Opinion
No. CV06-5006174
March 17, 2008
MEMORANDUM OF DECISION RE #109, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND #111, PLAINTIFF'S OBJECTION TO MOTION FOR SUMMARY JUDGMENT
The facts in this case are undisputed. On July 6, 2004, the Connecticut Superior Court (Copetto, JTR) dissolved the marriage of the plaintiff, Marian Torniero, and her former husband, Anthony J. Torniero. As a part of the dissolution, the court granted the plaintiff an interest in Anthony Torniero's pension. At the time of the dissolution, Anthony Torniero was employed by defendant Allingtown Fire District, (defendant Allingtown) and had a pension through the defendant. By letter, on July 8, 2004, plaintiff's counsel notified defendant Allingtown of the dissolution of marriage; and indicated that he would draw up a qualified domestic relations order (QDRO) in the preferred format of the defendant pursuant to the Court award. The defendant Allingtown never contacted plaintiff's counsel with information about the preferred form of the QDRO. Instead, after he was terminated, on July 29, 2004, the defendant Allingtown issued to Mr. Torniero a letter outlining his Termination Settlement, which explained that his pension balance, as of that date, was $56,686.12. And, on July 30, 2004, Anthony Torniero received a check from defendant Allingtown for $58,128.68 under his pension plan.
Although the defendants have not filed an Answer yet in this case, in their briefs and during oral argument they do not contest the pertinent factual claims of the plaintiff.
In the Dissolution of Marriage Judgment, the court awarded the plaintiff, inter alia, one-half (1/2) of Anthony Torniero's Fire Dept. Pension to be executed via QDRO.
The letter from Attorney James Trowbridge to the Allington (sic) Fire District states that: ". . . the Superior Court at New Haven dissolved the marriage of Anthony Torniero and Marian Torniero . . . on July 6, 2004 . . . The judgment also awarded 50% of Mr. Torniero's right in the Allington (sic) Fire District pension to Mrs. Torniero. We will prepare a QDRO order. If the District has a preference as to the form of the order, please let me know."
The amount of the check included the pension balance and accumulated sick days.
On September 13, 2006, the plaintiff filed a six-count complaint dated July 26, 2006, against the defendants Allingtown Fire District and Louis P. Esposito, Chairman of the Board of Fire Commissioners for the Allingtown Fire District alleging, essentially, that the defendants improperly disbursed money to Mr. Torniero from his pension fund. Specifically, in count one the plaintiff alleges negligence by the defendants in failing to safeguard the assets and keep the plaintiff informed about their status. In count two the plaintiff alleges negligent infliction of emotional distress. The plaintiff alleges intentional infliction of emotional distress in count three. In count four the plaintiff alleges that the defendants breached their fiduciary duty to the plaintiff by unilaterally, and without notice, distributing the pension contributions to Anthony J. Torniero. The plaintiff further alleges in count five that the plaintiff was a third-party beneficiary under the Termination Settlement Agreement. And, finally, in count six, the plaintiff alleges tortious interference with contractual/beneficial relations.
The defendants have not yet filed an Answer. The plaintiff erroneously argues that "[u]ntil defendants file their Answer stating which facts are agreed upon and those which are disputed, this court cannot decide if summary judgment is inappropriate." Plaintiff's Memorandum in Support of Objection to Motion for Summary Judgment, dated March 27, 2007, p. 11. "Although motions for summary judgment at one time could not be filed until the pleadings were closed, that has not been the case since 1992 when former Section 379 of the Practice Book was amended to provide that a motion for summary judgment can be filed `at any time' which is reflected in the current rule, Practice Book § 17-44. The result is that a motion for summary judgment is no longer tied necessarily to issues framed by the pleadings." AJJ Enterprises, LLC v. Herns, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005882 (December 26, 2006, Jennings, J.). As noted above, in their arguments the defendants do not dispute the pertinent factual allegations of the plaintiff. Further, this court is able resolve all of the issues raised in the motion for summary judgment on legal grounds. Therefore, the fact the defendants have not yet filed an Answer is immaterial.
