Opinion
No. CV05 4007856
March 21, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE #110
The defendant has moved to strike Counts Three and Five of the plaintiff's revised complaint dated August 19, 2005. The revised complaint contains five causes of action and four prayers for relief. Count Three is a claim sounding in quantum meruit for severance pay. Count Five is a claim pursuant to General Statutes § 31-72 to collect accrued and unused vacation time of three weeks and severance pay for four weeks. The defendant also moves to strike two prayers for relief which seek attorneys fees and discretionary double damages as provided in General Statutes § 31-72.
I Facts and Procedural History
The plaintiff has alleged that the defendant was his employer. Prior to the plaintiff entering into an employer-employee relationship with the defendant, the defendant drafted an agreement setting forth the duties and obligations of the Director of Prepared Food Operations, which was the plaintiff's position. As part of the agreement, in exchange for the plaintiff fulfilling his employment obligations, the defendant agreed to pay the plaintiff the sum of $1,700 per week, provide him three weeks vacation pay and four weeks salary upon the termination of plaintiff's employment without good cause. Despite the plaintiff's employment being terminated without good cause on October 23, 2004, the defendant has refused to pay the plaintiff the four weeks salary or his remaining vacation time.
The revised complaint contains five counts. Count One alleges a breach of contact. Count Two alleges a breach of an implied contract. Count Three alleges quantum meruit. Count Four alleges a breach of an express and implied contract to provide vacation time. Count Five alleges an action pursuant to § 31-72 to collect wages and fringe benefits. The plaintiff has claimed damages which includes attorneys fees and double damages, insofar as the plaintiff has alleged violations of § 31-72.
Sec. 31-72. Civil action to collect wage claim, fringe benefit claim or arbitration award reads in relevant part, as follows:
When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k . . .
such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action . . .
The defendant has moved to strike Count Three arguing that the facts do not support the allegation that the plaintiff is entitled to wages. As to Count Five, the defendant argues that vacation pay is a fringe benefit and the four weeks pay upon termination is severance pay, which cannot be sustained under § 31-72. The defendant additionally argues that the plaintiff is not entitled to attorneys fees or double damages because the plaintiff has not alleged bad faith, arbitrariness and/or unreasonableness.
II The Law
The law regarding a motion to strike is well-established. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
III Count Three: Quantum Meruit
Count Three seeks recovery of four weeks salary after the plaintiff's termination or for four weeks of severance pay on the legal theory of quantum meruit. The defendant contends that for the plaintiff to assert a legally sufficient claim for quantum meruit, the plaintiff must allege he was unjustly deprived of compensation for services rendered and separation or severance pay is not payment for services rendered.
"Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property . . . and applies when no remedy is available based on the contract. United Coastal Industries v. Clearheart Con., 71 Conn.App. 506, 512-13, 802 A.2d 901 (2002); citing Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). "The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit . . . It would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff." Id.
"[Q]uantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement . . . Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services." (Citations omitted; internal quotation marks omitted.) Shapero v. Mercede, 77 Conn.App. 497, 505, 827 A.2d 11, 823 A.2d 1263 (2003) quoting, Gagne v. Vaccaro, supra, 255 Conn. 390, 401, 766 A.2d 416 (2001).
Whether or not separation or severance pay is considered wages pursuant to General Statutes § 31-72 is not determinative as to whether the plaintiff has a legally sufficient claim under quantum meruit. See Wuerth v. Schott Electronics, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 91 036406 (March 13, 1992, Flynn, J.) ( 6 Conn. L. Rptr. 167) (Severance pay does not constitute wages for the purposes of General Statutes § 31-72.) The essential elements of a claim for quantum meruit do not include a requirement that a recovery be limited to a claim for wages, solely as wages may be defined by statute.
In order to assert a legally sufficient claim the plaintiff must allege that he was unjustly deprived of compensation for services rendered to the defendant. Separation pay or severance pay is "a kind of accumulated compensation for past services and a material recognition of their past value." Willets v. Emhart Mfg. Co., 152 Conn. 487, 490, 208 A.2d 546 (1965). "It concerns the past, not the future, and once it is earned, it becomes payable no matter what may thereafter happen." Id. The plaintiff's claim in the present action is based on past services rendered. When a payment is made it is not determinative of what it is meant to be for. Id. 490-91. Severance pay was in consideration for past work that was done and was payable regardless of what has happened with the parties.
