"For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim." (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. H.O. Penn. Machiney Co., 88 Conn.App. 687, 696, 871 A.2d 402, cert denied, 274 Conn. 909, 876 A.2d 1200 (2005). The defendant alleged that she was confused and, as a result of the confusion, she signed the basic service agreement. There is no allegation (1) of any wrongful act or threat by the plaintiff; (2) that the defendant had no reasonable alternative but to sign the basic service agreement; or (3) that the basic service agreement is unfair to the defendant. The basic service agreement is the standard agreement that every patient entering the plaintiff's center signs. Confusion, without more, is not enough to sufficiently plead duress. Thus, the motion to strike must be granted as to the special defense of duress.
Special Defense 3: Manipulation:
In her answer, the defendant alleges that the plaintiff caused her to sign the agreement while she was confused. Yet, the defendant does not put forth in her memorandum any Connecticut cases that establish "manipulation" as a valid defense to the enforcement of a contract. For this reason, the motion to strike the special defense of manipulation is granted.
Special Defense 4: Failure to Mitigate Damages Under 42 C.F.R. § 405.1200:
Under 42 C.F.R. § 405.1200, a residential provider of services must deliver valid written notice to a beneficiary of its decision to terminate Medicare-covered services. In the present case, the defendant asserts that even if the contract is a valid, she does not owe the plaintiff for services rendered pursuant to 42 C.F.R. § 405.1200, because the plaintiff had an obligation to tell her that such services would not be covered by Medicare. The defendant has not, however, alleged any specific facts to show that she was covered by Medicare and then discharged at a certain date or had her coverage terminated at the conclusion of a course of treatment without being provided notice. Moreover, the defendant has not alleged any specific facts or case law that demonstrate how the plaintiff violated the regulation or how 42 C.F.R. § 405.1200 would apply to invalidate the plaintiff's case of action. Accordingly, the motion to strike is granted as to the special defense of lack of notice under 42 C.F.R. § 405.1200.
42 C.F.R. § 405.1200 provides in relevant part: "(2) For purposes of §§ 405.1200 through 405.1204, a termination of Medicare-covered service is a discharge of a beneficiary from a residential provider of services, or a complete cessation of coverage at the end of a course of treatment prescribed in a discrete increment, regardless of whether the beneficiary agrees that the services should end. A termination does not include a reduction in services. A termination also does not include the termination of one type of service by the provider if the beneficiary continues to receive other Medicare-covered services from the provider. (b) Advance written notice of service terminations. Before any termination of services, the provider of the service must deliver valid written notice to the beneficiary of the provider's decision to terminate services.
The only specific fact contained in the pleadings related to the termination of the defendant's Medicare benefits appears in the plaintiff's motion to strike. In that motion, the plaintiff claims that 42 C.F.R. § 405.1200 does not apply in the present case because under Title XVIII of the Social Security Act; 42 U.S.C. § 1395d; the defendant's coverage was limited to 100 days. Thus the only fact contained in the pleadings is that the defendant's Medicare benefits may have been terminated after she was in the plaintiff's rehabilitation center for more than 100 days. In her objection to the motion, the defendant does not claim this limit is inapplicable, and, further, does not allege any other facts as to when Medicare benefits were terminated. Additionally, even if the defendant had specifically alleged this fact, the special defense of 42 C.F.R. § 405.1200 is inapplicable because under 42 U.S.C. § 1395b-2(a)(3), it is not the plaintiff's responsibility to provide the defendant notice of Medicare's limited long-term care benefits.
Special Defense 5: Unclean Hands, Laches, and Equitable Estoppel:
"The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). In the present case, the defendant has not alleged that the plaintiff engaged in conduct that was unfair, inequitable or dishonest during the signing of the basic service agreement. The defendant merely alleges that she was confused and, as a result, she signed the contract. Absent more, the doctrine of unclean hands will not apply to prevent enforcement of this contract.