In their February 13, 2007 motion for summary judgment, the defendants contend that they are entitled to judgment on all six counts of the plaintiff's complaint. The defendants argue in their Memorandum in Support of the Motion and in their Reply Brief that they were under no legal obligation to withhold pension contributions from Anthony Torniero based upon the July 8, 2004 letter from plaintiff's counsel. The defendants acknowledge that the letter provided notice of the dissolution of marriage (divorce) judgment. But, they deny that the notice, in the absence of a QDRO, compelled them to withhold pension proceeds from Anthony Torniero. Therefore, the defendants contend that they cannot be held liable for the breach of any duty to the plaintiff.
The plaintiff counters the defendants' motion by arguing that her attorney's letter put the defendants on notice regarding the QDRO. Resultantly, the plaintiff argues that the defendants had a common law duty: (1) to withhold the funds and, (2) at the very least, to act in good faith and notify the plaintiff of Anthony J. Torniero's imminent termination and the impending distribution of the pension.
Although both parties make general arguments regarding duty and the alleged breach of a duty, neither side specifically addresses each of the six counts in the complaint. Even though they request judgment on all six counts, the defendants restrict their arguments in their Motion for Summary Judgment, three (3) page memorandum, and two (2) page Reply brief to Count One and possibly Count Two (the two negligence counts). Likewise, plaintiff's Memorandum in Support of Plaintiff's Objection, though a lengthier twelve (12) pages, addresses only legal issues related to negligence. Nonetheless, because the defendants seek judgment on all counts, this Decision addresses all the counts even though the parties did not present legal arguments for four to five of the six counts.
"Argument: "In order for there to be legal liability against the defendants, there must be a legal obligation which they breached to the detriment of the plaintiff." Memorandum in Support of Motion for Summary Judgment, dated February 8, 2007, page 1. "No duty was owed to the plaintiff under the circumstances because it is not reasonable to anticipate, in absence of a Qualified Domestic Relations Order that the plaintiff's husband would violate a court order." Defendants' Reply Memorandum of Law, dated September 28, 2007, page 1.
"Argument: Defendant had a duty to exercise due and reasonable care prior to dispersing any funds to Anthony Torniero." Memorandum in Support of Plaintiff's Objection, p. 5.
At the outset, this court notes that the facts in this case are troubling. Despite the express terms of the financial orders of the trial court, Anthony Torniero received more than he was entitled to from his pension. Although the Superior Court clearly and unambiguously awarded the plaintiff an interest in Anthony Torniero's pension plan; and although Anthony Torniero and the defendants were duly notified of this, the plaintiff was thwarted from benefitting from the award by the intentional conduct of Anthony Torniero. It is clear that the defendants were put on notice of the award. This is undisputed. It is equally clear that plaintiff's counsel did not prepare and/or serve upon the defendants a QDRO. The one who lost as a result of all of this is the plaintiff.
In addition to the letter from plaintiff's counsel, plaintiff notes that former Chief Elmer Henderson, then Chief of the defendant Allingtown, appeared pursuant to a subpoena for the divorce proceedings. Exhibit E, Affidavit of Carolyn Wilkes Kaas, Director of Quinnipiac University School of Law Legal Clinic.
But, the issue for this court to decide is not whether the plaintiff received all to which she was entitled. The issue before this court is whether the defendants owed the plaintiff a legal duty to notify plaintiff's counsel of the impending withdrawal or to withhold pension payments that were due the plaintiff's ex-husband, even though no QDRO had been filed. Notwithstanding this court's sympathy to the plight of the plaintiff, nor its frustration with the conduct of Mr. Torniero, this court is compelled by law to grant the defendants' motion.
Given the date of the Dissolution (7-6-04) and the date that he received his pension check (7-30-04), it is impossible to believe that Mr. Torniero did not realize that he would be violating the financial orders contained within the Dissolution Judgment when he received the entire balance of his pension fund and withheld plaintiff's portion from her.
