Opinion
No. CV06 500 12 78
March 25, 2008
MEMORANDUM OF DECISION
On February 10, 2006, the plaintiff, Mark Batiste, commenced this action by service of process against the defendants, Soundview Medical Associates, Eileen Smith, Timothy Bookas and Thomas LaRosa. This action arises from statements allegedly made by employees of Soundview Medical Associates (hereafter, "Soundview") to the plaintiff's employer. The plaintiff alleges that he went to the Soundview medical clinic to seek medical treatment. He arrived at the facility close to the closing time but was allowed to enter the interior office space by a Soundview staff employee. It is important to note that the plaintiff had prior dealings with Soundview in his capacity as a pharmaceutical sales representative, however, he maintains that on this day he was only there for medical treatment. The plaintiff alleges that he was feeling nauseous and went to the bathroom. After exiting the bathroom, he then walked around attempting to find a garbage can. The plaintiff alleges that he was seen by an employee of LaRosa's Cleaning and Building Supply who informed a Soundview doctor, Dr. Timothy Bookas, that the plaintiff was in the building. The plaintiff alleges that a LaRosa's employee implied to Dr. Bookas that the plaintiff was on some mind altering substance and that he was trying to hide in the office space. The plaintiff essentially alleges that his examination was cut short and he was lead out of the facility by Dr. Bookas. The plaintiff further alleges that he was not properly treated when he returned two days later to voice his concerns about his treatment and that after he left, a representative of Soundview called his employer and requested that the plaintiff not visit Soundview as a pharmaceutical sales representative in the future. The plaintiff was then terminated from his employment as a pharmaceutical sales representative.
The defendant filed a motion to strike counts 10, 11, 12, 13, 14, 15 and 16.
"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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Id.
In the tenth count of the plaintiff's first revised complaint, the plaintiff alleges that the defendants violated the Connecticut Unfair Trade Practices Act, because while engaged in trade and business, their actions towards the plaintiff were "immoral, oppressive and unscrupulous." The defendants argue that this count should be stricken because it fails to state a legally sufficient cause of action. The defendant argues that the plaintiff fails to state a legally sufficient cause of action because his factual allegations do not allege conduct based upon the entrepreneurial or business aspect of providing medical services.
"[A]lthough physicians and other health care providers are subject to CUTPA, they may be liable only for unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine . . . The practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant . . . [T]he 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. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim." (Emphasis in original; citations omitted; internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 808-09, 826 A.2d 1066 (2003). In reviewing a CUTPA claim in this context, the court "must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim." (Internal quotation marks omitted.) Id.
In the present case, the plaintiff's CUTPA allegation alleges that the defendant engaged in racial discrimination, retaliation, the releasing confidential and private information without his consent and defamation. These allegations do not center around the entrepreneurial or business aspect of the medical practice, they relate more to the professional conduct of the Soundview staff. Recently, the court, Hurley, J.T.R., held that a defendant's disclosure of privileged information did not go to the entrepreneurial or business practices of the defendant but rather spoke to whether the defendant violated a certain standard of care. See Blinderman v. Spitz, Superior Court, judicial district of New London at Norwich, Docket No. CV 06 5100716 (September 17, 2007, Hurley, J.T.R.) [5 Conn. L. Rptr. 171]. The court finds that the plaintiff's allegations do not directly go to the entrepreneurial or business aspect of the medical center, therefore, the motion to strike the tenth count is granted.
In the eleventh count of the plaintiff's first revised complaint he attempts to state a claim for civil conspiracy. The defendant argues that the motion to strike should be granted with regard to this claim because the plaintiff fails to allege facts necessary to satisfy all of the elements of a civil conspiracy claim. The plaintiff argues that he has alleged facts necessary to state a claim for civil conspiracy.
"The Connecticut Supreme Court has stated the elements of a civil action for conspiracy as: (1) a combination between two or more persons, (2) to do a criminal or wrongful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damages to the plaintiff. Williams v. Maislen, 116 Conn. 433, 437, [ 165 A. 455] (1933) . . . Thus, the action is for damages caused by an act in furtherance of a conspiracy not by the conspiracy itself. Cole v. Associated Construction Co., 141 Conn. 49, 54, [ 103 A.2d 529] (1954). A claim of civil conspiracy is insufficient unless it is based on some underlying cause of action. Litchfield Asset Management v. Howel, 70 Conn.App. 133, 140, [ 799 A.2d 298,] cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). A cause of action may lie for the damage resulting from the conspiratorial behavior, such as fraud, but not for the conspiracy itself, Id. No damages are awarded based on conspiracy apart from the damages assessable for the resulting cause of action. Id. at 146. Therefore, civil conspiracy ought not be alleged in a separate count independent from the underlying cause of action, such as for assault, fraud, etc. because it is merely a method of committing the underlying cause of action." Noll v. Hartford Roman Catholic, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV02 4000582 (July 9, 2007, Beach, J.).