"The equitable doctrine of laches is an affirmative defense that serves as a bar to a claim for equitable relief . . . Laches is purely an equitable doctrine . . . and is not to be imputed to one who has brought an action at law within the statutory period." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Florian v. Lenge, 91 Conn.App. 268, 281-82, 880 A.2d 985 (2005). Thus laches is not a valid defense to the enforcement of the contract. Moreover, even if asserted as a special defense to an equitable claim (as it is below in counts 2 and 3), "[l]aches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Papcun v. Papcun, 181 Conn. 618, 620-21, 436 A.2d 282 (1980). In the present case, the defendant was a resident at the plaintiff's center until December 31, 2005. This action was commenced approximately six months later on June 5, 2006. There is no allegation of how a six-month delay in filing an action for breach of contract is unreasonable or inexcusable, nor is there an allegation by the defendant of how she would be prejudiced by the action being commenced six months after the alleged breach occurred.
"Equitable estoppel . . . operates . . . to bar a party from asserting a right that it otherwise would have but for its own conduct . . . [T]here are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Citations omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005). In the present case, the defendant has not alleged that the plaintiff did or said anything that led her to believe certain facts regarding the basic service agreement existed that were not true or that induced her to sign the contract when she otherwise would not have done so. Thus, the doctrine of equitable estoppel does not apply.
If the defendant is alleging that she would not have signed the contract but for being in a confused state of mind, such an allegation is covered by the lack of capacity defense raised previously.
For the foregoing reasons, the motion to strike the special defenses of unclean hands, laches, and equitable estoppel is granted.
The Defendant's Special Defenses to the Plaintiff's Claims of Quantum Meruit and Unjust Enrichment Special Defenses 1 and 2: Failure to Mitigate Damages Under 42 C.F.R. 405.1200 and Unclean Hands, Laches, and Equitable Estoppel:The special defenses raised as to counts two and three are the same as the fourth and fifth special defenses raised as to count one. As such, the legal analysis is the same as that above, specifically that: (1) the motion to strike must be granted as to the special defense of lack of notice under 42 C.F.R. 405.1200; and (2) the motion to strike must be granted as to the special defense of unclean hands, laches and equitable estoppel.
The Defendant's Violation of Civil Rights Counterclaims (3) 1. Violation of General Statutes § 19a-550(b)(8) and 42 U.S.C. § 1396r(c)(1)(A)(ii)
The defendant claims that the plaintiff violated General Statutes § 19a-550(b)(8) and 42 U.S.C. § 1396r(c)(1)(A)(ii) by imposing or continuing a physical or chemical restraint on the defendant that caused her to remain in the plaintiff's rehabilitation center for three additional weeks. The defendant in relevant part alleges that: (1) she made an appointment with the neurologist to discover the reason for her confusion; (2) the appointment was cancelled by the plaintiff; (3) three weeks later the defendant saw a neurologist; (4) the neurologist discovered that the confusion was the result of medication that the defendant was taking; and (5) the defendant's condition improved when her physician changed her medication. Even accepting these facts as true, the defendant has only alleged that the plaintiff cancelled her appointment. The defendant does not allege that the plaintiff imposed any physical restraints on her. Furthermore, the defendant does not allege that the plaintiff gave or imposed upon her anything that would caused her to be chemically restrained. As such, the motion to strike must be granted as to this part of the counterclaim for civil rights violations.
General Statutes § 19a-550(b)(8) provides in relevant part: "each . . . patient . . . (8) is free from mental and physical abuse, corporal punishment, involuntary seclusion and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the patient's medical symptoms."
42 U.S.C. § 1396r(c)(1)(A)(ii) provides in relevant part: "A nursing facility must protect and promote the rights of each resident, including . . . (ii) Free from restraints. The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms."