"Practice book § 17-49 provides that summary judgment shall be rendered forthwith if pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
Generally, "[i]ssues of negligence are . . . not susceptible of summary adjudication but should be resolved by the trial court in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). This is because "[s]ummary [j]udgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). See, also Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972). However, in certain case, and the instant one is just such a case, summary judgment is the appropriate vehicle through which to resolve the case.
I. Count One — Negligence
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so . . . The determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citations omitted; internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 192, 844 A.2d 224 (2004). See also Mazurek v. Great American Ins. Co., supra 284 Conn. 29.
"A simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Mazurek v. Great American Ins., Co., supra, 284 Conn. 29-30.
"A QDRO is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act [(ERISA)], 29U.S.C. § 1001 et. seq. See 29 U.S.C. § 1056(d)(3)(b) for the requirements of a valid QDRO." Krafick v. Krafick, 234 Conn. 783, 786 n. 4, 663 A.2d 365 (1995); Bee v. Bee, 79 Conn.App. 783, 796, n. 6, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003). Therefore, the court will now examine and address the law regarding QDROs, in order to resolve the issue of whether or not the defendants owed the plaintiff a legal duty to either notify her of the imminent disbursement of pension funds or to withhold the pension funds from Anthony Torniero.
"The concept of the QDRO originated with the Retirement Equity Act (the `REA'), an amendment to ERISA which took effect, for relevant purposes, on January 1, 1985. Pub.L. No. 98-397 § 303(d), 98 Stat. 1426 (1984). Timing is significant because prior to the REA and its QDRO provisions, ERISA preempted state court orders such as the Judgment. Since employment benefits were commonly at issue in state court matrimonial disputes and since ERISA's preemption provision had the unintended effect of disturbing interests and expectations fixed in such proceedings, the REA was designed to give effect to divorce decrees and related state-court orders insofar as they pertained to ERISA-regulated plans. Boggs v. Boggs, 520 U.S. 833, 847, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) (stating that `one of REA's central purposes . . . is to give enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death[,] the surviving spouse')." Metropolitan Life Ins. Co. v. Bigelow, 283 F.3d 436, 441 (2nd Cir. 2002).
"QDROs provide the exclusive method for anyone other than the participant to receive distributions from a retirement plan directly from the plan administrator." Julie McDaniel Dallison, "Disappearing Interests: ERISA Impliedly Preempts the Predeceasing Nonemployee Spouse's Community Property Interest in the Employee's Retirement," 49 Baylor L. Rev. 477, 484 (1997). "Until the QDRO is actually filed and approved by the plan administrator . . . the ownership rights remain in the employee spouse." Judge V. Michael Brigner, "The 1994 Bankruptcy Code Revisions from a Domestic Relations Court Perspective," 34 U. Louisville J. Fam. L. 643 (1995-96).
"Section 206 (d) [of ERISA] reflects a considered congressional policy choice, a decision to safeguard a stream of income for pensioners . . . even if that decision prevents others from securing relief for the wrongs done them. If exceptions to this policy are to be made, it is for Congress to undertake that task." Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 376, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990), appeal after remand, 10 F.3d 700 (10th Cir. 1993), reh'g, 39 F.3d 1078 (10th Cir. 1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1691, 131 L.Ed.3d 556 (1995). "The spendthrift provisions of ERISA are designed to ensure that the employee's accrued benefits are actually available for retirement purposes, by preventing unwise assignment or alienation . . . These provisions focus on the assignment or alienation of benefits by a participant . . ." (Citation omitted; internal quotation marks omitted.) CT Page 4578 Fox Valley Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 279 (7th Cir. 1990).
"ERISA . . . creates several exceptions to its general preemption provision, one of which is relevant here: ERISA does not preempt qualified domestic relations orders." (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Bigelow, 283 F.3d 436, 440 (2nd Cir. 2002); 29 U.S.C. § 1144(b)(7). "The QDRO exception is also centered on the alienation or assignment of benefits. As noted in the legislative history, the creation, recognition, or assignment of the alternate payee's right to the benefits will only be exempted from the spendthrift provisions if the QDRO requirements are met . . . A QDRO creates a right to payment of benefits." (Citation omitted; internal quotation marks omitted.) Fox Valley Vicinity Construction Workers Pension Fund v. Brown, supra, 897 F.2d.
