Opinion
No. 4003128
August 14, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 119
FACTS
On July 6, 2002, the plaintiff, Anthony Varchetta, was admitted for inpatient substance abuse treatment at the defendant's treatment center, Farrell Treatment Center. The plaintiff entered both oral and written contracts, signed by Counselor Len Lefevre, to receive services and obtain certain benefits and results, including housing, food and drink, counseling, and treatment for thirty days. The admission contract also contained language promising: relief from drug and alcohol addiction, that the plaintiff would feel better about himself by having the courage to experiment with changing his life upon being discharged, and the arrangement of post-discharge housing. The plaintiff did not receive the treatment promised and was, instead, discharged after only seventeen days despite the plaintiff's objections that he was not ready to leave prior to the period stated in the admission papers.
The plaintiff commenced this action on April 26, 2005 by way of a five-count complaint alleging: (1) breach of express contract; (2) medical malpractice; (3) non-performance of a contractual duty; (4) negligent performance of contract; and (5) negligence. An amended complaint was filed on May 25, 2005, which changed the negligence allegations in count five to allege a new cause of action sounding in negligent infliction of emotional distress. Subsequently, a revised complaint was filed on July 5, 2005 alleging: (1) breach of contract; (2) non-performance of a contractual duty; and (3) intentional infliction of emotional distress. On September 26, 2005, the court granted a motion to strike the three-count complaint. Pursuant to Practice Book § 10-44, on October 5, 2005, the plaintiff filed a substitute complaint alleging (1) breach of contract; and (2) a violation of General Statutes § 42-110a, the Connecticut Unfair Trade Practices Act. On October 19, 2005, the plaintiff filed an amended substitute complaint alleging: (1) promissory estoppel; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; and (4) a violation of General Statutes § 42-110a, the Connecticut Unfair Trade Practices Act. On November 30, 2005, the defendant filed a motion to strike the four-count operative complaint, accompanied by supporting memorandum. In response, the plaintiff filed his objection to the motion to strike with supporting memorandum on December 31, 2005. Oral argument on this matter was heard on April 17, 2006.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
"Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based." Practice Book § 10-43. This court will address the merits of the motion to strike as to each count in turn.
I PROMISSORY ESTOPPEL
While both parties briefed the issue of promissory estoppel, the plaintiff conceded that he may proceed on either a promissory estoppel or a breach of contract claim, but not both. At oral argument, the plaintiff agreed to withdraw his promissory estoppel claim.
II BREACH OF CONTRACT
The defendant moves to strike the breach of contract claim on the grounds that it appears to be a case that sounds in medical malpractice and not a breach of contract by a medical professional. The defendant argues that the case involves the standard of appropriate care for a therapy professional, which would remove the claim from the realm of contract law and place it within medical malpractice because the plaintiff alleges that he was discharged, in error, thirteen days early. The plaintiff denies this is a pseudo-malpractice claim and argues that a healthcare provider and his patient are at liberty to contract for a particular result, and if that result is not obtained, as was the case here, the patient has a cause of action for breach of contract.
"Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint." Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). See Camposano v. Claiborn, 2 Conn. Cir.Ct. 135, 196 A.2d 129 (1963). "Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . ." (Internal quotation marks omitted.) Barnes v. Schlein, supra. "A breach of contract claim is a distinct claim that may arise from the same facts [as a medical malpractice action] and may exist where the physician and patient contract for a specific result." Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999). Specifically, in Camposano v. Claiborn, supra, the court found that the plaintiff had a claim of warranty because the doctor assured or warranted that a particular result would eventuate from his treatment and a different result occurred.
A fair reading of the complaint reveals that the gravamen of the suit is that the defendant breached a contractual agreement made with the plaintiff. When the complaint is construed in favor of the plaintiff to determine whether he has stated a legally sufficient cause of action, it is clear that he has alleged "[t]he plaintiff was promised, in writing, a thirty day stay covered in the admission and orientation agreements" and that both orally and in the admission contract "[t]he plaintiff was also promised . . . a thirty day stay, relief from drug and alcohol addiction, and that plaintiff would feel better about himself by having the courage to experiment with changing his life upon being discharged." (Complaint, ¶¶ 5-6.) The complaint is absolutely barren of any allegation that the defendant failed to exercise the requisite standard of care for a therapy or medical professional.
The defendant further argues that in a contract action damages are restricted to the payments made and to the other damages that flow from the breach thereof and that the plaintiff has failed to claim such damages here. In the operative complaint, the plaintiff claims that "[a]s a result of the above actions of defendant, plaintiff suffered financial loss, and loss of personal property, and loss of housing." Furthermore, the plaintiff "seeks in excess of $15,000 dollars from defendant to compensate him for his losses." Connecticut courts routinely find that this request for relief is legally sufficient because it puts the defendant on notice as to the amount and types of damages sought. Cf. Churchill Linen Service v. Miso, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 044001639 (January 4, 2006, Taylor, J.); Warren v. Gay, Superior Court, judicial district of Hartford, Docket No. CV05 4010286, April 13, 2006, Miller, J.) ( 41 Conn. L. Rptr. 206).
