Summary
holding that a plaintiff's unjust enrichment claim failed on summary judgment because it would be decided using the same standards as the contract claim which was dismissed on statute of limitations grounds
Summary of this case from Ride, Inc. v. APS Technology, Inc.Opinion
No. CV 064018350
August 11, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #149
The present case arises from a "Photoderm Vasculight treatment," which was intended to improve the texture, color and condition of the plaintiff's skin on her arms, neck, chest and shoulders. Instead, the plaintiff, Rebecca Rosenberg, alleges that she ended up with painful blisters, burns, severe itching and a rash all over her body. The plaintiff claims that the defendants, Shoreline Dermatology, P.C. (Shoreline) and Robert C. Langdon, M.D. (a licensed dermatologist), promised her a quick recovery with no down time and little discomfort, not the pain and suffering that she experienced over an extended period. The plaintiff brings her claims against both defendants for breach of contract and unjust enrichment.
The defendants move for summary judgment on the breach of contract counts (Counts One and Two) on the grounds that these are actually tort claims cloaked in contractual language. Because the plaintiff is beyond the statute of limitations to bring a medical malpractice claim, the defendants contend that her action is barred. The defendants also move for summary judgment on the unjust enrichment counts in the plaintiff's complaint (Counts Five and Six) on the ground that the signed informed consent form prevents the plaintiff from pursuing an unjust enrichment claim. The plaintiff opposes the motion for summary judgment arguing that (1) the law of the case doctrine supports the plaintiff's objection; (2) a breach of contact claim is properly pled pursuant to the facts in this case; (3) the breach of contract counts raises questions of fact; and (4) the unjust enrichment counts raise questions of fact. For reasons more fully articulated in this decision, the court grants the defendants' motion for summary judgment on both the breach of contract counts and the unjust enrichment counts.
In the operative complaint, the Second Amended Complaint, dated June 1, 2007, the plaintiff alleges that the defendants breached their July 21, 2003 contract, pursuant to which they agreed to perform a "Photoderm Vasculight treatment" in order to improve the texture, color and condition of the skin on her arms, neck, chest and shoulders in exchange for $1,400. The plaintiff essentially claims that the defendants breached the agreement by (1) allowing a technician or employee to perform the services rather than a doctor and (2) providing treatment that resulted in painful blistering, severe and painful burns, a severely painful rash, and severe itching. All of the alleged breaches asserted in the plaintiff's complaint pertain to the medical treatment the plaintiff received.
In paragraph 8 the plaintiff alleges that the defendants promised to cure her skin condition; and in paragraph 9, subsections a through f, the plaintiff alleges that the defendants breached the contract by failing to provide treatment in the manner the plaintiff anticipated.
On March 9, 2006, the defendants filed a motion to dismiss on the ground that "the plaintiff did not attach a certificate of good faith or a copy of a written expert opinion of a similar health care provider as is required under Connecticut General Statutes § 52-190a." Following an objection by the plaintiff, a reply by the defendants, and a further reply by the plaintiff, the court (Thompson, J.), issued a memorandum of decision denying the motion on the grounds that the plaintiff's complaint alleged breach of contract claims and not negligence claims. Rosenberg v. Landgon, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 064018350 (August 29, 2006, Thompson, J.). "An examination of the plaintiff's complaint reveals that in counts one and two for a breach of contact, the plaintiff alleges that she entered into a contract with the defendants . . . Based on these allegations, the plaintiff has alleged a claim in breach of contract for a specific result promised by the defendants, which was to improve significantly the condition of her skin . . . without pain and needless recovery time. Additionally, and most importantly, the plaintiff has not alleged that the breach of contract was due to the defendants' negligence in performing the treatment . . . For the foregoing reasons, it is the opinion of the court that it does not lack subject matter jurisdiction over this action due to the plaintiff's failure to file a certificate of good faith and a written opinion." Id.
To show a "good faith belief that grounds exist for an action against each named defendant," the "claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a . . . health care provider" and "shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate." General Statutes § 52-192a.
On July 16, 2008, the defendants filed an answer and special defenses. Their first special defense alleges that "[t]he plaintiff's rights of action are barred by the applicable statute of limitations, [General Statutes] § 52-584." Their second special defense alleges that "[t]he parties are bound by their express written contract to the exclusion of any implied representations alleged by the plaintiff."
On October 31, 2008, the defendants filed a motion for summary judgment as to the breach of contract counts and the unjust enrichment counts. On December 9, 2008, the plaintiffs filed an objection to the motion. The defendants appeared to argue their motion at short calendar on March 2, 2009. The court granted the plaintiff's motion to Reargue on April 22, 2009, because the plaintiff claimed that it did not know the defendants were proceeding with their motion in March. Both sides appeared through counsel at short calendar on April 29, 2009 to argue the Motion for Summary Judgment and the Objection.
Under Practice Book § 17-49, summary judgment "shall be rendered forthwith if the 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." Practice Book § 17-49; see also Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . the evidence must be viewed in the light most favorable to the opponent . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Id., 319.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). "Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute." (Internal quotation marks omitted.) Blinkoff v. OG Industries, Inc., 113 Conn.App. 1, 8, 965 A.2d 556 (2009). "[T]he only facts material to the trial court's decision on a motion for summary judgment [on the ground that the claim is barred by the statute of limitations] are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn.App. 255, 259, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004); Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996).