The defendant's motion to strike Count Three sounding in quantum meruit is hereby denied.
IV Count Five: Severance Pay or Vacation Pay, Attorneys Fees and Double Damages Pursuant to General Statutes § 31-72 A.
General Statutes § 31-71 a defines "wages" as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece and commission or other basis of calculation." General Statutes § 31-72 does allow an employee to sue if an employer "fails to compensate an employee in accordance with section 31-76k . . ." General Statutes § 31-76k identifies "vacation pay" as a fringe benefit and obligates the employer to pay such fringe benefits to an employee at the employee's termination if an employer has a "policy or collective bargaining agreement for the payment of accrued fringe benefits." The defendant argues that as the plaintiff's revised complaint makes no mention of section 31-76k and does not allege either a policy or a collective bargaining agreement as the basis of the defendant's obligation to pay plaintiff's claimed vacation pay upon the plaintiff's termination, the plaintiff cannot recover under section 31-72. Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 806-07, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993). The defendant additionally argues that severance pay cannot be considered "wages" under section 31-71a because severance pay is not considered "compensation for labor or services rendered" within the meaning of General Statutes § 31-72.
Sec. 31-76k. Payment of fringe benefits upon termination of employment.
If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive.
Count Five of the plaintiff's complaint specifically states that it is based upon an action pursuant to General Statutes § 31-72. Practice Book § 10-3(a) provides that when any claim made in a complaint is grounded on a statute, the statute shall be specifically identified by its number. The plaintiff's complaint identifies § 31-72 as her source for relief. Section 31-72, however, specifically refers to § 31-76k, and therefore, defendants have been put on notice of the plaintiff's reliance on § 31-76k. See Morales v. Pentec, Inc., 57 Conn.App. 419, 441 n. 4, 749 A.2d 47 (2000). Section 31-76k includes "paid vacations."
The plaintiff's claim under § 31-76k, as well, can only be viable if he has sufficiently alleged an employer policy or collective bargaining agreement which provides for the payment of accrued fringe benefits upon termination. From the facts alleged in Count Five, the court finds that the plaintiff has sufficiently alleged an employer policy for all Directors of Prepared Food Operations, not just the plaintiff. The employer's policy relates not to the employer's intent with regard to a single employee, but rather to the defendant employer's intentions regarding a discrete class of employees. Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 27 Conn.App. 806. The agreement alleged by the plaintiff that existed between the plaintiff and the defendant sufficiently sets forth a definite course of action to guide and determine present and future decisions and includes the Director's salary, responsibilities and conditions of employment. Therefore, as section 31-76k specifically includes "paid vacations," as a fringe benefit, the plaintiff thus has sufficiently alleged an action under § 31-72 to be compensated for his accrued vacation time in the form of wages. The motion to strike the plaintiff's claim for accrued vacation pay as set forth in Count Five is denied.
B.
The court next addresses whether the plaintiff's claim for four weeks severance pay qualifies as wages pursuant to § 31-72 or a fringe benefit as defined in § 31-76k. In Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 805-05, the Appellate Court determined whether an amendment to § 31-72, effective on July 1, 1990, should apply retrospectively to a plaintiff who was discharged in 1989 and, if not, whether the term "wages" in § 31-72 was broad enough to include vacation pay. Id. The court held that the trial court properly refused to apply the amendment retrospectively, reasoning that "it is significant that the legislature chose not to amend the statutory definition of `wages' set forth in § 31-71a(3). Instead, it altered the text of § 31-72, which delineates the breadth of statutory liability, by authorizing double damages when an employer fails to pay an employee wages or fails to compensate an employee in accordance with [General Statutes §] 31-76k . . . The use of the disjunctive `or' clearly indicates that compensation in accordance with § 31-76k is distinct from wages." Id. Although § 31-76k now includes accrued paid vacation time, Fulco's reasoning that the legislature intended that § 31-76k and the statutory definition of wages in § 31-71a(3) concern different types of remuneration is still valid as it relates to the plaintiff's claim for severance pay. Section 31-76k addresses payment for accrued fringe benefits upon termination of employment, including certain fringe benefits, whereas § 31-72 relates to "wages" as defined in § 31-71a(3). "[T]he definition of wages is limited to remuneration for labor or services rendered . . ." Id. 804. The statutory definition of "wages" as used in § 31-72 is limited on its face and makes no mention of severance pay. If the legislature in enacting § 31-72 or amending § 31-72 did not intend to include benefits such as severance pay within the meaning of wages as used in the statute, then it would be illogical to conclude that the legislature intended that § 31-76k would include severance pay when § 31-76k does not specify severance pay in its list of fringe benefits. See, Mangiofico v. McKelvey, Superior Court judicial district of New Britain at New Britain No. CV 04-4000609 S (Apr. 18, 2005, Burke, J.) see also, Fontaine v. Colt's Mfg. Co., Superior Court, judicial district of Hartford, Docket No. CV 99 0594929 (March 20, 2002, Freed, J.) aff'd 74 Conn.App. 730, 814 A.2d 433 (2003); Wuerth v. Schott Electronics, Inc., supra, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 91 036406 (March 13, 1992, Flynn, J.) ( 6 Conn. L. Rptr. 167). (Since the severance pay is not "compensation for labor or services rendered by an employee . . ." severance pay does not constitute wages for the purposes of General Statutes § 31-72.)