In the present matter the plaintiff has alleged civil conspiracy as a separate count, independent from the underlying cause of action. The damages for whatever conspiracy may or may not have existed would be taken into account when calculating the damages for the underlying claim. The civil conspiracy claim should not have been filed as a separate count. Therefore, the motion to strike the eleventh count is granted.
In the twelfth count of the plaintiff's first revised complaint he alleges a cause of action under General Statutes § 46a-58(a). This section provides that: "It shall be discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the depravation of any rights, privileges, or immunities secured or protected by the Constitution or laws of this state, or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability." The defendant argues that this section does not provide for a private cause of action. The plaintiff maintains that a 1998 change to General Statutes 46a-100 allows for a private right of action. The plaintiff further argues that General Statutes § 52-251b provides for a private cause of action for violations of § 46a-58.
General Statutes 46a-100 provides in relevant part that: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in Superior Court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ." The plaintiff maintains that the change in the heading from "Discriminatory employment practice. Cause of action upon release from commission" to "Discriminatory practice. Cause of action upon release from commission" means that the legislature intended for there to be a private right of action.
General Statutes 52-251b provides in relevant part that: "In any civil action to recover damages for injury to person or to real or personal property arising out of a violation of section 46a-58, the court may allow the prevailing party his costs, together with a reasonable attorneys fee to be taxed by the court . . . The provisions of subsection (a) of this section shall not be deemed: (1) To create a new cause of action against any individual . . ."
In recent years, on several occasions, courts of this state have held that § 46a-58 does not give rise to a private cause of action. See Alungbe v. Board of Trustees of Connecticut State University, United States District Court, Docket No. CV0503 (D.Conn, September 4, 2003); Garcia v. St. Mary's Hospital, 46 F.Sup.2d 140 (D.Conn. 1999). Both of these decisions were made after the change to the heading of § 46a-100, which the plaintiff argues gave him the right to bring a private cause of action under § 46a-58. Section 46a-100 does allow the plaintiff to bring a private cause of action once he has obtained a release from the Connecticut Commission on Human Rights and Opportunities, but nowhere in that section does it specifically allow the plaintiff to bring a private cause of action under § 46a-58. The court interprets the statute to mean that, after obtaining his release, the plaintiff may bring a private cause of action but should base it on the underlying claims that the plaintiff has already alleged in this complaint. Furthermore, § 52-251b was enacted after § 46a-58 and specifically states that it is not meant to create a new cause of action against any individual. If there did not already exist a cause of action under § 46a-58, § 52-251b was not meant to create one. Therefore, the motion to strike the twelfth count is granted.
In the thirteenth count of the plaintiff's first revised complaint he alleges that the defendant, Soundview, violated General Statutes § 46a-60(a)(5) by aiding, abetting, inciting, compelling or coercing the plaintiff's employer to terminate the plaintiff based on his race. The defendant argues that the motion to strike this count should be granted because the plaintiff does not allege underlying facts necessary to prove that there was discrimination by the plaintiff's employer. The plaintiff contends that parties besides the plaintiff's actual employer can be liable and that the plaintiff has pled facts sufficient to show he was directly discriminated against and retaliated against by Soundview as to his employment at Biovail Pharmaceuticals, Inc.
General Statutes 46a-60(a)(5) provides in relevant part that: "It shall be a discriminatory practice in violation of this section [f]or any person, whether an employer or employee or not, to aid, abet, incite, compel, or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so."
In order for this claim to succeed the plaintiff must establish that the defendants aided, abetted, incited, compelled or coerced Biovail into a racially motivated discriminatory practice or attempted to make Biovail engage in discriminatory employment practices. The plaintiff does not allege that Biovail engaged in a discriminatory employment practice, nor does he allege that the defendants attempted to make them do so. The plaintiff, in his complaint, alleges that: "Soundview and Smith then proceeded to make a false and malicious complaint to Batiste's employer, Biovail, accusing Batiste of hiding in Soundview's office, and indicating that they did not want Batiste in Soundview's offices." In the complaint the plaintiff further alleges that the complaint to Biovail was made because the defendants wanted to cause the plaintiff to lose his position at Biovail, and that their motivation for this was based on race. In the portion of the complaint in which the plaintiff alleges the facts underlying his claims he never alleges that Biovail engaged in a discriminatory employment practice, nor does he ever allege that the defendants attempted to get Biovail to do so. The complaint alleges that the defendants were racially motivated, but does not allege that they attempted to make Biovail racially motivated or that Biovail was racially motivated in its decision. The complaint alleges that the plaintiff was terminated by Biovail based on the complaint by Soundview, not based on his race.