I.
The defendants argue that the court should grant summary judgment in their favor on the plaintiff's breach of contract claims because they are, in essence, medical malpractice claims, and are thus barred by the two-year statute of limitations. The plaintiff argues in opposition that this issue has already been decided by the court (Thompson, J.); and that "a cause of action based on breach of contract exists on its own merits." The plaintiff concedes, however, that her claims will be barred by the applicable statute of limitations if the court concludes that they are, in fact, medical malpractice claims.
General Statutes § 52-584, which governs negligence and medical malpractice actions, "requires a plaintiff to file suit within two years of discovering the injury or be forever barred from suit." Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). In contrast, General Statutes § 52-576(a), which applies to "executed" (as opposed to "executory") contracts, provides for a "six year statute of limitations." Bagoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245 (2007).
While the plaintiff's deposition reveals that she discovered her injuries in September 2003, process was not served until January 24, 2006, four months after the two-year statute of limitations elapsed.
There are four essential elements to a malpractice action. They are: "(1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant's conduct must be the cause of the plaintiff's injury." LaBieniec v. Baker, 11 Conn.App. 199, 202-03, 526 A.2d 1341 (1987). "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Seligson v. Brower, 109 Conn.App. 749, 753, 952 A.2d 1274 (2008).
It is possible, under certain circumstances, to bring a breach of contract action against a professional, such as a health care provider. For instance, "[a] physician may be subject to a claim for breach of contract arising from an agreement to perform professional services." Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). However, "tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). And, "a plaintiff may not convert [tort] liability into [contract liability] merely by talismanically invoking contract language in his complaint." Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001).
Whether an action sounds in tort or in contract is a matter that is frequently litigated in the Connecticut Courts. In fact, this area of Connecticut law has been accurately described as a morass. See Sutera v. Estate of Washton, Superior Court, judicial district of New London, Docket No. CV 556177 (March 14, 2003, Corradino, J.) (34 Conn. L. Rptr. 388, 391) (explaining these issues present a "morass" for the court to "work [its] way out of"). Determining "[w]hether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint . . . Malpractice is commonly deemed 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." Pelletier v. Galske, supra, 105 Conn.App. 81.
When the court (Thompson, J.), ruled on the defendants' motion to dismiss, it decided the issue of whether the plaintiff's claims sound in tort or in contract. In its Memorandum of Decision, Judge Thompson concluded that the plaintiff's claims asserted negligence not contract causes of action. The first question for this court, then, is whether this ruling should be treated as "the law of the case."
"The law of the case doctrine provides that when a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 130 n. 21, 788 A.2d 83 (2002). The law of the case is not a rigid rule, but rather is "a flexible principle of many facets . . ." Mac's Car City, Inc. v American National Bank, supra, 205 Conn. 259.
Generally, when deciding whether a prior ruling is "the law of the case," the subsequent court should look to the merits of the earlier decision to determine whether it was correctly decided. The court dispenses with this first step, however, because subsequent to the 2006 ruling on the Motion to Dismiss, the appellate court issued a decision which is controlling here. In 2007, the appellate court issued its decision in Pelletier v. Galske, supra 105 Conn.App. 77, instructing courts on how to consider the gravamen of the complaint when deciding whether claims against professionals are for contract or for negligence. That holding is directly applicable to the facts in this matter; and it requires this court to reconsider the allegations in the plaintiff's amended complaint in light of the articulated legal standards.
In Pelletier, the plaintiff alleged that she had retained the defendant, an attorney, to represent her in her purchase of a condominium. The plaintiff claimed that the defendant charged her a fee for professional services. Id., 79. Nonetheless, the plaintiff alleged that the defendant breached his contractual duties to her by failing to inform or advise her that her condominium was categorized as an affordable housing unit, which decreased the resale value of the unit for approximately twenty years. Id.
The plaintiff specifically alleged that "in agreeing to act as her attorney in connection with the closing, the defendant contracted `to deliver a specific result, namely to deliver title to the condominium unit at the closing with no restrictions on potential resale, but failed to do so.'" Id. The plaintiff claimed that the defendant breached his duties to her under the attorney-client contract, causing her to sustain economic damages. Id.
The Appellate Court affirmed the trial court's decision granting the defendant's motion to strike, holding that "[a] fair reading of the complaint reveals that the gravamen of the action was the alleged failure by the defendant to exercise the requisite standard of care." Id., 82-83. The court reasoned that "[n]othing in the plaintiff's complaint removes her claim from the ambit of malpractice." Id., 83.
In the instant matter, the defendants correctly point out that the plaintiff has implicated the standard of care in medical malpractice actions by alleging that the defendants "failed to provide competent medical care in that her treatment resulted in physical injuries including (1) blistering; (2) burns; (3) rashes; (4) pain; and (5) itching." (Emphasis added.) These allegations sound in medical malpractice because a fair reading of the complaint reveals that the gravamen of the action was the alleged failure by the defendant to provide adequate medical treatment and care.