Chemical restraint is not defined in 42 U.S.C. § 1396r(c)(1)(A)(ii), however, regulations defining chemical restraints suggest medication becomes a "chemical restraint" if it is used to control, limit, or restrict the patients movement or behavior. See e.g. 42 C.F.R. § 460.114. The defendant does not allege that she was given any medication to control or restrict her movement or behavior. Rather, the defendant alleges that she was confused and had to pay for three additional weeks of service. Furthermore, the defendant's counterclaim tends to show that it was the defendant's physician, and not the plaintiff, who had control of the medication that allegedly caused the defendant to be confused.
2. Violation of General Statutes § 19a-550(b)(2) and (25)
General Statutes §§ 19a-550(b)(2) and (25) require in relevant part that: "each . . . patient . . . (2) is fully informed, prior to or at the time of admission and during the patient's stay, of services available in the facility, and of related charges including any charges for services not covered under Titles XVIII or XIX of the Social Security Act, or not covered by basic per diem rate . . . (25) is entitled to be provided information by the facility as to how to apply for Medicare or Medicaid benefits and how to receive refunds for previous payments covered by such benefits." In the present case, the defendant argues that the plaintiff did not provide her with sufficient information as required by §§ 19a-550(b)(2) and (25) because she did not have the capacity to understand the agreement and that lack of understanding was akin to not being given the information at all. The defendant does not allege that she never received the information required by §§ 19a-550(b)(2) and (25). The defendant also does not claim that she never signed the basic service agreement or that it is inadequate. Sections 19a-550(b)(2) and (25), however, only require that the plaintiff provide the information to the defendant.
Moreover, General Statutes § 19a-550(e) provides in relevant part: "Any facility that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation." (Emphasis added.) The defendant does not allege that the plaintiff was negligent in failing to provide her information. In fact, the defendant admits that the basic service agreement was provided. Her only claim is that she was not bound by its terms. As such, the motion to strike as to this part of the counterclaim for civil rights violations must be granted.
3. Violation of General Statutes § 19a-550(c)
General Statutes § 19a-550(c) provides in relevant part: "[A] patient in a rest home with nursing supervision or a chronic and convalescent nursing home may be transferred from one room to another within a facility only for the purpose of promoting the patient's well-being, except as provided pursuant to subparagraph (C) or (D) of this subsection or subsection (d) of this section. Whenever a patient is to be transferred, the facility shall effect the transfer with the least disruption to the patient and shall assess, monitor and adjust care as needed subsequent to the transfer in accordance with subdivision (10) of subsection (b) of this section." General Statutes § 19a-550(e) provides: "Any facility that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation." (Emphasis added.)
The defendant in the present case claims that the plaintiff violated § 19a-550(c) because it transferred her to another room in the facility without her permission and failed to follow the procedures outlined by the statute. The defendant does not, however, allege that the plaintiff negligently deprived her of her rights under the statute. Moreover, the defendant does not allege that the transfer of rooms caused her to be injured; see § 19a-550(e); rather, the defendant's alleged injury occurred from not being able to leave the rehabilitation center and go home. For these reasons, the motion to strike as to this part of the counterclaim for civil rights violations is granted.
Counterclaim 2: False Imprisonment:
False imprisonment is "the intentional, unlawful restraint or confinement of a person's physical liberty through the exercise of force . . . express or implied." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992). "Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability . . . To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Citations omitted; internal quotation marks omitted.) Id., 820. "False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass . . . A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it . . . Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases." (Citations omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31-32, 727 A.2d 204 (1999). To create liability for false imprisonment, there must be an allegation of some type of force to restrain the defendant; either actual or implied. CT Page 2960 Berry v. Loiseau, supra, 223 Conn. 821; see also Hanssler v. New County Motor Cars of Greenwich, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0192755 (October 19, 2005, Wilson, J.); Carr v. Devereux Foundation, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067464 (September 6, 1995, Pickett, J.).