Accordingly, the motion to strike the plaintiff's claim for severance pay in Count Five is granted.
C. Claims for Relief Pursuant to General Statutes § 31-72
The court has found that the plaintiff has sufficiently alleged an action under § 31-72 to be compensated for his accrued vacation time in the form of wages the court must consider whether the plaintiff has sufficiently alleged that he is entitled to attorneys fees and discretionary double damages as provided by General Statutes § 31-72. As noted herein, Section 31-72 provides in relevant part as follows:
When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action . . . Id.
The defendant, however, argues that Connecticut case law requires specific factual allegations of bad faith, arbitrariness or unreasonableness by an employer in order for an employee to recover discretionary double damages and attorneys' provided pursuant to General Statutes 31-72. The court disagrees with the defendant.
In the present case, § 31-72 provides the statutory predicate for an award of reasonable attorneys fees to prevailing plaintiffs. It is well established that it is appropriate for a plaintiff to recover attorneys fees, and double damages under § 31-72, only when the trial court has found that the defendant acted with bad faith, arbitrariness or unreasonableness. Schoonmaker v. Brunoli, 265 Conn. 210, 269, 828 A.2d 64 (2003). "[I]n an action for wages brought pursuant to General Statutes 31-72, awards for double damages and attorneys fees are inappropriate in the absence of the trial court's finding of `bad faith, arbitrariness or unreasonableness.'" Sansone v. Clifford, 219 Conn. 217, 229, 592 A.2d 931 (1991) quoting, Matteson v. Great Eastern Development, Ltd., 18 Conn.App. 618, 621, 559 A.2d 1165 (1989). See also, Crowther v. Gerber Garment Technology, Inc., 8 Conn.App. 254, 265, 513 A.2d 144 (1986).
The cases cited by the defendant provide no basis for the defendant's argument that a plaintiff must specifically plead bad faith, arbitrariness and unreasonableness on the part of the employer in order to have sufficiently pleaded an action under § 31-72, entitling a plaintiff to a discretionary award of attorneys fees and double damages. What it required, is that the plaintiff prove and that the trial court finds bad faith, arbitrariness or unreasonableness by the employer. See Santangelo v. Elite Beverage, Inc., 65 Conn.App. 618, 627, 783 A.2d 500 (2001). ("On the basis of our review of the record, we conclude that the court properly concluded that an award of double damages, attorneys fees and costs was inappropriate because there is no evidence in the record that the defendants acted with bad faith or arbitrarily or unreasonably.")
Accordingly, the motion to strike the plaintiff's claims for relief regarding a discretionary award of attorneys fees and double damages pursuant to § 31-72 is hereby denied.
SUMMARY
For the reasons cited herein the court enters the following orders:
1. The motion to strike Count Three sounding in quantum meruit is denied.
2. The motion to strike Count Five pursuant to alleging an action pursuant to General Statutes § 31-72 is denied as to the plaintiff's claim for vacation pay. It is granted as to the plaintiff's claim for severance pay.
3. The motion to strike the plaintiff's claims for relief regarding double damages and attorneys fees pursuant to § 31-72 is hereby denied.