Opinion
No. 3482647
January 10, 2005
MEMORANDUM OF DECISION
The plaintiff, Triton Environmental, Inc., moves to strike the second special defense and three counts of a counterclaim filed by the defendant, Dalton Enterprises, Inc.
The plaintiff alleges in the first count of its complaint that the parties entered into a contract whereby the plaintiff would respond to and perform work in order for the defendant to respond to a notice of violation (NOV) issued by the state of Connecticut department of environmental protection (DEP). A copy of the contract is attached to the complaint. The plaintiff alleges that it performed the work, but that the defendant has failed to pay the agreed-upon price. A complaint also contains a second count sounding in unjust enrichment.
The defendant has filed an amended answer in which it has denied, inter alia, that the plaintiff performed the contract. The defendant has pleaded two special defenses. The first special defense alleges that the defendant was fraudulently induced to enter into the contract by an employee of the plaintiff. The second special defense alleges a failure of consideration. The defendant also has pleaded a four-count counterclaim sounding in breach of contract, negligence, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
The plaintiff has moved to strike the second special defense and the two counts of the counterclaim alleging negligence and misrepresentation.
The plaintiff has also moved to strike paragraph 3 of the defendant's amended answer. The defendant does not object to that portion of the motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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). "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). "For the purpose of ruling on a motion to strike, the facts alleged in a [pleading], though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "The court must construe the facts in the [pleading] most favorably to the pleader." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
I
The plaintiff moves to strike the defendant's second special defense. "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "When a single special defense is subjected to a motion to strike, only the facts alleged by that special defense are accepted as true." Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn.App. 60, 77, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808 508 A.2d 769 (1986); see Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 (1982) (facts must be taken from the pleading being attacked); Zeller v. Mark, 14 Conn.App. 651, 654 n. 4, 542 A.2d 752 (1988) (pleading under attack may not be aided by Practice Book §§ 13-22, 13-24 admissions of opposing party).
The defendant's second special defense alleges that the contract was entered into by the defendant on the advice of the plaintiff that the services it would render thereunder were required to respond to the NOV. The defendant alleges that the services rendered by the plaintiff were of no value to it and actually caused the defendant damage. Therefore, the defendant continues, the consideration the plaintiff gave the defendant for entering into the contract has failed, and the defendant is not obliged to pay the plaintiff for its services.
The plaintiff moves to strike this special defense because, the plaintiff argues, the defendant admits that consideration was given and that merely disputing the value of the services rendered does not constitute a failure of consideration.
"To be enforceable, a contract must be supported by valuable consideration . . . The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable." (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995).
In response, the defendant cites Cramer v. Burnham, 107 Conn. 216, 140 A. 477 (1928), Kessler v. Valerio, 102 Conn. 620, 129 A. 788 (1925), Waters v. Hartnett, 5 Conn. Cir. 687, 260 A.2d 615 (App.Div. 1969), and Marone v. Delfino, 11 Conn.Sup. 161 (Cm.Pl. 1942), for the proposition that the defense of failure of consideration has been recognized in cases involving the promise to pay money under promissory notes, stock subscriptions, real estate contracts and contracts for the sale of goods.
Cramer v. Burnham, supra 107 Conn. 216, was a suit on a note by the receiver of a corporation that never acquired legal existence because its certificate of organization never was filed. The note was given in payment for the balance of a subscription of stock. The corporation had never acquired legal existence because the certificate of organization never was filed, and the plan to do so was abandoned. The court held that "[t]he consideration for [defendant's] contract was the promise of the corporation to furnish him the stock, and the definite inability of the corporation to do so, by reason of the abandonment of the enterprise, results in a failure of consideration . . ." (Emphasis added.) Id., 222. "On recognized legal principles, it also follows that a note given in payment for such a subscription is subject to the same defenses and cannot be enforced as between the original parties to the contract." Id., 223. Here, by contrast, there is no allegation of "definite inability" to perform the contract.
Kessler v. Valerio, supra, 102 Conn. 620 is inapposite, as is Marone v. Delfino, supra, 11 Conn.Sup. 161. Kessler was an action on a note in which the defendant pleaded, as a special defense, that the plaintiff had taken the note without valuable consideration and, therefore, was not a holder in due course. The jury found for the plaintiff, and the trial court rendered judgment for the plaintiff on that verdict. On appeal, the defendant argued that the trial court erred in charging the jury that the burden of proof on the issue of want of consideration was, under the former Negotiable Instruments Act, on the defendant. The Supreme Court held that the trial court did not err in this charge. The holding of this case does not aid the defendant.
