Opinion
NNHCV136038377
01-31-2018
George NORBOE v. WELLS FARGO BANK, N.A., REO Property Advisors, LLC et al.
UNPUBLISHED OPINION
OPINION
Ecker, J.
This is a lawsuit arising from what defendants call their " property preservation activities," and plaintiff calls defendants’ " home break-ins," which took place while plaintiff was in default on his mortgage loan. This memorandum adjudicates the pending motions for summary judgment and/or to dismiss filed by defendant Wells Fargo. See Motion for Summary Judgment, dated May 30, 2017 (# 257.00); Wells Fargo’s Motion to Dismiss Sixth Count, dated June 16, 2017 (# 274.00); see also Wells Fargo’s Objection to Motion for Order, dated March 14, 2017. (# 235.00) (arguing that plaintiff lacks standing). The dispositive motions filed by the other defendants (REO Property Advisors, LLC and Mortgage Contracting Services, LLC) will be addressed in separate orders.
The court heard argument on these motions on August 7, 2017. It has read all of the memoranda and accompanying exhibits and affidavits filed by the parties. These materials have been analyzed in accordance with the legal standards applicable to the particular motion under consideration. See, e.g., Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35 (2012) (summary judgment; noting that constitutional right to a jury trial limits ability of courts to engage in summary adjudication); Windsor Financial Savings and Loan Ass’n v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017) (summary judgment); Cuzzo v. Town of Orange, 315 Conn. 606, 614-15 (2015) (motion to dismiss).
One preliminary word is in order. The court’s rulings deciding the pending motions easily could be seventy pages in length. The operative complaint contains thirty-two counts, and the pending motions, collectively, attack all counts directed at the three moving defendants. The voluminous evidentiary materials submitted by the parties in connection with these motions fill notebooks. The applicable legal principles and doctrines are not especially complicated in the abstract, but they are numerous, and there is no consensus in the courts as to how many of these various substantive rules (of agency, negligence, trespass, contract, emotional distress, unfair trade practices, etc.) should apply to the particular subject matter at issue. See generally Christopher K. Odinet, Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure, 83 U. Cin. L.Rev. 1155, 1186-93, 1200-06 (2015) (describing, and lamenting, mixed and inconsistent results in private litigation of similar claims in courts across country). In light of scheduling considerations,1 resource constraints, and the fact that this decision has no precedential effect beyond this case, the court sees no purpose in providing an elaborate recitation of the facts or an extended discussion of general legal principles.
Eight counts of the complaint are directed against defendant Wells Fargo (First through Seventh and Twenty-Fifth Counts). Most of Wells Fargo’s briefing is devoted to its motion for summary judgment, but Wells Fargo also moves to dismiss the complaint for lack of subject-matter jurisdiction, on two distinct grounds. These jurisdictional claims will be addressed first.
I. Wells Fargo’s Jurisdictional Arguments
A. The Class Action Release- Wells Fargo’s first argument for dismissal is based on the fact that plaintiff is (or may be) a member of a class that has settled a class-action lawsuit relating to " property inspection fees" on mortgages serviced by Wells Fargo, Huyer v. Wells Fargo and Company, Docket No. 4:08-cv-00507 (S.D. Iowa) (" Huyer " ). Wells Fargo argues that plaintiff’s claims in the present case have been extinguished because they fall within the scope of the release in the Huyer settlement. The court has reviewed the terms of the Settlement Agreement and the release contained therein, and rejects Wells Fargo’s position. Huyer involved claims of financial wrongdoing against Wells Fargo in connection with the fees charged to mortgagors for property inspections conducted when the homeowners were late paying their loans. The certified class entitled to damages in the Huyer settlement is limited to " [a]ll persons who, according to Wells Fargo records, paid property inspection fees billed by [Wells Fargo] ... for drive-by property inspections automatically ordered by [Wells Fargo] ... as a result of a late payment of their mortgage," Order on Class Certification, Huyer v. Wells Fargo and Company, Docket No. 4:08-cv-00507, Doc. # 206.00 (S.D. Iowa, 10/23/13), and the release contained in the Settlement Agreement is limited to claims " based upon, arising out of, or relating to, in any way, property inspection fees assessed on a mortgage serviced by Wells. Fargo, or Wells Fargo’s practices in ordering or charging borrowers for property inspections," Huyer v. Njema, 847 F.3d, 934, 936 (8th Cir. 2017). Plaintiff’s claims here have nothing to do with the property inspection fees, and have not been released.2
B. Ascertainable Loss- Wells Fargo also mounts what it characterizes as a jurisdictional attack on the Sixth Count, which sets forth plaintiff’s claim against Wells Fargo under the Connecticut Unfair Trade Practices Act (" CUTPA" ), General Statutes § 42-110a et seq. Wells Fargo contends that the court lacks subject-matter jurisdiction over this claim because plaintiff cannot prove an essential element of his CUTPA claim, namely that he suffered any " ascertainable loss" as a result of the alleged wrongdoing. See § 42-110g (" ascertainable loss" requirement); Fairfield Heights Residence Ass’n v. Fairfield Heights, Inc., 310 Conn. 797, 822 (2014) (discussing " ascertainable loss" requirement); Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18 (2008) (same). Wells Fargo also seeks summary judgment on the Sixth Count on these same grounds, among others. See Motion for Summary Judgment (# 257.00), at pp. 26-27. Whether treated as a jurisdictional issue or a merits issue, the determinative question is the same: could a fact-finder reasonably conclude, on this record, that plaintiff has suffered any ascertainable loss as that term is used in CUTPA?
Wells Fargo argues that the only harm alleged in the Sixth Count is the imposition of improper charges/fees by Wells Fargo, first in connection with the " property preservation" activities that plaintiff says never should have been undertaken, and second in the form of post-acceleration late fees which plaintiff contends would not have been approved by a court in foreclosure proceedings. Wells Fargo argues that plaintiff has suffered no " ascertainable loss" giving rise to a claim under § 42-110g, as a matter of law, because none of these allegedly improper charges and fees have actually been paid by plaintiff.
Plaintiff responds that Wells Fargo’s argument ignores numerous significant aspects of his damages claim. Plaintiff points out that, in addition to the improper charges and fees, he also suffered property damage and losses resulting from the forced entries into his home; there was a broken door, spoiled food caused by the electricity shut-off, changed locks and repair-related damage, a stolen watch, and so forth. See, e.g., Complaint, First Count, ¶¶ 12, 14, 16, 18, 23, 31; Second Count, ¶ 2; Third Count ¶ 6, 8. These allegations are all incorporated by reference into the Sixth Count, see Complaint, Sixth Count, ¶ 1, and consequently are included in the Sixth Count’s claim for damages, id. at 7 (" As a result of Wells Fargo’s conduct, the plaintiff sustained substantial injury through loss of his property ..." ).
The court agrees with plaintiff that (1) these allegations are contained within the CUTPA count, (2) there is evidentiary support upon which a jury could credit such allegations, and (3) this type of damage unquestionably qualifies as " ascertainable loss ... of property" under CUTPA. Because the harm at issue includes more than emotional distress and uncollected charges/fees, there is no need to determine whether those damages standing alone would satisfy the " ascertainable loss" requirement. Accordingly, the motion to dismiss the Sixth Count (CUTPA) is denied. Likewise, the court denies Wells Fargo’s motion for summary judgment the Sixth Count to the extent that motion is based on the contention that plaintiff cannot establish any " ascertainable loss" as a matter of law.
It is unclear whether plaintiff continues to seek injunctive relief as part of his CUTPA claim. Paragraphs 8 and 9 of the Sixth Count indicate that injunctive relief is requested, but the request for relief is not explicit in this regard. Plaintiff needs to clarify this point promptly.