In the present case, the defendant claims that she was falsely imprisoned because the plaintiff did not take her to see the neurologist and her attorney was led to believe that she could leave the facility. She does not, however, allege that the plaintiff used any force or threat, actual or implied, to restrain her from leaving the rehabilitation center. Thus, the motion to strike as to the counterclaim for false imprisonment is granted.
Counterclaim 3: Intentional Infliction of Emotional Distress:
Intentional infliction of emotional distress requires that: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "Emotional distress is severe when it reaches a level `which no reasonable [person] could be expected to endure.' 1 Restatement (Second), Torts § 46, comment (j) (1965); Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 21, 597 A.2d 846 (1991)." Zulawski v. Stancil, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 0002035 (July 14, 2006, Hartmere, J.) [ 41 Conn. L. Rptr. 646].
In the present case, the defendant alleges that the plaintiff's cancellation and rescheduling of her appointment with the neurologist constituted intentional infliction of emotional distress and caused her "physical and emotional pain and suffering." But, I find that rescheduling an appointment does not rise to the level of "conduct that exceeds all bounds usually tolerated by decent society" or conduct that goes "beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community." Moreover, the defendant has not alleged that she suffered emotional distress that reached a level that no reasonable person could endure. The motion to strike is granted as to the claim for intentional infliction of emotional distress.
See Knight v. Southeastern Council On Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.) (reviewing recent Connecticut decisions construing extreme, outrageous conduct), citing Appleton v. Board of Education, supra, 254 Conn. 211 (finding that allegations that condescending comments about teacher's ability to read that were made in front of colleagues were insufficient to support a legally sufficient cause of action as a matter of law); DeLeon v. Little, 981 F.Sup. 728, 738 (D.Conn. 1997) (concluding that allegations concerning the plaintiff's supervisor's actions were legally insufficient when the supervisor ordered the plaintiff to purchase drugs, stand guard while supervisor ingested illegal drugs, repeatedly made telephone calls to the plaintiff at her home, threatened to terminate the plaintiff's employment and replace her with an individual of another race, implemented discriminatory sick time policies against the plaintiff, and repeatedly degraded and humiliated the plaintiff in the presence of others); Valencia v. St. Francis Hospital and Medical Center, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 94 0538867 (April 3, 1996, Hennessey, J.) (holding that allegations that the plaintiff was physically and verbally assaulted by her supervisor in front of her co-workers was insufficient as a matter of law); Baricko v. Chesebrough-Pond's USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.) (finding that allegations that the defendant created a hostile work environment, used fellow-employees to report on the plaintiff's performance, actively attempted to terminate the plaintiff, prevented the plaintiff from using vacation time, and played fellow employees against each other, held to be legally insufficient even when it was alleged that the supervisor was aware of the psychological affect his policies were having on the plaintiff).
Counterclaim 4: CUTPA Violation:
For the purposes of the motion to strike, the court "must construe the facts in the [counterclaim] most favorably to the (defendant]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]n determining whether a practice violates CUTPA . . . the criteria set out . . . for determining when a practice is unfair [are]: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within 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] violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Journal Publishing Co., Inc. v. The Hartford Courant Co., 261 Conn. 673, 695-96, 804 A.2d 823 (2002).
In the present case, the defendant alleges that the plaintiff cancelled her appointment with the neurologist for the purpose of billing her, a self-pay patient, for three more weeks. The plaintiff counters that cancelling and rescheduling an appointment does not constitute an "actual deceptive practice" because the appointment was cancelled due to lack of transportation. Viewing the defendant's allegations as true, as the court must, I find that the defendant has sufficiently alleged a CUPTA violation, and thus, the motion to strike will be denied as to this counterclaim. See e.g. Cole v. Federal Hill Dental, Superior Court, judicial district of New Britain, Docket No. CV 99 0492391 (July 20, 2000, Kocay, J.) ( 28 Conn. L. Rptr. 18) (denying a motion to strike a CUPTA claim because the plaintiff's allegations concerned the defendant's billing practices).