Opinion
HHDCV1860883930S
12-13-2018
Scott NELSON v. NEW ENGLAND URGENT CARE, LLC, et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Cesar A. Noble, J.
Before the court is the motion of the defendant, New England Urgent Care, LLC (the company), to strike count two of the plaintiff’s revised complaint on the ground that the plaintiff insufficiently pleads a cause of action pursuant to General Statutes § 52-571h, which authorizes an action for damages resulting from identity theft. The defendant also moves to strike paragraph 21 of count two of the plaintiff’s revised complaint on the ground that the relief sought pursuant to § 52-571h does not include an award for emotional distress. For the following reasons, the motion to strike is denied on both grounds.
FACTS
On June 19, 2018, the plaintiff, Scott Nelson, filed a three-count revised complaint against the defendants, New England Urgent Care, LLC, and Jesse Howes, an employee of the company. In count two of the revised complaint, the only count at, issue here, Nelson alleges that Howes and the company obtained unlawful and unauthorized access to his prescription drug record and/or history constituting identity theft in violation of General Statutes § 53a-129a
The revised complaint alleges a violation of General Statutes § 52-129a in paragraph 18 of count two, but properly alleges a violation of § 53a-129a in count one. There being no § 52-129a, and in light of Nelson’s revisions to his original complaint to remedy this exact issue in count one; see Docket Entry # 106.86 and # 116; the court infers that Nelson intended to cite to § 53a-129a in count two and will construe the revised complaint in such a manner. See O’Sullivan v. Glen, Superior Court, judicial district of Danbury, Docket No. CV-13-6012450-S, 2014 WL 2580643 (May 1, 2014, Doherty, J.) (correcting citation of statute due to typographical error because defendants were "sufficiently apprised of the nature of the statute under which the plaintiffs meant to plead").
In his revised complaint, Nelson alleges the following facts. Nelson was employed by the company in November of 2011, as a physician’s assistant and, later, assumed an additional role in marketing and business development. Howes was also employed by the company and served as a lead physician’s assistant and was a member of the company’s management team. In August of 2016, Howes made an unlawful and unauthorized on-line inquiry into Nelson’s prescription history, whereby he learned that Nelson had an active prescription for Adderall. Nelson had been diagnosed with attention deficit/hyperactivity disorder (ADHD) for which Adderall was prescribed. Although his diagnosis did not impact his capacity to perform his job, the company perceived it as a disability. Howes unlawfully accessed Nelson’s prescription information by virtue of contacts with the Connecticut Department of Health. Upon learning of Nelson’s prescription history, Howes disclosed the information to the company’s management, including the company’s owner, Michael Gutman. Thereafter, the company removed Nelson from his responsibilities in marketing and business development without warning and subjected Nelson to discriminatory comments with respect to his use of Adderall. The company had no legitimate reason for knowing about Nelson’s prescription, and Nelson had not received any negative feedback during his previous five years with the company.
Until his constructive discharge/resignation on March 10, 2017, Nelson was subjected to a pattern and practice of disparate and discriminatory behavior toward him by the company due to his diagnosis and prescription. More specifically, Howes’ unauthorized access to Nelson’s prescription history constitutes identity theft pursuant to § 53a-129a "insomuch as [the company], through its agent, servant, or employee, knowingly utilized [Nelson’s] personal identifying information to obtain [Nelson’s] medical information without his consent." See Revised Compl., Count 2, ¶ 18. As a victim of identity theft, Nelson seeks to recover damages, pursuant to § 52-571h, including, but not limited to, lost wages and emotional distress.
On June 29, 2018, Howes filed a motion to strike Nelson’s request for damages for emotional distress pursuant to § 52-571h. See Docket Entry # 118. This court, Noble, J., denied the motion to strike on August 20, 2018, on the ground that § 52-571h(b) unambiguously provides for broad general damages, including emotional distress. See Docket Entry # 118.86. Thereafter, on July 17, 2018, the company filed a motion to strike count two of the plaintiff’s revised complaint on the ground that the plaintiff insufficiently pleads a cause of action pursuant to § 52-571h. The company also moves to strike paragraph 21 of count two of the plaintiff’s revised complaint on the ground that § 52-571h does not provide a basis for an award for emotional distress. On August 3, 2018, Nelson filed an objection to the company’s motion to strike. The company filed a reply brief on August 16, 2018. On August 20, 2018, the court heard oral arguments on the motion to strike.