II. Wells Fargo’s Summary Judgment Arguments
The remainder of Wells Fargo’s arguments in support of its motion for summary judgment fall into two basic categories. One set of arguments contend, on various theories, that Wells Fargo is not legally responsible for any wrongdoing that may have occurred in connection with property preservation activities at plaintiff’s property, because Wells Fargo’s connection to the allegedly wrongful acts is too attenuated for legal liability to attach- whether under the doctrine of respondeat superior or any other principle of agency law. These " attenuation" claims all rely on the fundamental point that the alleged wrongdoing was not committed by Wells Fargo or its employees, but, rather, by the independent contractor hired by Wells Fargo to conduct the bank’s property preservation activities (defendant Mortgage Contracting Services, LLC, hereinafter " MCS" ), or by one or more sub-contractors hired by MCS to perform those services (including defendant REO Property Advisors, LLC, hereinafter " REO" ), or by the individuals, known as " field workers," hired by REO (or others) to carry out the actual property-preservation work. Wells Fargo argues that this indisputable factual scenario creates a barrier to any legal fault on its part with respect to the claims contained in the First through Fifth Counts of the complaint.
The court first will address this set of arguments relating to Wells Fargo’s claim that is insulated from liability due to its attenuated connection to the alleged wrongdoing. The court then will consider Wells Fargo’s second set or arguments for summary judgment, which consist of stand-alone theories that are best taken up on a count-by-count basis.
A. Liability for the Actions of MCS, REO, and Others
Wells Fargo contends that it cannot be liable to plaintiff for trespass, statutory theft, conversion, or infliction of emotional distress (negligent or intentional), because the tortious conduct at issue was undertaken by an independent contractor (MCS) and/or that contractor’s vendor(s) or vendor(s)’ employees. This argument rests primarily on two precepts of agency law: (1) a principal ordinarily is not liable for the negligence of its independent contractor, see e.g., Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517 (2003); Restatement (Second) Torts § 409 (1965); and (2) a principal ordinarily is not liable for the intentional wrongdoing of its agent, see e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208 (1990). Neither doctrine warrants entry of summary judgment under the circumstances of this case.
The official comment to the Restatement add this qualification to the general rule of non-liability: " [Exceptions to this doctrine] are so numerous, and they have so far eroded the ‘general rule,’ that it can now be said to be " general" only in the sense that it is applied where no good reason is found for departing from it. As was said in Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn. 500, 277 N.W. 226 (1937), ‘Indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.’ " Id. at § 409, comment b.
There are three reasons why Wells Fargo cannot prevail at this stage based on its claim that MCS was an independent contractor. First, the fundamental question in this context is that of control; an agency relationship exists, and therefore vicarious liability attaches, if there is an understanding between the parties to the relationship that the principal controls the undertaking of the agent- and that question presents an issue of fact for the jury. See, e.g., Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543-44 (2006) (discussing elements of agency relationship, including control). For obvious reasons, the label used by the defendants to characterize the relationship is not determinative, id. ; otherwise the principal could immunize itself from liability at the stroke of a pen, without regard to operational reality. The fact-finder ultimately must decide the " control" issue on the facts of each case, typically by reference to a well-established set of factors developed to distinguish between employees and independent contractors. See: id. (" Some of the factors listed by the Second Restatement of Agency in assessing whether such [an agency] relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent ..." ); see, e.g., Hanson v. Transportation General, Inc., 245 Conn. 613, 629-30 (1998) (listing complete set of factors from Restatement (Second) Agency § 220 (1958) ).
Although the doctrine is probably most often applied to distinguish between independent contractors and employees, it also finds frequent application to determine the reach of liability in situations comparable to that here, involving general and sub-contractors. See Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 53-54 (2008).
There are circumstances in which the question of control can be determined as a matter of law. See e.g., Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. at 54. This is not such a case. The court has reviewed the evidence relating to the existence vel non of an agency relationship between Wells Fargo and MCS (and, for that matter, between MCS and REO), and it appears clear that a disputed issue of fact exists. A specific enumeration of that evidence will not be provided, other than to refer to the unusually extensive and painstakingly detailed set of mandates, rules, standards, aids, and other written guidelines contained in the Mortgage Services Agreement, Field Services Agreement, and associated documents, including the " Property Preservation" manual issued to MCS by Wells Fargo, as well as those processes identified in the depositions of Wells Fargo, MCS and REO witnesses. As stated by Judge David Sheridan in a decision denying summary judgment to the " upstream" defendants on a claim of trespass arising out of a sub-contractor’s botched property-preservation activities: " Within the intricate chain of contracts, communications and authorizations leading up to and following the physical entry at the [plaintiffs’] property are multiple, genuine issues of material fact as to whether the moving defendants commanded, instigated, promoted, encouraged, advised, countenanced, cooperated in, aided or abetted the entry ..." Mendez v. JPMorgan Chase Bank, X 04HHD-CV-146049524-S, 2016 WL 402008, at *5 (Superior Court, January 8, 2016). See also, Lougee Conservancy v. CitiMortgage Inc., 48 A.3d 774, 780 (S.J.C. Me. 2012) (reversing summary judgment ruling in favor of lender, and holding that whether agency relationship existed between lender and its property preservation contractor was for jury to decide).
The court seeks to avoid two difficulties associated with an itemized review of the specific evidence supporting its conclusion. First, many hours of work were necessary to review the evidence for purposes of arriving at the conclusion reached by the court. That time was well spent. But apart from furnishing evidence of labor, it would serve no useful purpose now to take the additional time (measured in days) to organize that material in written form for re-presentation to the parties in this memorandum. Resources are scarce and time is at a premium. Second, a good deal of evidence supplied by the parties was taken into account by the court in reaching its conclusions regarding the issue of agency, and much of that evidence is found in bits or pieces scattered throughout the record, in written agreements, directives, deposition transcripts, etc. It is inevitable that significant material would be omitted from the court’s written enumeration, thus creating potential confusion in subsequent proceedings about the scope and meaning of the court’s ruling.
Judge Sheridan’s observation, quoted above, was expressed in the particular context of a trespass claim, not as a general holding regarding the existence of an agency relationship, but his description of the " intricate" chain of contracts and communications under similar circumstances certainly resonates here. The same decision also goes on to deny summary judgment on the ground that a jury issue existed in that case regarding the existence of an agency relationship. Id. at *6.
Wells Fargo insists that it did not retain the level of control over MCS necessary to incur liability for MCS’s negligent performance of property preservation activities, and points to the " discretion" given to MCS under the various documents referenced in the preceding paragraph. The court disagrees that the issue can be decided as a matter of law on this record. A jury could reasonably conclude that the level of control retained by Wells Fargo was sufficient to establish an agency relationship. This is particularly true here, because it is not clear to the court that MCS did, in fact, have any " discretion" to order the preservation activities that were undertaken at plaintiff’s property. Wells Fargo acknowledges that the Norboe matter was in active loss mitigation at the time of the first two entries (May 31, 2011 and June 6, 2011), and maintains that MCS therefore should never have ordered either such entry. A jury might readily find that Wells Fargo rather than MCS was in the best position to prevent those entries. Wells Fargo knew not only that its own rules prohibited preservation activities during the foreclosure mediation; it also knew that it was, in fact, in the midst of such a mediation with plaintiff during the relevant time period (May and June of 2011)- Wells Fargo was a party to the mediation, after all. Yet evidently Wells Fargo did not notify MCS of the need to stop all preservation activity, at least not until it was too late. Under these circumstances, a jury could find that Wells Fargo was obligated to take the necessary steps to ensure that its contractor(s) did not enter plaintiff’s premises. Cf. Restatement (Second) Torts § 413.
