Opinion
No. CV07-5009760S
March 31, 2008
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE THIRD AND FOURTH COUNT
In this case a motion to strike has been filed against the third and fourth counts of the revised complaint. In the first count the plaintiff alleges she was involved in an auto accident causing her injury on February 18, 2001 which was caused by another driver's negligence. She was insured by Allstate at the time. She hired the defendant attorney in March who worked at the defendant Ravel law offices and was a named partner and agent of the firm. Suit was commenced and in April 2004, the claim against the tortfeasor was settled for $20,000.
The defendant attorney notified Allstate the plaintiff intended to pursue a claim for underinsured motorist benefits. The Allstate policy, however, provided that "such actions must be brought within three years from the date of the accident."
The defendants failed to commence suit within the contractual limits of the policy and, according to the complaint, "failed to comply with and/or bring an action within the tolling provisions of Connecticut General Statute § 38a-336. Allstate denied liability based on these factors. Paragraph 12 of the first count claims the damages suffered by the plaintiff "were the direct and proximate result of the failure of the defendants to use the care and skill generally required of legal professionals, in that:
12. The damages suffered by plaintiff as described herein were the direct and proximate result of the failure of the defendants to use the care and skill generally required of legal professionals, in that:
(a) Defendants failed to bring a lawsuit for underinsured motorist benefits against Allstate within three years of the accident, as expressly required by the language of the policy;
(b) Defendants failed to provide written notice to Allstate of plaintiff's claim for underinsured motorist benefits within three years of the accident;
(c) Defendants failed to take advantage of the tolling provision of Connecticut General Statute § 38a-336(g)(1) as a "safe harbor" to extend the statute of limitations;
(d) Defendants failed to commence an action on behalf of the plaintiff against Allstate within the time limit allotted by the tolling provision of Connecticut General Statute § 38a-336.
(e) Defendants failed to order and review a copy of said "Allstate Auto Insurance Policy" and as a result, failed to comply with the conditions precedent to recovery set forth under the terms listed in the section labeled "Uninsured Motorist Insurance Under insured Motorist Insurance Coverage," Parts V and VI.
(f) Defendants failed to file an offer of judgment with the court regarding the under insured motorist insurance coverage, Parts and VI.
The last paragraph of the first count states that as "direct and proximate result of the plaintiff's negligence," the plaintiff suffered harm as she was and remains "undercompensated" for the injuries she suffered in the accident, suffered emotional trauma, and failed to receive "fund and/or interest due her because of the defendant's failure to file an offer of judgment."
The second count claims the defendant law firm changed its name to Ravel, Burkle Iassogna, LLC and this count claims this firm "is legally responsible for the liabilities of its nominal predecessor."
The motion is aimed, as noted, at the third and fourth counts. The third count incorporates the first eleven paragraphs of the first count and the respondeat superior allegations of the second count then in its paragraph 12 says,
12. The damages suffered by plaintiff as described herein were the direct and proximate result of the breach of the defendant Burkle of her contractual obligation to use care and skill generally required of legal professionals, in that:
(a) Defendant failed to bring a lawsuit for underinsured motorist benefits against Allstate within three years of the accident, as expressly required by the language of the policy;
(b) Defendant failed to provide written notice to Allstate of plaintiff's claim for underinsured motorist benefits within three years of the accident;
(c) Defendant failed to take advantage of the tolling provision of Connecticut General Statute § 38a-336(g)(1) as a "safe harbor" to extend the statute of limitations;
(d) Defendant failed to commence an action on behalf of the plaintiff against Allstate within the time limit allotted by the tolling provision of Connecticut General Statute § 38a-336.
(e) Defendant failed to order and review a copy of said "Allstate Auto Insurance Policy" and as a result, failed to comply with the conditions precedent to recovery set forth under the terms listed in the section labeled "Uninsured Motorist Insurance Under insured Motorist Insurance Coverage," Parts V and VI.
(f) Defendants failed to file an offer of judgment with the court regarding the under insured motorist insurance coverage, Parts V and VI.
Paragraph 13 repeats the damage claim of "undercompensation" and the other damage claims made in the first count.
The fourth count parallels the second count by making a respondeat superior argument against Ravel, Burkle Iassogna, LLC f/k/a Judith Ravel, Attorneys at Law. The viability of this count depends on whether the motion to strike should be granted against the third count.