STANDARD
"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). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
DISCUSSION
I. DEFINITION OF "PERSON" UNDER GENERAL STATUTES § 52-571h
As an initial matter, the company argues that the plain language of § 52-571h(a) does not provide for a cause of action against it because the statute only authorizes Nelson to bring an action "against the person who committed the violation." General Statutes § 52-571h(a). Specifically, the company contends that the word "person" within § 52-571h(a) expressly limits the plaintiff to bringing an action only against Howes because he was the only "person" who allegedly violated the statute. Nelson counters that the meaning of the word "person" in § 52-571h(a) is not limited solely to an individual but, rather, can be extended to the company as an employer of Howes by way of being vicariously liable under the doctrine of respondeat superior.
Section 52-571h(a) provides in relevant part: "Any person aggrieved by an act constituting a violation of section 53a-129a of the general statutes ... may bring a civil action in the Superior Court for damages against the person who committed the violation." Section § 53a-129a(a) provides: "A person commits identity theft when such person knowingly uses personal identifying information of another person to obtain or attempt to obtain money, credit, goods, services, property or medical information without the consent of such other person."
At issue is whether the word "person" as defined in §§ 52-571h and 53a-129a encompasses corporations, not just individuals. As a matter of statutory interpretation, "[w]ords in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended ... If the statutory language is clear and unambiguous, there is no room for construction." (Citations omitted; internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194-95, 567 A.2d 1156 (1989); see also General Statutes § 1-2z. Section 52-571h does not provide a definition of the word "person"; however, General Statutes § 1-1 defines "person" expansively to include "communities, companies, corporations, public or private, limited liability companies, societies and associations." See General Statutes § 1-1(k); see also Connecticut Breweries Co. v. Murphy, 81 Conn. 145, 149-50, 70 A. 450 (1908) (holding definition of person extends to corporations in liquor license statute); Rosenthal v. Dunphy, 18 Conn.Supp. 271, 272-73 (1953) (same). Section 53a-129a also does not appear to define "person" directly within the language of the statute. However, General Statutes § 53a-3, titled "Definitions" under the general provisions of the penal code, defines "person" as follows:" ‘Person’ means a human being, and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government or a governmental instrumentality ..." See General Statutes § 53a-3(1); see also General Statues § 53a-118 (providing specific definitions related to offenses including § 53a-129a, but does not include definition of person different than § 53a-3). Therefore, the company, as a limited liability company, can be considered a "person" and liable under these statutes.
Having concluded that the company falls under the purview of § 52-571h, the court must next consider whether corporate entities can violate these statutes through their agents’ and employees’ actions. Corporations of necessity can only act vicariously through their agents, employees and officers. "Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999). "[I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer’s business." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500-01, 656 A.2d 1009 (1995); see Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV-07-5009974-S, 2008 WL 2313636 (May 12, 2008, Bentivegna, J.) ("Under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee’s employment ... [A]n employer generally is liable for intentional torts committed by his employees to the same extent that he is liable for damages arising out of the negligent or reckless conduct of [his] employees" [citation omitted; internal quotation marks omitted]"). "Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990). "In determining whether an employee has acted within the scope of employment, courts look to whether the employee’s conduct: (1) occurs primarily within the employer’s authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003). "An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions." (Internal quotation marks omitted.) Id., 786.
The company primarily relies on two cases to support its theory that the doctrine of respondeat superior cannot be applied in this case. In State v. Singleton, 292 Conn. 734, 764-66, 974 A.2d 679 (2009), the Supreme Court held that courts must construe statutes as they are written, and the court could not instruct the jury on the common-law doctrine of self-defense as it would contradict the statutory language. In Collette v. Forgotch, Superior Court, judicial district of Hartford, Docket No. CV-15-6056303-S, 2016 WL 78551 (February 2, 2016, Elgo, J.) (61 Conn. L. Rptr. 825, 826-27), the court held that under General Statutes § 14-295, providing for damages for recklessness in motor vehicle accidents, only the operator of the vehicle could act with the requisite intent per the statute and, therefore, the doctrine of vicarious liability could not be applied because the language specified that only the "operator" could be at fault. In light of these cases, the company argues that this court cannot apply the doctrine of respondeat superior to § § 52-571h and 53a-129a because the statutes expressly limit liability to the "person" who committed the criminal violation. As previously discussed, however, both § § 52-571h and 53a-129a define "person" to include a limited liability company, such as the company, and the court’s application of the doctrine of respondeat superior is not directly inconsistent with the statutory language, unlike in Singleton and Collette. Moreover, the company attempts to distinguish Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 504-05, 656 A.2d 1009 (1995), by arguing that Larsen requires that the company had to authorize or ratify the specific acts committed by Howes in order to be susceptible under these statutes and that Nelson has not specifically pleaded that such occurred. Although this might be true if Nelson was seeking a cause of action against the company solely for direct liability; see Larsen Chelsey Realty Co. v. Larsen, supra, 500-01; Nelson appears to be seeking a cause of action against the company for vicarious liability.