Section 413 provides:
Second, even if Wells Fargo were found to have possessed insufficient " control" over MCS to establish an agency relationship, liability may nonetheless be imposed on a party in Wells Fargo’s position due to the particular nature of the activity at issue. On this record, for example, a jury reasonably might conclude that Wells Fargo knew or should have known that the " property preservation" activities at plaintiff’s home were likely to involve a trespass on plaintiff’s property. Such a finding would warrant imposition of vicarious liability on Wells Fargo for the actions of independent contractors carrying out preservation activities on its behalf. See Restatement (Second) Torts, supra, § 427B (" One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another ... is subject to liability for harm resulting to others from such trespass" ); Halkiotis v. WMC Mortgage Corp., 144 F.Supp.3d 341, 364 (D.Conn. 2015) (relying on Restatement § 427B to deny summary judgment on trespass claim under analogous circumstances). See also n.9 above (regarding Restatement § 413).
Third, and alternatively, it remains an open question on this record whether Wells Fargo could be held liable to plaintiff under the " nondelegable duty" doctrine.
It is a well established general principle of tort law that an employer is not liable for the negligence of its independent contractor. There are, however, many exceptions to that general rule. One such exception arises from the nondelegable duty doctrine ... The nondelegable duty doctrine means that the employer may contract out the performance of its nondelegable duty, but may not contract out its ultimate legal responsibility.Sola v. Wal-Mart Stores, Inc., 152 Conn.App. 732, 742-43, 100 A.3d 864, cert. denied, 314 Conn. 941, 103 A.3d 165 (2014) (footnote, internal quotation marks, citations, and brackets omitted). The nondelegable duty doctrine is invoked most frequently in premises-liability cases of one type or another, see, e.g., Machado v. City of Hartford, 292 Conn. 364, 371-72 (2009) (municipality has nondelegable duty to maintain its roads under § 13a-99, and cannot contract out of liability under § 13a-149); Gazo v. City of Stamford, 255 Conn. 245, 255-57 (2001) (property owner’s duty to remove snow), but there is no principled reason that its reach is limited to that context. See, e.g., Allen v. Hamden Plains Cemetery Ass’n, No. CV- 095031784S, 2015 WL 3652242, * (J.D. New Haven, May 19, 2015) (Blue, J., applying doctrine in lawsuit against a cemetery association for negligence in a burial performed by independent contractor). It remains unclear at this time precisely how the nondelegable duty doctrine would apply in the present context under Connecticut law.
The Restatement (Second) of Torts does not answer this question. It expressly mentions the nondelegable duty doctrine in its introductory overview of the various exceptions to the general rule of non-liability for the actions of independent contractors. See Restatement (Second) Torts, Ch. 15, Topic 1: Introductory Note, at 372 (1965). That reference could be understood to mean that the Restatement intends its enumeration of exceptions (contained in § 410 through § 429, or at least § 416 through § 425, see id. ), to be exhaustive, that is, to include all exceptions falling within the rubric of " nondelegable" duties. This seems unlikely, however, because the Restatement acknowledges that " [t]he exceptions have developed, and have tended to be stated, very largely as particular detailed rules for particular situations, which are difficult to list completely ..." Id., § 409, comment b, at 371. Moreover, the nondelegable duty doctrine is policy driven, see text following this footnote, and, as such, must by its nature remain open-ended to address new situations as social relations and corresponding conceptions of duty change over time.
The Supreme Court has described the doctrine this way:
Nondelegable duties generally are imposed, most often by statute, contract or common law, in recognition of " the policy judgment that certain obligations are of such importance that employers should not be able to escape merely by hiring others to perform them." 41 Am.Jur.2d, Independent Contractors § 43, p. 518 (2005). In such circumstances, " the nondelegable duty doctrine means that [the employer] may contract out the performance of [its] nondelegable duty, but may not contract out [its] ultimate legal responsibility." (Emphasis in original.) Gazo v. Stamford, supra, at 255. Thus, the non-delegable duty doctrine creates a form of vicarious liability, whereby the employer remains vicariously liable for the negligence of its independent contractors in their performance of the employer’s nondelegable duty. Id., at 255-56.Machado v. City of Hartford, 292 Conn. at 371-72.
Because its contours are defined by policy considerations, it is no easy task for a trial court to determine whether the obligations at issue fall within its scope in any specific case- here, involving a mortgagor’s duty to a homeowner-mortgagee to undertake property preservation activities in a non-negligent manner. It is not necessary to decide the issue now as a formal matter, because summary judgment has been denied (with respect to the independent contractor issue) on the separate and independent grounds set forth above at pp. 5-9. In addition, the nondelegation issue has not been briefed adequately by the parties. The ultimate question, in the language of Machado, is whether the obligations involved in " property preservation activities" are of such importance that mortgagees should not be able to escape liability merely by hiring others to perform them. Although the court has not reached any definitive conclusion on the issue, it is easy to see why the duty may be deemed nondelegable in the present context. A person’s home is that person’s castle, and it is no small thing for an outsider to break down the door of a private residence. This idea is so fundamental to the principles we live by that it is enshrined in the Fourth Amendment to the federal constitution and Article First, Section 7 of the state constitution. These constitutional protections of course apply only against the government, but the law is no less (indeed, it is more) protective of a person’s right to exclude non-governmental actors- such as defendants here- from entering a private home. Numerous criminal and civil statutes, as well as various common-law doctrines relating to trespass and privacy, have long existed prohibiting transgressions of these principles, punishing transgressors, and compensating (sometimes with double damages) those whose physical space has been violated.
If the issue had been raised earlier in the case, the court would have ordered supplemental briefing prior to deciding the summary judgment motion.
" A [person] can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty- worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place- which is a [person’s] castle." United States v. On Lee, 193 F.2d 306, 315-16 (2d Cir. 1951) (Frank, J., dissenting), aff’d, 343 U.S. 747 (1952).
Nor are mortgagors exempt from these principles. A Connecticut homeowner who falls behind on his mortgage, even to the point of default, does not forfeit his right to exclusive possession at the whim of the lender. Mortgagors in Connecticut hold an ownership interest in the borrower’s property to secure their loan. But the mortgagee has no possessory interest in the property, at least not until a court of law so orders, and self-help is forbidden in this context as in any other comparable context involving real property. See, e.g., C.G.S. § 49-22 (providing judicial procedure for mortgagee to obtain possession of property after judgment of foreclosure); 1 D. Caron and G. Milne, Connecticut Foreclosures § 10-4, at 593 (6th ed. 2015) (" Although the recording of the certificate of foreclosure, or the satisfaction of judgment file, evidences the transfer of title to either the plaintiff or redeeming encumbrancer respectively, that act alone does not also give rise to a right of possession" ). Indeed, even a landlord- whose ownership interest in the demised property is legally superior to the ownership interest held by a secured lender in mortgaged property- is prohibited from engaging in the type of self-help under consideration here. See, e.g., C.G.S. § 47a-43 et seq.; Dadonna v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58 (1988) (discussing deep historical roots in Connecticut of prohibitions against self-help in landlord/tenant context). If a delinquent mortgage payment were enough to expose the homeowner to unregulated " self-help" remedial measures at the hands of judgment-proof individuals retained as " independent contractors by any mortgagee sophisticated enough to insulate itself from liability by delegating the dirty work to non-employees, then the " American Dream" of home ownership, and all that it entails, truly is beyond the reach of most Americans.
