Opinion
UWYCV156026173S
11-16-2015
Darryl Pytlak, Administrator of the Estate of Victoria Pytlak v. Western Connecticut Medical Group, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #122
Barbara Brazzel-Massaro, J.
INTRODUCTION
On January 16, 2015, the plaintiff, Darryl Pytlak, as administrator of the estate of Victoria Pytlak and individually, filed a complaint against the defendants Western Connecticut Medical Group, Inc., Keith Zuccala, and Danbury Hospital. In the complaint, the plaintiff alleges the following facts: In September 2011, the plaintiff's decedent underwent gastric bypass surgery and was subsequently treated for abdominal pain by Zuccala. The plaintiff alleges that due to the defendants' negligence, the decedent developed severe medical complications after the surgery. In September 2012, she was admitted to Danbury where the defendants cared for her and administered treatment until October 4, 2012. The decedent suffered severe injuries and died as a result of the negligent care she received. Counts one, three, and five of the complaint allege wrongful death against each of the defendants, and counts two, four, and six allege a loss of consortium against each of the defendants.
On June 17, 2015, the defendants filed a motion to strike paragraphs in the complaint that alleged liability based on a theory of apparent agency. The defendants argue that the doctrine of apparent agency is not a legally cognizable theory of vicarious liability for torts. The defendants filed a motion to strike paragraphs 6, 7, 8, 9 and 10 of counts one and two, paragraphs 4, 5, 6, 7, 8, and 9 of counts three and four, and paragraphs 4, 6, 7, 8, and 9 of counts five and six of the complaint as not a viable theory of liability in Connecticut. The defendant submitted a memorandum of law on June 18, 2015 in support of the motion. The plaintiffs submitted a memorandum in opposition to this motion on August 7, 2015. The defendant filed a reply on September 1, 2015. The matter was heard at short calendar on September 14, 2015.
The defendants, in their memorandum of law, refer to this doctrine as the theory of apparent agency. Appellate Court cases refer to the doctrine as the theory of apparent authority. For purposes of consistency, this memorandum will use the term " apparent agency."
This memorandum is actually the second memorandum filed because the first memorandum was incorrectly labeled as " Memorandum of Law in Opposition to Motion to Strike" entry number 123.
DISCUSSION
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Pursuant to Practice Book Section 10-39(a)(1), when a party seeks to contest the " legal sufficiency of the allegations of any complaint, counterclaim, or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, . . . that party may do so by filing a motion to strike the contested pleading or part thereof." A motion to strike admits all well-pleaded facts. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). " 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
Whenever a party moves to strike paragraphs, rather than an entire count of a pleading, the trial court must first determine if the motion to strike is procedurally proper. In Coe v. Board of Education, supra, 301 Conn. 121 n.5, the court favorably cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn. L. Rptr. 439, 440), and quoted parenthetically the following language from that case: " Prior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only . . ." (Emphasis added.) In the present case, the defendants seek to strike the paragraphs on the ground that relief for those allegations may not be granted as a matter of law. These paragraphs fit into the exception to the general rule that a motion to strike cannot lie when it is directed toward a single paragraph of the pleading. Therefore, the court will consider the defendants' motion to strike the paragraphs of the complaint.
The Appellate Court has repeatedly declined to use the doctrine of apparent agency to hold a principal vicariously liable for the harm caused to a third person by a lack of care or skill of his agent or servant. Mullen v. Horton, 46 Conn.App. 759, 771-72, 700 A.2d 1377 (1997). Most recently, in Cefaratti v. Aranow, 154 Conn.App. 1, 45, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), a case for medical malpractice, the court held that the doctrine of apparent authority could not be used to hold a hospital vicariously liable for a surgeon's negligence. Prior to that, in L& F Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), the Appellate Court reversed the Superior Court concluding that the doctrine of apparent authority did not apply in the context of tort liability. The court explained: " Connecticut . . . has yet to apply the doctrine of apparent authority to allow for a principal to be held liable to a third person who was harmed by the tortious conduct of a person held out as the principal's agent." Id., 669.
Similarly, in Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001), the Appellate Court held that apparent authority " is not a viable ground on which to premise liability against a . . . [principal] sued for the torts of an alleged agent." Finally, in Mullen v. Horton, supra, 46 Conn.App. 759, the Appellate Court declined to recognize the doctrine of apparent authority in a tort action alleging sexual abuse, concluding that, while other states have used apparent authority to hold a principal vicariously liable for harm caused to a third party by the lack of care of his agent, Connecticut " has never used [the doctrine of apparent authority] in such a manner." Id., 772
" A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." Potvin v. Lincoln Services & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60, 78 (2010). Consequently, " the only decision for this court to make . . . is whether . . . [the previously mentioned Appellate Court cases are] binding precedent that [control] this court's resolution of the issues before it." (Internal quotations omitted.) Conn. Dep't of Pub. Health v. Freedom of Info. Comm'n, Superior Court, judicial district of New Britain, Docket No. CV-11-6009147 (March 28, 2012, Cohn, J.). The Cefaratti case has facts that are sufficiently similar to the present case, because it discusses the doctrine of apparent agency as it applies to the hospitals being vicariously liable for the acts of their surgeons. Therefore, this court's decision is bound by the Appellate Court's holding in Cefaratti, and the plaintiff has alleged a cause of action not recognized under Connecticut law.
The plaintiff argues that the court must give proper deference to the Supreme Court's decision in Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941). " Fireman's Fund Indemnity Co. held only that the facts of that case were insufficient to create apparent authority. Our Supreme Court did not hold or even mention the possibility that the doctrine of apparent authority applied only to actions in contract and was not available to actions in tort, nor, of course, did it hold to the contrary . The issue of whether vicarious liability could be used to hold a principal liable in tort was simply not an issue in the case." (Emphasis added.) Cefaratti v. Aranow, supra, 154 Conn.App. 38.
Additionally, the plaintiff asks this court to delay issuing its decision in the present case until the Supreme Court renders a decision in the appeal of the Cefaratti case. Id. However, this court cannot overlook the binding Appellate Court language: " the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent . . ." L& V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. 669. " It is axiomatic that [a] decision of [an appellate court] is controlling precedent until overruled or qualified." (Internal quotation marks omitted.) Ferrigno v. Cromwell Dev. Assocs., 44 Conn.App. 439, 443, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998). " Since our Supreme Court has not yet decided the issue, we must follow the law as it currently exists." State v. Sailor, 33 Conn.App. 409, 415 n.10, 635 A.2d 1237, cert. denied, 229 Conn. 911, 642 A.2d 1208 (1994). Therefore, the defendants cannot be held vicariously liable for Zuccala's alleged negligence on a theory of apparent agency.
CONCLUSION
Based upon the above, the court grants the defendant's motion to strike paragraphs 6, 7, 8, 9, and 10 of counts one and two, paragraphs 4, 5, 6, 7, 8, and 9 of counts three and four, and paragraphs 4, 6, 7, 8, and 9 of counts five and six of the complaint, to the extent that they allege apparent agency.