"The divorced spouse loses all right to the survivor benefit protections that federal law requires be provided to a participant's spouse" without a properly drafted QDRO. U.S. Department of Labor, Pensions and Welfare Benefits Administration, QDROs: The Division of Pensions Though Qualified Domestic Relations Orders, Question 3-5, available at http://www.dol.gov/ebsa/publications/qdros.html (accessed December 20, 2007) (QDRO Handbook); see also Lack S. Older, "Labor Department Booklet Clarifies QDRO Rules," 25 Westchester B. J. 55 (1998).
As to the application to Connecticut state law, "[n]othing in [General Statutes § 52-321[a] shall impair the rights of an alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended." General Statutes § 52-321a(b).
Contacting the plan administrator requesting the preferred format of the QDRO prior to drafting, though courteous and well-intentioned, is not a requirement under the statute. "Although they are not required to do so, plan administrators may develop and make available `model' QDRO forms to assist in the preparation of a QDRO. Such model forms may make it easier for the parties to prepare a QDRO and reduce the time and expenses associated with a plan administrator's determination of the qualified status of an order." QDRO Handbook, supra, Question 2-7. "[M]any plans will offer model QDROs to aid attorneys in dividing benefits . . . [M]odel QDROs are drafted primarily for the convenience of the plan administrator." Leslie C. Hallock, Esquire, "ERISA Primer: What Every Non-ERISA Attorney Should Know," 12 Maine Bar J. 206 (July 1997).
Plaintiff's counsel would have better served the interest of his client by filing a draft of a QDRO, irregardless of the preferred form of the defendant. For, the plan administrator does have legal duties to plan participant's former spouse under the statute. But, those duties do not become actionable until at least a draft of a QDRO has been filed. See Kelly McClure and Sonja J. McGill, "Tyla Special Selection: Child Support Enforcement Program: Don't Drag Me In: An Employer's Dos and Don'ts When Family Court Calls," 63 Tex. B. J. 982, 985-86 (2000) ("Upon receipt of any domestic relations order, the plan administrator must notify the participant and each alternate payee, in writing, of receipt of the order and of the plan's procedures for determining the qualified status of the order.") See, also Judge V. Michael Brigner, "The 1994 Bankruptcy Code Revisions from a Domestic Relations Court Perspective," 34 U. Louisville J. Fam. L. 643, n. 117 (1995-96); and 29 U.S.C. § 1056(d)(3)(H). "[A] plan administrator who fails to abide by a valid QDRO or who complies with a defective QDRO can be held liable for a breach of fiduciary duty to either the participant or the alternate payee." Leslie C. Hallock, Esquire, "ERISA Primer: What Every Non-ERISA Attorney Should Know," 12 Maine Bar J. 206 (July 1997).
Notably, there is no statutory remedy for alleged wrongful distribution absent a QDRO. If funds are alleged to have been wrongly distributed, "[t]he remedy [to prevent an unfair result] . . . is under state law and does not concern the plan administrator." George A. Norwood, "Who Is Entitled to Receive a Deceased Participant's ERISA Retirement Plan Benefits — an Ex-Spouse or Current Spouse? The Federal Circuits Have an Irreconcilable Conflict," 33 Gonz. L. Rev. 61, 97-98 (1997/1998).
Although there are cases which impose a duty upon one of the spouses for receiving pension funds in excess of that which is authorized by court order, the plaintiff fails to cite and this court has found no cases concluding that a pension plan administrator owes a common law duty to either freeze pension funds prior to the filing of a QDRO, or to notify a former spouse of the imminent disbursement of pension funds to a plan participant. Nor has the plaintiff cited or this court found any caselaw holding that a pension plan administrator owes a legal duty to provide the preferred form of a QDRO to the ex-spouse.