The court’s research indicates that approximately 63% of homes in this country are mortgaged. See Joint Center for Housing Studies at Harvard University, The State of the Nation’s Housing 2017 23 (reporting that only 36.7% of homeowners owned their homes outright based on 2015 data); Wei Li and Laurie Goodman, How Much House Do Americans Really Own? 13, Table 1.A (Urban Institute, Housing Finance Policy Center, July 2016) (showing that of 73.3 million total owner-occupied housing units, approximately 46.6 million, or about 63.5%, were burdened by mortgages or equity loans, and approximately 26.9 million were owned free and clear), available at www.urban.org/sites/default/files/publication/82556/2016.07.13MeasuringÄmerican.sNetHousinglth_final4.pdf.
These observations are intended to illustrate why the court would not now grant summary judgment on Wells Fargo’s " independent contractor" theory even if Wells Fargo had overcome the first two grounds for denying summary judgment (see pp. 5-9 above). Again, no formal decision can be reached regarding the nondelegation issue without further briefing.
It is possible that resolution of this legal issue can be reserved until during or after trial. Or. it may be unnecessary to decide the issue at all. These determinations presumably will be made by the trial judge.
This still leaves the issue of whether Wells Fargo can be held liable for the intentional wrongdoing of Messrs. Sprague and Hopkins, the two individuals who stole plaintiff’s personal property on August 29, 2011. See Wells Fargo’s Memorandum in Support of Summary Judgment at pp. 16-19 (# 257.00), Wells Fargo’s Reply Brief at pp. 4-5 (# 302.00). At the outset, it is useful to identify which counts of the complaint fall into this category. The task is not as easy as it should be, unfortunately. Plaintiff has abandoned its claims for conversion and statutory theft against REO and MCS. No similar concession is made with respect to the claims of conversion and theft against Wells Fargo (the Second and Third Counts, respectively). It is not entirely clear why plaintiff has proceeded in this manner, but Wells Fargo has not suggested that the abandonment of these claims against REO and MCS precludes plaintiff from pursuing the claims against it alone.
It also does not appear that the claims of intentional infliction of emotional distress against Wells Fargo- the Fifth Count- is included within the scope of this particular argument in favor of summary judgment, except perhaps to the extent that the conversion and statutory theft counts are incorporated by reference into the intentional infliction counts. The intentional infliction count is addressed at pp. 23-24 below.
Notwithstanding the general rule of non-liability in this context, see A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. at 208, plaintiff contends that Wells Fargo may be held liable for the intentional torts of Sprague and Hopkins on the ground that " a master is liable for the wilful torts of his servant [if those torts are] committed within the scope of the servant’s employment and in furtherance of his master’s business." Cornelius v. Dep’t of Banking, 94 Conn.App. 547, 557 (2006). The proposition is correct as far as it goes, but it does not go far enough under the circumstances of this case.
Plaintiff is correct that the rule of non-liability in this context is not absolute. " An [agent’s] act may be within the scope of employment although consciously criminal or tortious." Restatement (Second) Agency § 231 (1958). This exception is recognized in Connecticut in various cases upholding claims of vicarious liability against a principal based on the agent’s intentional wrongdoing. See Glucksman v. Walters, 38 Conn.App. 140, 144-48 (1995) (collecting and discussing cases). The exception, however, has never been allowed to swallow the rule, see A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. at 208; 2 Nat. Place, LLC v. Reiner, 152 Conn.App. 544, 557-59 (2014); Gutierrez v. Thorne, 13 Conn.App. 493, 499-500 (1988), and such claims are allowed to go forward only in exceptional cases, like Glucksman, in which a plausible argument can be made that the wrongful conduct was undertaken, at least in part, in furtherance of the affairs of the principal.
On this record, no fact-finder reasonably could conclude that Sprague or Hopkins were serving the business interests of Wells Fargo, MCS, or anyone else, when the men stole plaintiff’s personal property from his home. No doubt their job status provided them with unsupervised access to plaintiff’s property. But a principal does not incur vicarious liability for the intentional misconduct of its agent merely because an unscrupulous agent discovers that his work assignment facilitates the easy commission of a crime. The court has located numerous cases from around the country rejecting vicarious liability claims under analogous circumstances. See, e.g., Brown-Spurgeon v. Paul Davis Systems of Tri-State Area, Inc., No. CA 2012-09-069, 2013 WL 1883214, *3-*4 (Ohio App. May 6, 2013) (no vicarious liability for theft by home restoration subcontractor’s employee of personal property worth $18,000 taken from customer’s home); Schloss v. Sears Roebuck & Co., No. Civ.A. 04-CV-2423, 2005 WL 433316, *2 (E.D.Pa. Feb. 24, 2005) (no vicarious liability for alleged theft of earrings by appliance repair technician on house call); Starr v. Leininger, 198 Ill.App.3d 622, 623-24, 556 N.E.2d 266, 267-68 (Ct.App. 1990) (no vicarious liability for theft of ring allegedly stolen by nursing home employee from room of elderly patient); Gotthelf v. Property Management Systems, Inc., 189 N.J.Super. 237, 240-41, 459 A.2d 1198, 1199-1201 (App.Div.) (no vicarious liability for theft of personal property allegedly stolen by defendant’s employees from apartments in building managed by defendant), cert. denied, 95 N.J. 219, 470 A.2d 435 (Sup.Ct. 1983). No cases have been brought to the court’s attention in which vicarious liability is imposed on facts anything like those in the present case.
Summary judgment is granted in favor of Wells Fargo on the Second and Third Counts.
B. Wells Fargo’s Other Arguments For Summary Judgment
1. First Count (Trespass)
Wells Fargo argues that it could not have committed a trespass in connection with the property preservation activities conducted by the other defendants, because plaintiff signed a mortgage giving Wells Fargo express authorization to enter the property for the purpose of engaging in such activities when he took out his loan. This argument relies on the following underscored language contained in paragraph 9 of the mortgage:
9. Protection of Lender’s Interest in the Property and rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument ; (b) there is a legal proceeding that might significantly affect Lender’s interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or regulations; or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the property ... Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off .
Wells Fargo construes paragraph 9(a) to mean that if plaintiff fails to make his loan payments when due, then the lender has carte blanche to enter plaintiff’s home, change his locks, shut off his electricity, and take any other steps it deems desirable to preserve its security. In response to plaintiff’s claim that the provision authorizes preservation activities only to the extent that such activities are " reasonable or appropriate," Wells Fargo argues that the " reasonable or appropriate" is not a term of limitation, but the opposite: the language deems preservation activities to be among those actions that are automatically reasonable and appropriate if the borrower is in default. If the borrower is in default, in short, the lender is contractually entitled to enter the property to make repairs, change locks, board up doors, and the rest.
As a fall-back position, Wells Fargo contends that the preservation activities were justified under paragraph 9(c), because plaintiff had abandoned the property. In the court’s view, the abandonment claim is not easy to maintain on this record, and certainly cannot be resolved in Wells Fargo’s favor on summary judgment.
The court rejects Wells Fargo’s construction of the mortgage as implausible and contrary to common sense. The fact that a borrower falls behind on his mortgage payments cannot, by itself, justify the lender’s unannounced physical intrusion into the borrower’s home. Wells Fargo assured the court at oral argument that it would not actually take any such aggressive steps absent good cause, but it insists that it has the contractual right to do so once a borrower misses a payment, because the borrower has consented to that activity as a condition of obtaining the loan. This construction cannot be correct.
The basic rules of construction are well-settled:
A contract must be construed to effectuate the intent of parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] ... Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party’s subjective perception of the terms. If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law ... When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.Connecticut Nat. Bank v. Rehab Assocs., 300 Conn. 314, 318-19 (2011) (internal citations and quotation marks omitted).