In Waters v. Hartnett, supra, 5 Conn. Cir. 687, the plaintiff sued for the return of a deposit on a parcel of land. The deposit was made pursuant to an oral contract for the sale of land. "The money was to be held until a building permit and a septic tank permit was effectively obtained." Id., 688. A building permit was obtained but it was revoked when the ground was found to be unfit for building or a septic tank. The lots had been represented by the defendant's real estate agent to fulfill the requirements of the town as to water content and composition of the land for building purposes. Id., 689-90. The plaintiff's action was in two counts. The first count alleged that the contract had been entered into based on the fraudulent representations of the real estate agent. The second count alleged that the contract was contingent upon the plaintiff obtaining a building permit and septic tank permit before the defendant was entitled to the deposit. The trial court found for the plaintiff on both counts. The Appellate Division of the Circuit Court affirmed. As to the second count, that court held: "The finding by the court is amply supported by the evidence that the water condition existed at the time the negotiations for sale were taking place and that the defendant refused to disclose it, to the plaintiff's injury. There was, therefore, a failure of consideration which entitled the plaintiff to a rescission and a refund of his escrow deposit." Id., 692.
No authority was cited by the court for this last statement, and Waters v. Hartnett has only been cited once by a Connecticut court in the thirty-five years since it was decided, and not for the proposition for which it is cited here. Moreover; the decisions of the former Appellate Division of the Circuit Court, a statutory court which was abolished over three decades ago, are not binding on the constitutional Superior Court. Yale New Haven Hospital v. Orlins, Superior Court, judicial district of New Haven, Docket No. CV6 10396 (May 12, 1992) ( 6 Conn. L. Rptr. 364); accord, Glazer v. The Dress Barn, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No CV 000178375 (March 30, 2001) ( 29 Conn. L. Rptr. 596). The decision in Waters was abundantly supportable by the other grounds articulated by that court. In addition, in Waters v. Hartnett, supra, the defendant was necessarily incapable of performing the delivery of the land in the condition promised. Waters v. Hartnett is, therefore, distinguishable from the instant case.
Waters v. Hartnett was also cited in a New Jersey decision. See Tobin v. Paparone Construction Co., 137 N.J.Super. 518, 349 A.2d 574 (1975).
"Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). "An exchange of promises is sufficient consideration to support a contract." Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526 (1966). "The general rule is that, in the absence of fraud or other unconscionable circumstances, a contract will not be rendered unenforceable at the behest of one of the contracting parties merely because of an inadequacy of consideration." Id., 532-33.
The defendant admits in paragraph two of its special defense that the plaintiff did provide services under the contract. Thus, the contract was not executory; that is, it was not a contract yet to be performed by the promisor, the plaintiff. See AJ Painting, Inc v. Percy, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 93 52434 (May 1993). "An executory promise or agreement is a promise to do something in the future . . ." Nicola v. Burnette, 27 Ohio.App. 3d 35, 37, 499 N.E.2d 368 (1985); cf. General Statutes § 42a-3-303(b). That the services rendered proved to be of no value to the defendant does not support a claim of lack of consideration. For this reason, the motion to strike the second special defense is granted.
General Statutes § 42a-3-303(b) provides, in relevant part: "`Consideration' means any consideration sufficient to support a simple contract . . . If an instrument is issued for a promise of performance, the issuer has a defense to the extent performance of the promise is due and the promise has not been performed . . ."
II
The plaintiff moves to strike counts two and three of the defendant's counterclaim under the economic loss rule. Additionally, the plaintiff seeks to strike the fourth count of the counterclaim, which alleges a claim under the Connecticut Unfair Trade Practices Act (CUTPA), on the basis that claims based on allegations of professional negligence are not actionable under CUTPA.
The second count of the defendant's counterclaim bears the heading "Professional Negligence" and alleges that Lorenzen Company, Inc. (Lorenzen), a wholly owned subsidiary of the defendant, received an NOV from the DEP that was based on inaccurate information the defendant had included in hazardous waste manifests it had provided DEP. The defendant consulted with Paul Simonetta (Simonetta), a duly authorized agent of the plaintiff, about how to respond to the NOV. Simonetta negligently advised the defendant how best to respond. In reliance on Simonetta's advice, the defendant entered into its contract with the plaintiff and purchased all of the stock in Lorenzen. The defendant also sustained damages in that the DEP assessed a fine against Lorenzen for $50,000; the defendant incurred substantial costs and expenses and expended substantial resources in attempting to prove to the DEP that the facts set forth in the hazardous waste manifests, as well as the documents prepared by the plaintiff, were inaccurate; and, that in order to mitigate its damages, Lorenzen was required to execute a consent agreement with the DEP in which the department made findings that Lorenzen was a large quantity generator when, in fact it is not.
That the defendant is the sole shareholder of Lorenzen is alleged in the first count of the counterclaim and appears to be inadvertently omitted in the subsequent three counts. The plaintiff makes no issue of this omission.
The third count, entitled, misrepresentation, alleges that prior to consulting with Simonetta, the defendant inquired of him as to whether he had experience dealing with the waste management enforcement division of DEP in situations similar to that faced by Lorenzen. Simonetta answered that he had such experience. This, alleges the defendant, was a false representation on which it relied in retaining the plaintiff's services, and it sustained damages as a consequence.