See, e.g. Scott v. Wolff, Superior Court, Judicial District of New Haven, Docket No. FA 99 0420860 (December 13, 2006, Burke, J.) (Court concluded that even though the former husband had not filed a QDRO, the former wife "should have taken steps to correct the situation when she began receiving an amount greater than the court order had provided her."); and Pierce v. Pierce, Superior Court, judicial district of New London at Norwich, Docket No. FA 000119233 (September 2005, Vashington, J.TR.).
One of the few trial court decisions which addresses the issue of viable causes of actions arising from a party's failure to receive court-ordered proceeds from a former spouse's pension plan is Nevile v. Solomon, Superior Court, judicial district of New Haven, Docket No. CV 06 5001808 (March 20, 2007, Cosgrove, J.). In Nevile, the plaintiff sued her attorney and the law firm who represented her in her divorce proceedings, after she failed to receive the funds from her ex-husband's retirement account by way of a QDRO, as agreed upon in the separation agreement. Neville alleged fraudulent concealment, violation of CUTPA, legal malpractice and breach of contract. The court denied the defendants' motion to strike the claims of fraudulent concealment and breach of contract against the plaintiff's attorney, finding that it was the defendants' responsibility to draft, file and revise as requested the QDRO. The defendants did draft and file the QDRO, but they failed to make the required revisions to the QDRO. And, they did not contact the plaintiff about the QDRO.
In the present case, despite the fact that plaintiff's counsel notified the defendants of the Court award, and despite the fact that plaintiff's counsel requested from the defendant's information about preferred forms, the plaintiff's attorney did not submit a QDRO to the defendants. One would have expected that courtesy and/or a cooperative spirit would have compelled the defendants to at least notify the plaintiff or her counsel, prior to the disbursement of the pension funds, of the preferred form for QDRO — or that the defendants had no preferred form. However, absent the filing of at least a draft of a QDRO, the defendants were under no legal duty to the plaintiff as an alternate payee. Accordingly, the defendants are entitled to judgment on Count One of the Complaint.
II. Count Two — Negligent Infliction of Emotional Distress
"To succeed in a claim for negligent infliction of emotional distress, the plaintiff must prove two facts: (1) negligence on the part of the defendant; see Urban v. Hanford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952); and (2) 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." Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997); Urban v. Hartford Gas Co., supra, 139 Conn. 307." Jolly v. United Illuminating, Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 010454398 (December 3, 2002, Robinson-Thomas, J.)
Because negligent infliction of emotional distress is a negligence cause of action, one of the required elements is proof of the existence of a duty. "In order to press a negligent infliction of emotional distress claim, a plaintiff must allege facts showing that the defendant negligently breached a duty owed to the plaintiff . . ." (Citations omitted.) DeLeo v. Reed, Superior Court, judicial district of Stamford, Docket No. CV 99 0172435 (January 3, 2000, Hickey, J.). The violation of a duty is a matter for the jury to resolve, however, the decision of whether a legal duty exists is to be made by the court. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).
To support a claim for negligent infliction of emotional distress "[the] plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Citations omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d. 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (appeal withdrawn May 25, 2005).
Although, as stated earlier, this court is entirely sympathetic with the plight of the plaintiff, there is no basis in law for imposing the type of duty upon the defendants that the plaintiff urges. A failure to respond or a failure to notify, though troubling, does not constitute the type of conduct for which the creation of a duty is mandated. Certainly, there is no contractual, statutory or legislative basis. In light of all the considerations, including the fact that the plaintiff has other viable legal remedies against others, this court heeds the admonition of our Supreme Court, and declines to impose a legal duty upon the defendants beyond that which is designated in the federal statutes. .