Common sense is part of the interpretive process:
The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the agreement. If the terms of the contract are fairly susceptible of two or more interpretations, the one which is the more equitable, reasonable and rational is to be preferred.Lanna v. Greene, 175 Conn. 453, 458-59 (1978). So, too, is the implied covenant of good faith. See, e.g., Geysen v. Securitas Sec. Servs. USA, Inc., 322 Conn. 385, 399 (2016), quoting Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567 (1984). (" Essentially [the implied covenant of good faith and fair dealing] is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." )
Resort to the " implied covenant of good faith," of course, must not be permitted to vary the express terms of the contract, or prevent a party from enforcing its bargained-for contractual rights. See Eis v. Meyer, 213 Conn. 29, 36-37 (1989).
The court finds plaintiff’s reading of the mortgage substantially more plausible than the construction proposed by Wells Fargo. Once reason and common sense enter the analysis, it really is not a close call in the court’s view, for the reasons adumbrated above. Even if any interpretive doubt were to remain at the end of the standard analysis, the court would resolve the issue in plaintiff’s favor under the rule of contra proferentem. See e.g., Cruz v. Visual Perceptions, L.L.C., 311 Conn. 93, 107-08 (2014); DiNardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp., 153 Conn.App. 10, 34-35 (2014). The important point for present purposes is that the court disagrees with Wells Fargo’s argument that there is clear, unambiguous and definitive language in paragraph nine of the mortgage that gave Wells Fargo the unrestricted right to enter plaintiff’s home upon default.
In Wells Fargo’s defense, there appear to be a few courts that have adopted an absolutist construction of comparable mortgage provisions in other property preservation cases involving other lenders. See, e.g., PNC Bank, N.A. v. Van Hoornaar, 44 F.Supp.3d 846, 855-57 (E.D.Wis. 2014). The court has read those decisions and finds them unpersuasive with respect to the issue at hand. The court notes that the present case does not involve a lender seeking to preserve property that is obviously abandoned and falling into disrepair.
The motion for summary judgment is denied as to the First Count.
2. Fourth and Fifth Counts (Negligent and Intentional Infliction of Emotional Distress).
Plaintiff’s emotional distress claims are not peripheral to his case. His lawsuit is premised to a significant degree on his allegation that defendants’ persistent and intrusive entries into his home caused great distress to him due, in significant part, to his fragile emotional and psychological condition. Plaintiff has suffered from Tourette Syndrome and obsessive-compulsive disorder since childhood, and also has a rare blood disorder that is aggravated by stress. Although plaintiff in the past found relief for his various afflictions through medication and other therapeutic modalities, and has had a rewarding life in many ways, these various health conditions never disappeared entirely, and inevitably bear upon his claims in this case. Norboe has presented evidence that the three " break-ins" during 2011 resulted in significant deterioration of his emotional and psychological condition, and also caused damage to his physical health in the form of skin blistering and other physical manifestations of illness. To be clear, plaintiff does not contend that his emotional distress was unforeseeable, but he does seek damages for traumatic effects that were magnified substantially as a result of his pre-existing medical conditions.
As medical knowledge advances, the clean distinction between a person’s mental and physical condition becomes increasingly blurred. The categories remain important and useful, but they are by now understood to be permeable- in both directions. This is not breaking news; the law has long understood that emotional distress can cause physical harm. See, e.g., Urban v. Hartford, 139 Conn. 301, 303 (1952) (permitting claim for emotional distress where defendant’s allegedly negligent repossession of a home appliance caused plaintiff to suffer emotional distress which, in turn, lit up her arrested diabetic condition).
Wells Fargo argues that plaintiff’s claims for infliction of emotional distress fail as a matter of law because " Connecticut recognizes no cause of action for emotional distress resulting [solely] from injury to property ..." Wells Fargo’s Memorandum of Law in Support of Summary Judgment, dated May 30, 2017, at 23. Wells Fargo cites numerous cases in support of that proposition, including Costello v. Yale New Haven Hospital, 161 Conn.App. 600 (2015) (per curiam) (affirming Costello v. Yale New Haven Hospital, No. CV 13603232, 57 Conn.L.Rptr. 291, 2013 WL 6978818, at *3-*4 (J.D. Fairfield, Dec. 13, 2013) (striking intentional and negligent infliction of emotional distress claims based on hospital’s alleged loss of rings owned by plaintiffs’ deceased mother) ); Myers v. City of Hartford, 84 Conn.App. 395, 402-03 (2004) (affirming directed verdict in favor of municipal-employee defendants on claims for intentional and negligent infliction of emotional distress based on euthanasia of plaintiff’s pet dog), and a substantial line of superior court decisions holding broadly that emotional distress damages arising solely from lost or damaged property are not recoverable in Connecticut, see, e.g., Henderson v. Ripka, No. CV 166072393, 2017 WL 5923341, at *1-*2 (J.D. Hartford, Oct. 30, 2017) (striking claim for relief seeking damages for emotional distress arising from collision damage to plaintiff’s automobile); Vaccaro v. U.S. Bank, N.A., No. 146050373, 2016 WL 8488123, at *7 (J.D. New Haven, Nov. 8, 2016) (striking intentional infliction of emotional distress claim based on allegations of defendants’ allegedly wrongful actions in connection with foreclosure litigation; citing additional cases); Costello v. Yale New Haven Hospital, supra, 2013 WL 6978818, at *3-*4; Fasano v. Caprio, No. CV 106014443, 2011 WL 3199365, at *3-*4 (J.D. New Haven, June 28, 2011) (striking claim for negligent infliction of emotional distress based on claim involving theft of personal property); Gorcenski v. Home Selling Team, LLC, No. CV 075001872, 2007 WL 4754820, at *1-*2 (J.D. Tolland, Dec. 20, 2007) (striking allegation seeking damages for emotional distress arising from real estate broker’s negligence and misrepresentations in his role procuring tenants for plaintiff).
Wells Fargo accurately summarizes the holdings of the foregoing cases, and correctly observes that many of these cases contain broad language stating, without qualification, that Connecticut courts do not recognize a cause of action for intentional or negligent infliction of emotional distress for loss of, or damage to, property. See, e.g., Vaccaro v. U.S. Bank, N.A., supra, 2016 WL 8488123, at *7 (" ‘Every Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property ... has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property’ " ), quoting Goldstein v. Rapp, No. CV- 104010224, 50 Conn.L.Rptr. 779 (J.D. New London, October 15, 2010); Gorcenski v Home Selling Team, LLC, supra, 2007 WL 4754820, at *2 (" Economic damage, standing alone, generates no compensable claim for negligent infliction of emotional distress" ).
These broad statements misconstrue the applicable law. The rule against recovery in this context is not a categorical one. In claims of negligent infliction of emotional distress, the unavailability of emotional distress damages based solely on property damage or economic loss is the result of the limitations on recovery imposed by the heightened foreseeability requirement applicable to such a claim. As one court has explained, " ‘[w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm.’ " Duffy v. Town of Wallingford, 49 Conn.Supp. 109, 122 (J.D. New Haven, Nov. 1, 2004), quoting Early v. Derby Neck Library, No. CV- 000072405, 30 Conn.L.Rptr. 450 (J.D. Ansonia-Milford, Sept. 27, 2001). But it simply is not always true that emotional distress are unavailable, as a matter of law, in all cases involving only property damage, property loss, or economic loss.
A claim for negligent infliction of emotional distress requires plaintiff to plead and prove, among other things, that the defendant’s conduct created a foreseeable risk that plaintiff would suffer emotional distress of a nature or degree that might result in illness or bodily harm. See, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 433 (2003) (to state claim for negligent infliction of emotional distress, plaintiff must prove " that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm" ) (emphasis added); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978) (same).