In his revised complaint, Nelson alleges, inter alia, the following. Howes is an employee of the company, held the position of a lead physician’s assistant, and was a member of the company’s management team. See Revised Compl., Count 2, ¶ 4. Howes made an unlawful and unauthorized on-line inquiry into Nelson’s prescription history and learned that Nelson had an active prescription for Adderall. See Revised Compl., Count 2, ¶ 8. Moreover, Howes unlawfully accessed Nelson’s prescription medications by virtue of Howes’ contacts with the Connecticut Department of Health. See Revised Compl., Count 2, ¶ 16. Howes disclosed the fact that Nelson had the Adderall prescription to the company’s management, including the company’s owner; see Revised Compl., Count 2, ¶ 9; and the company began using such information against Nelson thereafter. See Revised Compl., Count 2, ¶¶ 10-16.
Finally, Nelson has specifically pleaded that the company, by way of Howes acting as an agent and/or employee of the company, knowingly utilized Nelson’s personal identifying information to illegally access Nelson’s prescription history. See Revised Compl., Count 2, ¶ 18. Construing the complaint in the manner most favorable to sustaining its legal sufficiency, as the court must; see Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398; reasonable inferences may be drawn from these allegations that Howes actions occurred within the employer’s authorized time and space limits, accessing records were of the type of actions that Howes is employed to perform, and Howes’ actions were motivated, at least in part, by a purpose to serve the employer in light of the fact that Howes was a "lead" physician’s assistant and part of the management team, disclosed the information to other management team members, including the owner, and the company allegedly used this information against Nelson. See Harp v. King, supra, 266 Conn. 782-83; see also Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 505. The court can also infer that Howes was aided in accomplishing these acts by the existence of his agency relationship with the company and by having contacts with the Connecticut Department of Health and/or access to the database because of his job duties; see Gonzalez v. Harte Subaru, Inc., supra, Superior Court, Docket No. CV-10-6011240-S; and Howes’ actions furthered the company’s business as the company allegedly utilized this information on many occasions against Nelson.
Accordingly, because the word "person" in § § 52-571h and 53a-129a can be interpreted to encompass limited liability companies and other business entities, and Howes acted within the scope of his employment and to benefit the company when he accessed Nelson’s medical information, the defendant’s motion to strike count two of the revised complaint is granted.
The company’s reply brief; see Docket Entry # 128; includes an attachment concerning Howes’ registration with certain State of Connecticut on-line databases. Our courts have ruled that "a motion to strike must be considered within the confines of the pleadings and not external documents ... We are limited ... to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Accordingly, the court will not consider the company’s exhibit.
II. EMOTIONAL DISTRESS DAMAGES UNDER GENERAL STATUTES § 52-571h
The company next argues that paragraph 21 of count two of the revised complaint, seeking the award of damages for emotional distress, is inappropriate because such damages are not specifically enumerated within § 52-571h(b). Because of the expansive language in § 52571 the court is not persuaded. Section § 52-571h(b) provides in relevant part: "Damages shall include, but need not be limited to, documented lost wages ... The court may award other remedies provided by law, including, but not limited to, the costs of providing ... identity theft monitoring ..." (emphasis added). "[T]he legislature’s use of the phrase including, but not limited to ... reflects an intent to be expansive with respect to the judicial relief available ... This is because the word includes is a term of expansion, and the phrase but shall not be limited to, when coupled with the enumeration of specific or illustrative acts of ... conduct, evinces the legislature’s intent that the statute include a wide range of remedial options, with those listed in the statute being illustrative rather than exclusive." (Emphasis added; internal quotation marks omitted.) Tomick v. United Parcel Service, Inc., 324 Conn. 470, 489-90, 153 A.3d 615 (2016); see Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, 304 Conn. 204, 215, 38 A.3d 1183, cert. denied, 568 U.S. 940, 133 S.Ct. 425, 184 L.Ed.2d 255 (2012) (noting phrase "shall not be limited to" is expansive and is evidence of legislature’s intent to provide for broad interpretation).
The General Assembly clearly intended that the damages provision in § 52-571h(b) provide for broad general damages with the insertion of the phrase "including but not limited to." Consistent with the aforementioned interpretation of § 52-571h(b), this court adopts its previous order filed on August 20, 2018; see Docket Entry # 118.86; denying Howes’ motion to strike this very issue for this exact reason. Accordingly, the company’s motion to strike paragraph 21 of count two of the revised complaint for an emotional distress claim for damages should be denied.
CONCLUSION
For the foregoing reasons, the motion of New England Urgent Care, LLC, to strike count two of the revised complaint, in its entirety and/or specifically paragraph 21, is denied.