Absent clear directives, courts should decline to impose a legal duty. ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 553, 935 A.2d 115 (2007). In ATC Partnership, the court noted that "[w]hen we acknowledge new causes of action, we . . . look to see if the judicial sanctions available are so ineffective as to warrant the recognition of a new cause of action. Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 235-36. To determine whether existing remedies are sufficient to compensate those who seek the recognition of a new cause of action, we first analyze the scope and applicability of the current remedies under the facts alleged by the plaintiff. Id., 236. Finally, we are mindful of growing judicial receptivity to the new cause of action, but we remain acutely aware of relevant statutes and do not ignore the statement of public policy that such statutes represent. Sheets v. Teddy's Frosted Foods, Inc., [ 179 Conn. 471, 480, 427 A.2d 385 (1980)]." Id. at 553.
Because the plaintiff fails to establish the defendants owed her a legal duty pursuant to her negligent infliction of emotional distress claim, the defendants are entitled to judgment on Count Two.
This court notes that the negligent infliction of emotional distress claim asserted by the plaintiff also fails to allege that the defendants should have foreseen that their conduct would likely cause emotional distress as required under Connecticut law.
III. Count Three — Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) O'Donnell v. Corte, Superior Court, judicial district of New Haven, Docket No. CV 07 5012829 (November 15, 2007, Licari, J.).
"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! . . . 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 intentional infliction of emotional distress." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, supra, 102 Conn.App. 706.
The complaint alleges that:
"The defendant intentionally failed to notify plaintiff of the actions it was taking with respect to Anthony J. Torniero, which put the assets of the plaintiff at risk of loss." "The defendant intentionally failed to protect the pension contributions in which the court awarded the plaintiff an interest, by intentionally and improperly distributing the Plaintiff's share of the pension contributions to Anthony J. Torniero."
Complaint, Count Three, paragraphs 17 and 18.
There is no evidence that the defendants improperly disbursed the pension funds to Anthony Torniero. As noted earlier, because no QDRO had been filed, the defendants were under no obligation to withhold the funds from Anthony J. Torniero. Regarding the alleged failure to communicate, it is undisputed that the defendants failed to communicate with the plaintiff after receiving the letter from plaintiff's counsel. This failure may have displayed bad manners and undoubtably caused hurt feeling. However, the plaintiff has not established that the failure to notify, in the context of the facts in this case, constitutes extreme and outrageous conduct. The defendants' conduct, though discourteous, was not extreme or outrageous. Nor has the plaintiff proven that it was malicious or intentional.
The plaintiff implies and suggests, but does not prove, that the defendants knowingly and intentionally enabled Anthony Torniero to violate the court order before the plaintiff was given the opportunity to stop him. There were innuendos and implications laced throughout plaintiff's brief and argument. However, these alone are insufficient to support the IIED claim asserted by the plaintiff.
Also, the plaintiff fails to present evidence to establish the fourth required element for an Intentional Infliction of Emotional Distress claim: that the emotional distress sustained was severe. In her complaint, she alleges that
"as a direct and proximate result of Defendant's intentionally tortious conduct, Plaintiff has suffered severe hardship, suffering and mental anguish as a result of the loss of her one tangible asset of marital property.
"As a direct and proximate result of Defendant's intentionally tortious conduct, the Plaintiff has suffered severe emotional and physical distress."
Complaint, Count Three, paragraphs 22 and 23.
In order for the alleged emotional distress to meet the fourth element of the Intentional Infliction of Emotional Distress claim, "the standard requires that the distress must be at a level which no reasonable [person] could be expected to endure . . . 1 Restatement (Second) Torts Section 46, comment (j). Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 21, 597 A.2d 846 (1991)" (Internal quotation marks omitted.) Cole v. Moorehouse, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99 0427337 (September 18, 2002, Robinson-Thomas, J).