This precise point receives attention in numerous Supreme Court cases emphasizing the unusually strict nature of the foreseeability inquiry applicable to negligent infliction claims:
In Montinieri v. Southern New England Telephone Co., 175 Conn. 337 (1978), we, held that, in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that " the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." Id., at 345. We repeatedly have endorsed this requirement of foreseeability. E.g., Parsons v. United Technologies Corp., 243 Conn. 66, 88 (1997); Barrett v. Danbury Hospital, 232 Conn. 242, 260 (1995); Kilduff v. Adams, Inc., 219 Conn. 314, 325 (1991); Maloney v. Conroy, 208 Conn. 392, 398 (1988); Morris v. Hartford Courant Co., 200 Conn. 676, 683 (1986). As we previously have observed, " [t]his condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even [when] a breach of duty might otherwise be found ..." Maloney v. Conroy, supra, at 398.Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446-47 (2001).
Indeed, we can be certain that emotional distress claims are not per se precluded in cases based solely on property loss, property damage, or economic loss because Scanlon (and numerous other Supreme Court cases, including cases cited in the above passage) unquestionably authorize the award of emotional distress damages in such cases, i.e., in lawsuits arising out of wrongful conduct directly implicating property interests only. Scanlon, for example, was a negligence suit brought by a dairy farmer and his wife against an electric utility company for economic damages and emotional distress caused by the negligent installation and maintenance of electrical equipment, which allegedly leaked stray voltage resulting in substantial harm to plaintiffs’ cows, and, consequently, plaintiffs’ dairy business. See 258 Conn. at 440-41. Plaintiffs claimed to have sustained not only substantial property damage and financial losses, but also severe psychological distress and emotional trauma, including harm to their own marriage owing to the severe damage to their business occasioned by the electrical malfunction. Id. The Supreme Court reversed a jury award of $300,000 for negligent infliction of emotional distress, but only because the jury instruction was faulty. Id. at 448-49, 452. The case was remanded for a new trial on plaintiffs’ claim of negligent infliction of emotional distress. Id. at 452.
There are of course differences between these types of harm, and sometimes the difference matters. See, e.g., Williams Ford, Inc. v. Hartford Courant Company, 232 Conn. 559, 582 (1995) (noting distinction between property damage commercial loss under comparative negligence statute); PMI Shares, Inc. v. SIMA Intl., Inc., No. LLI-CV166013981S, 2017 WL 1484035, at *8 (Conn.Super.Ct. Apr. 3, 2017) (explaining importance of distinction between commercial loss and property damage for purposes of economic loss doctrine in cases where negligence claim is intertwined with breach of contract claim). No argument is made that it matters here.
A number of other Connecticut cases make it very clear that emotional distress damages can be awarded in cases that do not involve personal injuries. See, e.g., Kilduff v. Adams, Inc., 219 Conn. 314, 323-26 (1991) (allowing recovery of damages for emotional distress in action based on fraud); Buckman v. People Express, Inc., 205 Conn. 166, 173-74 (1987) (allowing claim for emotional distress arising from defendant’s failure to enable plaintiff to continue insurance coverage); Morris v. Hartford Courant Co., 200 Conn. 676, 681-82 (1986) (recognizing cause of action for infliction of emotional distress based on unreasonable conduct by employer in discharging employee); Olson v. Bristol-Burlington Health District, 89 Conn.App. 1, 5-6 (2005) (reversing trial court’s dismissal of infliction of emotional distress claim in employment termination context); Urban v. Hartford, supra, 139 Conn. at 306-07 (reversing trial court’s dismissal of emotional distress claim arising out of wrongful attempt to repossess water heater for non-payment).
Wells Fargo’s misapprehension of the law is understandable in light of the two Appellate Court decisions it cites, Myers v. Hartford, supra, and Costello v. Yale-New Haven Health Services Corporation, supra. Wells Fargo concedes that neither case is dispositive here, see Wells Fargo’s Memorandum of Law, at 24 (quoting from 2016 superior court decision stating that " there is no direct appellate authority" precisely on point), but both cases certainly contain language that could lead to the wrong conclusion here. Myers affirms a directed verdict in defendants’ favor in a lawsuit claiming emotional distress damages arising from the wrongful euthanasia of plaintiffs’ pet dog. See 84 Conn.App. at 402-03. The opinion states that " there is no common-law authority in this state that allows plaintiffs to recover non-economic damages resulting from defendants’ alleged negligent or intentional act resulting in the death of a pet, nor does the plaintiff refer us to any." Id. at 402. Interestingly, the analysis finds " most significant[ ]" the fact that emotional distress claims are not allowed for the loss of a child or spouse, except when the bereaved is a bystander, and reasons, a fortiori, it makes no sense to permit such damages for the loss of a pet. Id. at 403. There is no reference made to the Supreme Court cases, cited above, involving property damage or financial loss.
The other Appellate Court case, Costello, is a per curiam decision affirming the trial court’s rejection of an emotional distress claim brought by the children of a woman whose rings allegedly were lost by the defendant hospital at some point during her last hospitalization. See 161 Conn.App. 600. The Appellate Court disposes of the emotional distress claim in a single footnoted sentence: " The present case falls within the general rule disallowing such claims. See Myers v. Hartford, 84 Conn.App. 395, 402, cert. denied, 271 Conn. 927 (2004)." Id. at 604 n.2. The trial court opinion in Costello, approved as " well reasoned" by the Appellate Court, emphasized that the property at issue in that case was not owned by plaintiffs, but by their mother. See. Costello v. Yale New Haven Hospital, supra, 2013 WL 6978818, at *5 (" [Plaintiffs’] argument overlooks the undisputed fact that the property in question belonged not to the plaintiffs but to a third party. As owner of the jewelry, only the decedent, or her estate, has the right to any claim related to either monetary or sentimental value of the property" ).
Three points can be derived from the foregoing discussion with respect to Wells Fargo’s motion for summary judgment on the claim for negligent infliction of emotional distress:
First, it simply cannot be said that wrongful conduct causing " mere" property damage or property loss, or commercial loss, standing alone, is insufficient standing alone to support a claim for negligent infliction of emotional distress under Connecticut law. More than a few Supreme Court cases, cited above, demonstrate the error in such a broad proposition. The entire point of the doctrine permitting recovery for emotional distress under these circumstances, after all, is to recognize a protectable legal " interest in one’s peace of mind" by allowing a plaintiff, under limited circumstances, to recover damages for emotional distress in situations where there is no direct insult to plaintiff’s bodily integrity, or even any " ensuing physical injury." Montinieri, supra, 175 Conn. at 345.
Second, although there are two Appellate Court decisions (Myers and Costello ) that could lead one to the opposite conclusion, those cases, read narrowly, are not at war with the controlling Supreme Court precedent. The holding in Myers seems to be driven by the case law on bystander emotional distress, and reasons that because the law generally prohibits recovery for loss of a spouse or child caused by negligence (except in the special case of a bystander plaintiff), it follows that recovery is not allowed for emotional distress damages arising from the loss of a pet animal. See Meyers, supra, 84 Conn.App. at 403 (" Because our common law has not extended the right to sue for damages for the deprivation of such close human relationships when the plaintiff has not witnessed the fatal injury, it would ’be incongruous to extend it to emotional distress resulting to a person for the loss of a pet" ). No reference is made to the entirely separate line of Supreme Court Cases such as Scanlon, Kilduff, Buckman, Morris, Montinieri or Urban . Likewise, Costello holds only that a plaintiff cannot sue for emotional distress caused by the loss of someone else’s property.
Third, to the extent that some of the superior court decisions express concern about opening the floodgates to unchecked awards for trivial claims involving hurt feelings, it is important to recognize that this legitimate policy consideration is already taken into account by the substantive doctrine governing emotional distress claims, which requires plaintiffs to meet demanding liability standards indeed. See, e.g., Montinieri, supra, 175 Conn. at 345 (establishing high liability threshold in emotional distress cases based in part on concern that doctrine " must not open up wide vista of litigation ion the field of bad manners ..." ). This explains, for example, why the heightened foreseeability standard applicable to these claims " differ from the standard, foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely on the nature of the harm to be anticipated as a prerequisite to recovery ..." Id. at 398. As noted, the heightened foreseeability standard requires proof that " the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Scanlon, supra, 258 Conn. at 447 (internal quotation marks and citation omitted).