For the reasons discussed above, the court denies the motion to strike count two of the complaint.
III BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
The defendant argues that count three should be stricken because the plaintiff failed to state facts that would constitute acting in bad faith and that the statute of limitations on this tort action has expired under General Statutes § 52-577. The court disagrees.
The defendant concedes that "[b]ad faith is defined as . . . neglect or refusal to fulfill some duty or contractual obligation not prompted by an honest mistake. Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987)." Fleet Services Corp. v. ASA Real Estate Services, Superior Court, judicial district of Waterbury, Docket No. CV 99 0156591 (September 22, 2002, Wolven, J.). Read in the light most favorable to the plaintiff, this court finds that he has pleaded bad faith by alleging that the defendant did not honor their contract and "engaged in conduct that injured the plaintiff's right to receive some . . . benefits, and the defendant acted in bad-faith in doing so, and acted immorally, unethically, and unscrupulously." (Complaint, ¶ 11.)
Furthermore, this court finds that a motion to strike is an inappropriate vehicle for a statute of limitations defense in this instance. "A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993); see also Practice Book § 10-50. "[A] [motion to strike] might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute [of limitations defense]." Hitchcock v. Union New Haven Trust Co., 134 Conn. 246, 248, 56 A.2d 655 (1947). "[T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted. If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
In Forbes v. Ballaro, supra, 31 Conn.App. 240, the Appellate Court articulated that even though all the dates on which the alleged negligent acts occurred were pleaded, all the facts necessary to determine if the cause of action was barred by the statute of limitations were not pleaded. The Forbes court reversed the trial court's ruling granting the motion to strike because the complaint did not state facts that the plaintiffs believed would toll the statute of limitations on their claims. Id., 240; see also Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956) (in which the parties agreed that all facts necessary to the determination of whether the statute of limitations defense applied were set forth in the complaint and, therefore, there was no need to wait for an answer to determine if the statute of limitations defense could be avoided if the answer could provide no new information). In this case, there is no such agreement that this claim is beyond the statute of limitations and the plaintiff is not required to plead facts in anticipation of the defense of the statute of limitations. See Todd v. Bradley, 99 Conn. 307, 311, 122 A. 68 (1923).
For the reasons discussed above, the court denies the motion to strike count three of the complaint.
IV VIOLATION OF CUTPA
The defendant argues that the plaintiff has failed to allege facts sufficient to support a CUTPA violation because CUTPA does not apply to the providing of allegedly inadequate medical care or services by a healthcare professional. This argument is inappropriate in the present case because the plaintiff is not pleading negligence or medical malpractice on the part of the defendant. The plaintiff correctly argues that the provision of medical services falls within CUTPA's definition of trade or commerce and that a medical professional may be liable for its business practices.
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "In determining whether a practice violates CUTPA we have adopted the criteria set out . . . by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [or] (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." (Emphasis added; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, CT Page 14876 804 A.2d 180 (2002).
In the present case, the plaintiff has clearly pleaded that the "defendants acted in bad faith . . . and acted immorally, unethically, and unscrupulously." (Complaint, ¶ 11.) Our Supreme Court held in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997), that "the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel." This court must review the plaintiff's allegations of a CUTPA violation and look to the underlying nature of the claim to determine whether the medical malpractice claim has been recast as a CUTPA claim. As discussed in Section II, infra, the plaintiff has pleaded his claims against the defendant so that they may not be construed as a malpractice claim. As to the CUTPA claim, the plaintiff specifically states that the defendant "acted unfairly in the conduct of [its] business when [it] discharged plaintiff thirteen days early." (Complaint, ¶ 9.)
Furthermore, the court finds that the CUTPA count is legally sufficient where the plaintiff alleges that he suffered damages. General Statutes § 42-110g(a) provides in pertinent part that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." This provision does not distinguish between trade injuries and other types of economic injuries. Varchetta like most plaintiffs, alleges that he has suffered economic losses, including financial loss and loss of personal property, as a result of his early discharge. Assuming this allegation to be true, as the court is required to do, the plaintiff is a "person who suffers [an] ascertainable loss of money." There is, of course, an issue as to whether this loss resulted from the CUTPA violation complained of, but that is a factual issue appropriately left to the judge or jury hearing the case.
CONCLUSION
The motion to strike is denied as to counts two, three, and four. Count one has been withdrawn by the plaintiff.