"Though our appellate courts have clearly stated that `severe emotional distress' is `mental distress of a very serious kind'; see e.g. Muniz v. Kravis [ 59 Conn.App. 704, 708, 757 A.2d 1207 (2000)]; they have never announced a bright-line test for determining which kinds of mental distress are sufficiently serious to qualify as `severe emotional distress.' Even so, they have consistently held that the determination `whether . . . the plaintiff's . . . distress [is] sufficient to satisfy . . . the [fourth and final element of intentional infliction of emotional distress] is a question, in the first instance, for [the] court.' See, e.g. Ancona v. Manafort Bros., Inc., [ 56 Conn.App. 701, 712, 746 A.2d 184, cert. denied, 252 Conn. 954, 749 A.2d 1202 (2000)]." Stapleton v. Monro Muffler et al., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 98 0580365 (February 3, 2003, Sheldon, J.)
In the absence of articulated standards by our appellate courts, most trial courts apply the standard set forth in the Restatement. See, e.g. Gorra v. Seacorp, Inc. et al, Superior Court, judicial district of New London at New London, Docket No. 550384 (August 13, 2002, Hurely, J.T.R.). The Restatement provides that "emotional distress . . . includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, nausea. It is only where it is extreme that the liability arises." Id.
To determine the sufficiency of the allegations of emotional distress, the court "looks to the specific facts and circumstances of each case in making its decision . . ." Dow v. Whitcraft, LLC, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 03 0082417 (September 28, 2004, Scholl, J.). Connecticut trial courts have held that where "the complaint is devoid of specific factual allegations but instead consists of conclusory characterizations of conduct . . . the court cannot find that the complaint sufficiently states a cause of action for intentional infliction of emotional distress." Id.
The Plaintiff's complaint merely asserts conclusory statements regarding the severity of her alleged emotional distress. These statements, unsupported by further evidence of emotional distress, are insufficient to support a claim for emotional distress and would have been properly stricken if a motion to strike had been presented by the defendants.
In the present case, the defendants' conduct does not rise to the extreme or outrageous level required to apply the intentional infliction of emotional distress doctrine; and the plaintiff has failed to support her claim that the emotional distress she claims to suffer is severe. Therefore, the defendants are entitled to judgment on count three.
IV. Count Four — Breach of Fiduciary Duty
"[A] prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "[The] plaintiff bears the burden of establishing . . . a fiduciary relationship between [the parties]." Murphy v. Wakelee, 247 Conn. 396, 404, 721 A.2d 1181 (1998). "[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). "[E]quity has carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations." (Citation omitted; internal quotation marks omitted.) Falls Church Group, Ltd v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 109, 912 A.2d 1019 (2007). "Simply classifying a party as a fiduciary inadequately characterizes the nature of the relationship." Konover Development Corp. v. Zeller, 228 Conn. 206, 223, 635 A.2d 798 (1994). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Citation omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000). "The Connecticut Supreme Court has . . . [choosen] to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other . . . The Connecticut Supreme Court has also recognized that not all business relationships implicate the duty of a fiduciary." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, Superior Court, complex litigation docket at Waterbury, Docket No. UWY CV 04 0185580 (June 19, 2005, Eveleigh, J.).
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 38. The Court noted that "[i]n the cases in which [the Connecticut Supreme Court] has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Id., 39. The court did not find a fiduciary relationship where ". . . there was no evidence that the plaintiff was unable to protect its interests." Id., 41. "The fact that one business person trusts another and relies on [the person] to perform [its obligations] does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty." (Internal quotation marks omitted.) Id. "Superior skill and knowledge alone do not create a fiduciary duty among parties involved in a business transaction." Id., 42.
In the present case, the defendants are not liable for breach of fiduciary duty because the defendants did not have a fiduciary relationship with the plaintiff. Apart from the July 8, 2004 letter that plaintiff's attorney sent to the defendants, notifying them of the divorce, there was no communication or relationship between the defendants and the plaintiff. Further, the defendants' duty to the plaintiff, according to the federal statute, does not arise until at least a draft of a QDRO is submitted. As this event never occurred, the defendants did not have a fiduciary duty to the plaintiff, but only to Anthony J. Torniero, as the plan participant. Accordingly, the defendants are entitled to judgment on Count Five.
V. Count Five — Third Party Beneficiary of Contract
"The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Citations omitted; internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003).