On this record, the court believes that plaintiff presents a viable claim for negligent infliction of emotional distress against Wells Fargo. Wells Fargo’s " mere property" argument cannot be sustained. Wells Fargo, in passing, also challenges the sufficiency of plaintiff’s negligent infliction claim under the standard four-factor analysis applicable to such claims, but this argument is unelaborated and unpersuasive. A jury issue is presented with respect to each of the four elements of the cause of action. See, e.g., Riley v. Travelers Home and Marine Insurance Co., 173 Conn.App. 422, 431 (2017).
As for plaintiff’s claim of intentional infliction of emotional distress, Wells Fargo’s per se argument based on its " mere property" theory is rejected for the same reasons stated above, in connection with plaintiff’s negligent infliction claim. The court cannot identify a principled distinction that would permit recovery of emotional distress damages for a direct violation of a plaintiff’s bodily integrity but not other vital interests, such as the integrity of one’s private home. Likewise, the policy arguments in favor of strict limits on recovery in this context, though by no means frivolous, are addressed by limitations built into the doctrine itself; recovery for intentional infliction of emotional distress is available only to a plaintiff capable of scaling high fortress walls.
Whether plaintiff’s claim can survive summary judgment on the merits of the intentional infliction claim is a different question. The four-part liability analysis is well-established. In order to make out a claim for intentional infliction of emotional distress, a plaintiff must show:
(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. 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.Appleton v. Bd. Of Educ. of Town of Stonington, 254 Conn. 205, 210 (2000) (internal quotation marks and citations omitted).
It is the second factor that gives the court pause. To some degree, outrageous conduct is in the eye of the beholder. Every day in our political and social life, we see evidence that one person’s vulgarity is another’s lyric. See Cohen v. California, 403 U.S. 15, 25 (1971). This adage was coined by Justice Harlan in the first amendment context, but it could equally be said, at least sometimes, in the realm of pure conduct, and " outrageousness" could be substituted for " vulgarity" without undermining the point. What seems outrageous to some is praiseworthy, or acceptable, or at worst of trivial significance, in the estimation of others. Nor can " reason" always be called upon to settle the dispute.
This is hardly the first case to raise difficulty in this regard, and Connecticut case law provides some assistance for courts deciding whether a particular set of facts could reasonably satisfy the " outrageousness" standard in lawsuits alleging intentional infliction of emotional distress:
Liability for intentional infliction of emotional distress requires conduct that exceeds " all bounds usually tolerated by decent society ..." Petyan v. Ellis, 200 Conn. [243,] 254 n.5 [ (1986) ], quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. " 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ 1 Restatement (Second), Torts § 46, comment (d) p. 73 (1965). " Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon the intentional infliction of emotional distress." Mellaly v. Eastman Kodak Co., 42 Conn.Supp. 17, 19 (1991).Appleton v. Bd. Of Educ. of Town of Stonington, supra, 254 Conn. at 210.
Even when viewed in the light most favorable to plaintiff, the court does not believe that the conduct of Wells Fargo (or the other entity defendants) in this case was situated " beyond all possible bounds of decency." The conduct may reflect a level of bureaucratic incompetence or indifference that could be perceived by some as grossly irresponsible. A reasonable jury could conclude that Wells Fargo did not have proper controls in place, that its right hand (i.e., its agents with knowledge of the particular facts and circumstances relating to the status of the foreclosure case and plaintiff’s status) did not know what its left hand (i.e., those agents with responsibility for coordinating and communicating with MCS and its sub-contractors) was doing, and that the corporate entity known as, " Wells Fargo Bank" thoroughly bungled its handling of property preservation activities in connection with plaintiff’s mortgage. But this bureaucratic incompetence alone does not reach the level of " extreme and outrageous" conduct necessary to establish a claim for intentional infliction of emotional distress under Connecticut law.
Summary judgment is denied on the Fourth Count, and granted on the Fifth Count.
3. Sixth Count (CUTPA)
Wells Fargo’s argument regarding the " ascertainable loss" requirement under CUTPA has already been addressed. See pp. 3-4 above. Its remaining argument is that the conduct of (or fairly attributable to) Wells Fargo does not give rise to liability under CUTPA as a matter of law under the so-called " cigarette rule." See, e.g., Landmark Inv. Group, LLC v. CALCO Const. And Development Co., 318 Conn. 847, 867 (2015). The court disagrees.
Again, this is a motion for summary judgment. Viewing the record in that light, the court finds that a jury could reasonably conclude that Wells Fargo’s acts and omissions violate CUTPA. See, e.g., Mendez v. JPMorgan Chase Bank, supra, 2016 WL 402008, at *9 (denying summary judgment under CUTPA in " property preservation" case). This case involves more than a " mere" breach of contract or " garden-variety" negligence. The evidence, viewed most favorably to plaintiff, establishes a disturbing pattern of disregard and even indifference with respect to fundamental rights of privacy and home ownership protected by well-established public policy. See above at pp. 10-12 (discussing these policies, including the general prohibition against self-help in residential property disputes). A reasonable juror could find that this was not an isolated instance involving a single episode of momentary neglect, but rather a consummation of protracted, obdurate indifference to the rights of a homeowner-in-possession.
Summary judgment is denied on the Sixth Count.
4. Seventh Count (Breach of Contract)
The thrust of plaintiff’s breach of contract claim is that Wells Fargo breached its duty to act in a " reasonable and appropriate" manner in its property preservation activities. See above at pp. 14-17 (discussing paragraph nine of the mortgage). Wells Fargo responds that plaintiff cannot maintain a claim for breach of contract when he is in breach himself (for non-payment). Wells Fargo’s statement of the general rule is correct, see, Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437 (1947), but the doctrine does not relieve Wells Fargo of its obligation to conduct its property preservation activities in accordance with its contractual duties. Indeed, the relevant contractual provisions (in paragraph 9(a) of the mortgage) require Wells Fargo to conduct its preservation activities in a " reasonable and appropriate" manner in the event that Plaintiff fails to perform his contractual obligations, so it would make no sense at all to find that Wells Fargo is exempted from conducting its property preservation activities in such a manner if plaintiff fails to perform his contractual obligations. The court will not give the contractual language a nonsensical construction.
Wells Fargo makes a second, narrower argument with respect to the breach of contract count. Regardless of the fate of its effort to win summary judgment on the entire count, Wells Fargo also argues that Connecticut law does not allow recovery of emotional distress damages for breach of contract, and therefore moves to have that component of plaintiff’s claim for relief stricken as to the Seventh Count. See Wells Fargo’s Memorandum of Law at 28-29 (citing Rodrigues v. JPMorgan Chase Bank, No. 3:08-CV-1417 (PCD), 2009 WL 3710688 (D.Conn. Nov. 3, 2009) ). Rodrigues, in turn, relies on a passage from a Connecticut Supreme Court case observing that damages for contractual breach " ordinarily do not encompass such losses as pain and suffering." Gazo v. City of Stamford, 255 Conn. 245, 265-66 (2001). The word " ordinarily" must not be overlooked. The court has located two sources of authority setting forth exceptions to the usual rule precluding emotional-distress damages for breach of contract.