It is true, that the plaintiff has carefully crafted the language in her complaint to avoid certain tort-related words, and to include terms more closely linked to contract actions. But, it is the gist of the claim, and not the mere words which determines the nature of the action. As the court noted in Pelletier, "[n]otwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach . . . the complaint sounds in negligence." (Internal quotation marks omitted.) Pelletier v. Galske, supra, 105 Conn.App. 83.
The plaintiff argues that the court should deny the defendants' motion for summary judgment because "[t]here are questions of fact raised including, but not limited to, whether or not the parties formed a contract, and, if so, the nature of that contract." However, the court does not reach this issue because it finds that the plaintiff's cause of action actually asserts a tort claim. "[T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." (Emphasis added.) Pelletier v. Galske, supra, 105 Conn.App. 82.
Moreover, in the instant matter, while the plaintiff alleges that the defendants represented to her that the Photoderm Vasculight treatment would result in significant improvement and/or cure of the plaintiff's skin diagnosis with little to no down time, these representations are not contractual promises. This court concurs with the statement of the trial court in Oberg v. Antoci, that the "[m]ere statements of opinion, probable results, or therapeutic reassurances do not qualify [as] specific promise[s] or guarantee[s] of results." Superior Court, judicial district of Waterbury, Docket No. 075378 (September 14, 1987, McDonald, J.) (2 C.S.C.R. 1042); see also Winter v. D'Andrea, Superior Court, judicial district of Litchfield, Docket No. CV 06 5001360 (January 28, 2008, Sheldon, J.) (assurances by the plaintiff's former attorney that he would diligently represent him and that he had the time and the skill to do so are "not promises to achieve specific results which, if breached, are actionable in a breach-of-contract action"); annot. 43 A.L.R.3d 1221, 1225-26 (1972) (the physician's statements giving therapeutic reassurances do not amount to a contract, and cannot form the basis for a contract").
Applying the relevant precedents, particularly Pelletier, to the facts in this case, this court concludes that the plaintiff's claims allege professional negligence. Accordingly, the court grants the defendants' motion for summary judgment as to the breach of contract counts because the claims were not brought within the required time under the applicable statute of limitations.
II
The defendants argue that they are also entitled to judgment on the unjust enrichment claims because the plaintiff alleged a breach of contract cause of action. The plaintiff argues that it is inappropriate to grant summary judgment "in connection with counts based on unjust enrichment" because this court has already determined that the plaintiff properly pled the unjust enrichment counts.
"The existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract." Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 606, 901 A.2d 720 (2006). Therefore, it is not the lack of an express contract, but rather, the " lack of a remedy under the contract [that] is a precondition for recovery based upon unjust enrichment." (Emphasis added; internal quotation marks omitted.) Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 472 n. 4, 899 A.2d 523 (2006). This court concluded that the plaintiff may not recover on her "breach of contract" claims. Therefore, it must now consider whether to grant the defendants' motion for summary judgment as to the plaintiff's unjust enrichment counts.
The plaintiff argues that there are factual issues in dispute which preclude the granting of the motion for summary judgment on the unjust enrichment claim. Typically, "[d]etermining whether the equitable doctrines of quantum meruit and unjust enrichment are applicable in any case requires a factual examination of the particular circumstances and conduct of the parties." David M. Somers Associates., P.C. v. Busch, 283 Conn. 396, 407, 927 A.2d 832 (2007); see also Gagne v. Vaccaro, 80 Conn.App. 436, 444, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004) ("the `requirements for recovery of restitution are purely factual'"). However, this court determined above that the plaintiff's breach of contract claims are, in essence, medical malpractice claims. As such, this court agrees with the reasoning of the trial court in Natale v. Meia that "it makes no sense in these circumstances to permit an implied contract action since the standards that would be turned to in order to impose an obligation by law to do justice is the very negligence standard already permitted under the malpractice theory." Natale v. Meia, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 96 0054691 (May 1, 1998, Corradino, J.) (22 Conn. L. Rptr. 114, 116-17) ("doctors or health care providers cannot be sued on an implied contract in law"); see also Rehor v. Boland, Superior Court, judicial district of New Haven, Docket No. CV 95 0378521 (January 30, 1996, Corradino, J.) (16 Conn. L. Rptr. 106, 106) ("Permitting an implied contract action and a malpractice action would merely permit the placing of a different label on what is the same thing or something that must be resolved legally in the same way"). Accordingly, the court grants the defendants' motion for summary judgment as to the plaintiff's unjust enrichment claims.
"[A]n implied in law contract is another name for a claim for unjust enrichment." Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006).
CONCLUSION
The court grants the defendants' motion for summary judgment as to the breach of contract claims because they sound in medical malpractice and are thus barred by the two-year statute of limitations on medical malpractice actions. Additionally, the court grants the defendants' motion for summary judgment as to the unjust enrichment claims because imposing a duty under an implied in law contract in these circumstances would be inconsistent with the long-standing legal objectives under Connecticut law relating to professional negligence.