(A)
The defendants' claim is straightforward and well presented; it is argued that in a legal malpractice action brought in tort, a plaintiff cannot bring a contract action "by couching a claim that one has breached a standard of care in the language of contract." Alexandru v. Strong, 81 Conn.App. 68, 79 (2004). That court went on to say that "notwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained or engaged (the attorney's) services. Id. at pp. 79-80. The defendant cites a case by Judge Gilardi, Papa Zahariou v. Malik, CV06 5005 806S (2007), which, in addition to citing Alexandru, cites Caffrey v. Stillman, 79 Conn.App. 192 (2003), which said that "a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Id. p. 197. Also see Gazo v. City of Stamford, 255 Conn. 245 (2001), where the court said with pleadings of this nature what we really have is "a tort arising out of a contract." Id. p. 263.
Paragraph 12 of the third count which purportedly lies in contract really can be characterized as setting forth various ways in which the defendants violated the standard of care. If the above reasoning of cases like Alexandru is followed, the count cannot be saved by the fact that the paragraph sets forth particular ways in which the defendants failed to use due diligence or comply with the professional standard of care — that is just a function of the fact that we are a fact pleading state.
What Connecticut's present position, as just discussed, seems to do, however, is that it leaves aside a large body of contract law in this and other jurisdictions which appears to recognize a contract action for failure to comply with industry, professional, or trade standards of care. As the most general reference work available, 17 Am.Jur.2d, "Contracts," § 612, p. 570, states:
A contracting party may be bound by the terms of the contract to perform it in a good and workmanlike manner. Moreover, as a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner.
A failure to comply with this implied duty to perform in a skillful and workmanlike manner may not only defeat recovery but may entitle the other party to damages resulting from the unskillful and unworkmanlike performance . . . With respect to the skill required of a person who is to render services, it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he (she) is employed.
Also see discussion in Legal Malpractice, Mallen Smith 5th ed. (2000), Vol. 3, § 22.3, pp. 315-16.
All of the foregoing does not suggest that in our state a medical or legal malpractice cause of action cannot be brought both in negligence and contract. Caffrey says that "a true contract claim (exists where) a plaintiff asserts that a defendant, who is a professional, breached an agreement to obtain a specific result. See Rumbin v. Baez, 52 Conn.App. 487, 491 . . . (1991)." Id. p. 197.
The ensuing discussion is interesting for this case. Caffery goes on to reject the argument by the plaintiff that the situation in CT Page 5383 Caffery was indistinguishable from Hill v. Williams, 74 Conn.App. 654 (2003). There the Caffery court held that the plaintiff's claim did sound in contract but Hill's reasoning did not apply to the situation before it said the court at page 198 because:
In Hill, we found that the plaintiff had alleged that the defendant had promised to take specific actions that he later refused to undertake and that the plaintiff suffered damages as a result. Id., 659. Here, although the plaintiff alleged that the defendant had promised to bring a liability action against the city, the plaintiff does not claim that he sustained damages as a consequence of the defendant's failure to bring such an action. Rather, he claims that the promise to bring such an action was premised on an incorrect understanding of the law and that he suffered damages as a result of the defendant's failure to understand the limits of the legal remedy.
Interestingly, Caffery, in this language, expanded the basis of a possible contract action in these malpractice cases. Not only can such an action be brought where a specific result is promised but it can be brought where the professional promised to take specific actions to achieve the result being sought.
(B)
That is exactly what we at least could have here if the allegations of paragraph 3 of the first count and incorporated in the third count were to be explicitly made a part of a paragraph 12 which purports to set forth the basis of a contract claim. Paragraph 3 says that the defendant professionals entered into a written agreement with the plaintiff "to represent her by prosecuting a claim against any party or parties arising out of injuries suffered by her as a result of the motor vehicle accident of February 18, 2001." This surely would refer to claims against the tortfeasor and the insurer under an uninsured and underinsured policy. If properly pled without as in Hill, asserting the claim was not filed because of an improper understanding of the law, a contract action would seem to lie under Hill and Caffery — that is what caused any damages, failure to bring a claim.
The problem for the plaintiff is that the allegations of paragraph 3 are not made part of the breach of contract allegations of paragraph 12. In that sense the contract claim is somewhat confusing and the court cannot use the rubric of liberal interpretation of the pleadings to save these counts. However, apart from the fact that a motion to strike is before it, under P.B. § 10-1 the court has the power to order a change in the pleadings of the pleading, here the revised complaint "does not fully disclose the ground of claim" and "do not sufficiently define the issues in dispute."
The court therefore strikes counts three and four but explicitly does not take the view that a contract claim cannot be asserted in this case under the factual allegations of paragraph 3 which could be part of a breach of contract claim.