One such authority is a Connecticut Supreme Court case stating that " in certain limited circumstances compensable tort damages [i.e., damages for emotional distress] may arise from the breach of a duty which may be the outgrowth of a contractual relationship between the parties." Bertozzi v. McCarthy, 164 Conn. 463, 556-57 (1973), quoting Urban v. Hartford Gas Co., supra, 139 Conn. at 304. Paraphrasing Urban, the Bertozzi case posits that " the test would be whether the [defendant] intentionally and unreasonably subjected [the plaintiff] to emotional distress which he should have recognized as likely to result in illness or other bodily harm." 164 Conn. at 557. If this language sounds familiar, it should; the Urban formulation plainly represents an incipient version of the liability standard for what has become a stand-alone cause of action for " negligent infliction of emotional distress." See pp. 19-22 above (discussing Urban and other early infliction of emotional distress cases). This very point, however, indicates that the exception noted in Bertozzi for breach-of-contract actions has since been transplanted to the place it belongs, in the field of tort law. On this reading of Bertozzi, a party seeking emotional distress damages based on a breach of contract must establish his entitlement under the liability standard for negligent (or intentional) infliction of emotional distress- breach of contract allegations are not enough.
It is no accident that both Urban and Bertozzi both are relied upon in the Connecticut case usually credited with first recognizing a cause of action for infliction of emotional distress, Montinieri v. Southern New England Telephone Co., supra, 175 Conn. at 343-44.
This brings us to § 353 of the Restatement (Second) of Contracts (1981), entitled " Loss Due to Emotional Disturbance." Section 353 provides: " Recovery for emotional disturbance will be excluded [in a breach of contract action] unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result ." (Emphasis added.) Section 353 articulates a standard for recovery of emotional distress damages in breach-of-contract cases that is slightly different than the rule applied in tort for negligent infliction of emotional distress. Section 353 has been cited in a number of superior court decisions in Connecticut, but apparently has not yet received attention from an appellate court in this state. Restatement provisions generally are highly regarded by our Supreme Court as reliable sources of law. Although this court does not know if Section 353 in particular would be adopted, there is no particular reason to think it would be rejected. Assuming that § 353 would be embraced in this state, the court would allow the Seventh Count to remain in the case, because a jury reasonably could find in plaintiff’s favor on this record under the legal standard contained in § 353. In the court’s view, the prudent course at this point is to deny summary judgment on the Seventh Count.
The tort standard requires proof that (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of plaintiff’s harm. See, e.g., Carrol v. Allstate Ins. Co., supra, 262 Conn. at 444. The contract-based standard requires proof of either (1) a contractual breach that causes physical harm, or (2) a contract or breach of contract of a kind that serious emotional disturbance is likely to result. Most factual scenarios satisfying one standard would likely satisfy the other as well. (For example, a breach of contract by a facility obligated to provide a wedding venue. See Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546 (2008) (awarding damages for negligent infliction of emotional distress in such a case) ). But the rules are different, and it may be possible to hypothesize circumstances triggering liability under one but not the other.
The court notes that the parties have not briefed the applicability of § 353, and therefore this aspect of the court’s ruling is made without prejudice to reconsideration by the trial judge, should further briefing reveal error in this court’s analysis.
Summary judgment is denied on the Seventh Count, without prejudice. See n.23.
5. Twenty-fifth Count (Negligent Supervision)
Wells Fargo’s motion fails to acknowledge the broad scope of plaintiff’s negligent supervision claim. If the claim were limited to alleged deficiencies in Wells Fargo’s supervisory obligations solely in connection with the thefts committed by Messrs. Sprague and Hopkins, the court would agree that the evidence is insufficient to permit the claim to go forward. See Wells Fargo’s Memorandum of Law at pp. 29, 31-32 (attacking viability of negligent supervision claim by focusing almost exclusively on criminal conduct perpetrated by Sprague and Hopkins). But plaintiff’s negligent supervision claim is much broader. It includes not only the theft of personal property (Twenty-Fifth Count, ¶ 4), but also Wells Fargo’s improper performance of property preservation activities/services more generally (id. ), including the failure to prevent wrongful entries onto plaintiff’s property and into his home (id. at ¶ 3), and the failure to adequately instruct and monitor its agents, which plaintiff alleges led to the wrongful entries and trespasses onto plaintiff’s property (id. at ¶ 5).
It is difficult to understand how Wells Fargo can argue that it had no legal duty to act with due care in connection with property preservation activities on plaintiff’s property. Wells Fargo is the one defendant with a direct contractual relationship with plaintiff. Moreover, even in the absence of that direct contractual relationship, Wells Fargo owed plaintiff a duty of care under the legal standard set forth at page 31 of its brief, which provides that a common-law duty of care arises when (1) the defendant should have foreseen the likelihood of harm occurring in the absence of due care, and (2) public policy supports the imposition of legal responsibility. See, e.g., Hotchkiss School, 326 Conn. 540, 548-49 (2017). Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-29 (2015). To the extent that Wells Fargo’s " no duty" argument is based on the theory that it hired independent contractors to undertake the property preservation activities, the contention fails for the reasons set forth at pp. 5-12 above. A jury readily could conclude that Wells Fargo was in the very best position to know everything necessary about plaintiff’s circumstances to prevent the " property preservation" activity from going forward when it did, because Wells Fargo was engaged in litigation with Norboe during the relevant time period; Norboe’s lawyer was a phone call away; the foreclosure matter was in mediation during May and June 2011; and so forth.
Wells Fargo also argues that it fulfilled all of its duties, such as they were, by insisting that its contractors met the highest standards of quality, and by promulgating exhaustive policies and guidelines to ensure that its contractors followed proper procedure. With respect to plaintiff in particular, Wells Fargo contends that the fault for any improprieties lies with MCS or its sub-contractors. It says that MCS failed to follow its guidelines (or MCS’s own guidelines), and/or failed to comply with a directive from a Wells Fargo employee (issued on June 24, 2011) to stop work at plaintiff’s property. But these are jury arguments. Plaintiff offers a version of the critical facts that features Wells Fargo prominently in the chain of blameworthy acts and omissions, and it will be up to the jury to decide what narrative best fits the facts.
Summary judgment is denied on the Twenty-Fifth Count.
Conclusion
Wells Fargo’s motion for summary judgment is GRANTED as to the Second, Third and Fifth Counts. The motion is DENIED as to the First, Fourth, Sixth, Seventh, and Twenty-Fifth Counts.
It is so ordered.
Attachment 1This case is scheduled for jury selection to begin on February 15, 2018.
2This conclusion appears to be indisputable in light of Huyer v. Njema, supra, 847 F.3d at 937 (finding that a mortgagor’s trespass claim is not barred by the same release).
Section 42-110g of CUTPA creates a private cause of action for persons who suffer " ascertainable loss of money or property" as a result of the methods, acts or practices prohibited under § 42-110b. It almost always is possible to treat an essential element of a statutory cause of action (the " ascertainable loss" element of a CUTPA claim in this instance) as being " jurisdictional," in the sense that a court is without authority to grant relief unless the statutory element is pleaded and proved. Such an approach, however, rests on an overly broad conception of what " jurisdiction" means. See Renaissance Management Co. v. Barnes, No. NHSP-117313, 2015 WL 2406899, *4 (Connecticut Superior Court, Housing Session, May 7, 2015) (discussing point, and citing cases).
One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.There is substantial evidence in the record that the specific work at issue, if not undertaken properly, entails a distinct risk of harm to person or property. (" Physical harm" is defined in the Restatement to include harm to real or personal property. See Restatement (Second) § 7(3) (includes harm to land or chattels) ).
Sometimes the categorization of an issue as jurisdictional (or not) will have significant consequences, see id., but the parties in this case have not briefed the issue nor suggested that anything turns on the point, so there is no need for the court to decide whether defendant’s " ascertainable loss" challenge to the Sixth Count is truly jurisdictional in nature.