"The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Internal quotation marks omitted.) Id., 581.
In the present case, the plaintiff is not a third-party beneficiary of the Termination Settlement Agreement, because the Agreement does not mention the plaintiff by name or designation in relation to the pension benefits. There is no evidence that parties to the Agreement intended the plaintiff to be a third-party beneficiary. Accordingly, the defendants are entitled to judgment on Count Five.
The Agreement merely lists costs for COBRA benefits for a single person, two people and a family. This is not evidence of the plaintiff as a third-party beneficiary.
VI. Count Six — Tortious Interference with Contractual/Beneficial Relations
"A successful action for tortious interference with business expectancies requires the satisfaction of three elements: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007), quoting Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 27.
"[F]or a plaintiff to successfully prosecute . . . an action [of tortious interference with business relations] it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [An] action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." (Internal quotation marks omitted.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 429, 780 A.2d 967, cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001). (Appeal dismissed June 25, 2002.)
In the present case, this court cannot conclude that the defendants tortiously interfered with contractual or beneficial relations of the plaintiff. First, the plaintiff has failed to establish the existence of a contract. It is true that both the plaintiff and Anthony Torniero were at one time married; and that both were and are bound by the Orders issued by the trial court in the Dissolution Judgment. However, these facts, alone, do not create a contract, though they may have given rise to a beneficial relationship. Second, even assuming that some sort of contract or beneficial relationship was created, the plaintiff has not established that the defendants intentionally interfered with it or that their actions were tortious. At best, the plaintiff has been able to prove that the defendants should have known that the court had granted the plaintiff an interest in her ex-husband's pension, a pension which they disbursed to Anthony Torniero pursuant to their legal obligation as pension fund administrators.
Knowledge, whether constructive or actual, of potential financial ramifications is insufficient to constitute tortious conduct. See, Dougherty v. Dougherty, Superior Court, judicial district of Litchfield, Docket No. CV 03 0089577 (August 16, 2005, Brunetti, J.). In Dougherty the trial court held that plaintiff had failed to allege tortious interference with business contract cause of action because the defendant's purchase of property for less than fair market value from plaintiff's former spouse was not tortious conduct. Even though the defendants in Dougherty may have had actual or constructive notice that plaintiff's former husband was obligated under the divorce decree to pay debts from the proceeds of the property sale, the defendants did not tortiously interfere. "The plaintiff does not specifically allege any wrongful action other than the interference itself. Her only claim is that solely by entering into an agreement to purchase the subject property, [the defendant] tortiously interfered with her financial expectancy." Id.
In the instant matter, the plaintiff did not have an enforceable legal right against the defendants until a QDRO had been filed. The close proximity in timing between the July 8, 2004 letter notifying the defendants of the divorce judgment and the intended QDRO, and the dispensing of the pension funds to Anthony J. Torniero on or about July 30, 2004 does not constitute sufficient proof of tortious interference. The defendants were allowed and compelled under law to disburse the funds to Anthony Torniero upon his termination of employment. Therefore, in the absence of evidence of wrong-doing or tortious conduct, the plaintiff cannot prove her claim of tortious interference. For this reason, the defendants are entitled to judgment on Count Six.
VII.
As noted earlier, this is a very unfortunate situation. The balance of the pension fund of Anthony Torniero purportedly represented the most valuable financial asset from the marriage of Anthony Torniero and the plaintiff. And, Anthony Torniero took that entire asset without giving the plaintiff her share. Further rendering this situation sad is the possibility that, had the defendants simply notified plaintiff or plaintiff's counsel of the imminent disbursement of the pension fund, these unfortunate circumstances could have been avoided. What would have happened had the defendants simply responded to plaintiff's counsel's letter by either providing information regarding a preferred form or indicating that they had no preferred form, is pure speculation. But, what seems conclusively established by law is the fact that the defendants were under no legal duty to the plaintiff because plaintiff's counsel did not file a QDRO with the defendants; and their conduct otherwise was not extreme, outrageous or tortious, as those terms are legally applied.