The plaintiff alleges that the defendant Soundview violated General Statutes § 46a-60(a)(5) by aiding, abetting, inciting, compelling or coercing the plaintiff's employer to terminate Batiste based on his race. This is a legal conclusion that is not supported by the underlying factual allegations. Therefore, the court grants the motion to strike the thirteenth count.
In the fourteenth count of the plaintiff's complaint the plaintiff alleges that the defendant, Eileen Smith, violated § 46a-60(a)(5) by aiding, abetting, inciting, compelling or coercing the plaintiff's employer to terminate Batiste based on his race. The plaintiff has alleged the same underlying facts to support this claim as he alleged in his thirteenth count. Therefore, following the same reasoning as just discussed regarding the motion to strike the thirteenth count of the complaint, the court grants the motion to strike the fourteenth count.
In the fifteenth count of the plaintiff's first revised complaint the plaintiff alleges that the defendant, Soundview, discriminated against the plaintiff in a place of public accommodation based upon his race in violation of General Statutes § 46a-64(a)(1). The defendant argues that the motion to strike should be granted because § 46a-64(a)(1) is a penal statute that does not provide for a private cause of action. The plaintiff argues that under § 46a-100 there exists a private right of action.
General Statutes 46a-64(a)(1) provides in relevant part that: "It shall be a discriminatory practice in violation of this section [t]o deny any person within the jurisdiction of this state full and equal accommodation in any place of public accommodation, resort or amusement because of race . . ."
General Statutes 46a-64(c) provides that: "Any person who violates any provision of this section shall be fined not less than twenty-five or more than one hundred dollars or imprisoned not more than thirty days." This statute has been found to be penal in nature on several occasions and not to afford a private right of action. See Wright v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. 570863 (February 12, 1998, Devlin, J.); McPhail v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. 054506 (February 25, 1999, Thompson, J.). The court in Wright noted that on many occasions the legislature had provided express language creating a private right of action and in the case of this particular statute the legislature did not provide any language indicating its desire for a private right of action and, therefore, it should not be implied by the court. See also Brewer v. Wilcox Trucking, Inc., Superior Court, judicial district of New Britain, Docket No. 479546 (September 26, 1997, Stengel, J.) ("[p]rivate causes of action under our anti-discrimination statutes are provided in limited circumstances such as General Statutes 46a-98 . . . 46a-99 . . . 46a-100"). This court finds the past decisions of the Superior Court persuasive and, accordingly, grants the defendant's motion to strike count fifteen.
In the sixteenth count of the plaintiff's first revised complaint the plaintiff alleges that the defendants, Dr. Timothy Bookas and Eileen Smith, discriminated against the plaintiff in a place of public accommodation based upon his race in violation of General Statutes § 46a-64(a)(1) . The defendants argue that the motion to strike should be granted because § 46a-64(a)(1) is a penal statute that does not provide for a private cause of action. The defendants further argue that Bookas and Smith cannot be sued under this statute because they are not a place of public accommodation. The plaintiff argues that under § 46a-100 there exists a private right of action and that the statute was meant to include the defendants.
General Statutes 46a-64(a)(1) provides in relevant part that: "It shall be a discriminatory practice in violation of this section [t]o deny any person within the jurisdiction of this state full and equal accommodation in any place of public accommodation, resort or amusement because of race . . ."
Following the same reasoning as just discussed regarding the motion to strike count fifteen, the motion to strike count sixteen is granted. Furthermore, the motion to strike count sixteen of the complaint is granted on the ground that these particular defendants are not a place of public accommodation. General Statutes § 46a-63(1) provides that: "Place of public accommodation, resort or amusement means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent." This definition clearly does not include an individual. Therefore, the motion to strike the sixteenth count is granted based on the fact that the statute does not provide for a private right of action and because these particular defendants are not included within the jurisdiction of the statute.
In summary, the motion to strike counts 10, 11, 12, 13, 14, 15 and 16 of the plaintiff's first revised complaint is granted.