In support of its motion to strike these counts, the plaintiff argues that since there was an express, indeed, a written contract between the parties, the defendant is limited to the remedy for a breach of that contact. Thus, the plaintiff invokes the so-called economic loss rule. The defendant denies that the economic loss rule applies beyond actions involving goods, and that even if it does, the rule does not apply here, where the acts complained of are independent of the contract sued upon. The court agrees with the defendant that, assuming that the economic loss rule otherwise applies to actions not involving the sale of goods, the acts complained of in count two do not arise out of the contract that is sued on in count one of the counterclaim.
A discussion of the economic loss doctrine in Connecticut may begin with Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 (1998), and indeed, both parties rely on the holding of that case. In Flagg Energy, the plaintiff, which had purchased engines manufactured by the defendant, sought damages for breach of implied and express warranties, breach of contract, misrepresentation and breach of CUTPA. Id., 130. The trial court granted the defendant's motion to strike the misrepresentation and CUTPA counts based on the economic loss rule. Id., 151-52. The Supreme Court affirmed, stating that it "agree[d] with the holdings of cases in other jurisdictions that commercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentation." Id., 153, citing Duquesne Light Co. v. Westinghouse Electric Corp., 66 F.3d 604, 618 (3d Cir. 1995); Princess Cruises, Inc. v. General Electric Co., 950 F.Sup. 151, 155 (E.D.Va. 1996); General Statutes (Rev. to 1997) § 52-572n(c); 1 Restatement (Third), Torts, Products Liability (proposed final draft) § 6, p. 303 (1996); declining to follow John Martin Co. v. Morse/Diesel, Inc., 819 S.W.2d 428, 431 (Tenn. 1991).
"Since the decision in Flagg Energy, no appellate authority has addressed whether the economic loss doctrine is recognized in Connecticut and, if it is, whether the doctrine should be extended beyond cases involving the sale of goods . . . Consequently, a split has emerged among the superior courts as to whether the ruling in Flagg Energy bars tort claims for economic loss in non-product liability cases." Smith Craft Real Estate Corp. v. Handex of Connecticut, Inc., Superior Court, Judicial District of Ansonia-Milford at Milford, Docket No. CV 03 082188 (June 25, 2004) ( 37 Conn. L. Rptr. 272, 273-74) (collecting cases on each side of the issue). As noted supra, the parties here disagree whether the rule applies to the written contract here, which was for the provision of services only.
This court is persuaded by those cases that hold that the economic loss rule is not and cannot be restricted to contracts for the sale of goods. The rationale for the rule, cited in Flagg Energy, was not so restricted. "The parties are sophisticated corporations familiar with the type of services rendered, and the consequences of a mechanical failure likely to result from a failure to perform the contract as promised. The parties were free to allocate the risks, insure against potential losses, and adjust the contract price as they deemed most wise. This Court sees no reason to extricate the parties from their bargain." (Internal quotation marks omitted.) Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 153-54, quoting Princess Cruises, Inc. v. General Electric Co., 950 F.Sup. 151 (E.D.Va. 1996). Notably, while this quotation from Princess Cruises referred to the consequences of a "mechanical failure," that case did not involve a breach of a contract for goods, but of services to repair an item of machinery. Moreover, the court in Princess Cruises stated: "Almost every breach of contract involves actions that can be conceived of as a negligent or intentional tort. If left unchecked, the incessant tide of tort law would erode and eventually swallow contract law . . . [I]f tort law and contract law are to fulfill their distinctive purposes, they must be distinguished where it is possible to do so. The economic loss doctrine serves as a basis for such a distinction." Princess Cruises, Inc. v. General Electric Co., supra, 950 F.Sup. 156. This is as true in actions for breach of contract for services as it is in actions for breach of contract for goods. "When, through the negligence of one of the parties, the subject of the transaction physically injures a person, or damages the property of someone not a party to the contract, the law of tort properly provides a cause of action. But to permit a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of the parties to allocate the risks of their own transactions." Id., 155.
At rock bottom, of course, the rule must largely rest on the presumed intent of sophisticated parties to contracts, who "contract with reference to existing law, except when the contract discloses a contrary intention"; Hatcho Corporation v. Della Petra, 195 Conn. 18, 21, 485 A.2d 1285 (1985); and whose intent, when expressed in definitive language in written contracts, is a question of law, not fact. Tallmadge Bros., Inc. v. Iroquois Gas Transmission Systems, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000).
The Flagg court also cited General Statutes § 42a-2-721 (UCC § 2-721) in support of its holding. Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 155 ("By implication, the intent of § 42a-2-721 is to make actions for fraud or misrepresentation presumptively inconsistent with post-acceptance claims for breach of warranty.") In Connecticut; "[w]e have often drawn upon provisions of the UCC as a source of analogy for the emergent common law." Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 501, 646 A.2d 1289 (1994).
General Statutes § 42a-2-721 provides: "Remedies for fraud. Remedies for material misrepresentation or fraud include all remedies available under this article for nonfraudulent breach . . . Neither recission or a claim for recission of the contract for sale nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy."
The defendant cites Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995), in support of its argument that an action for misrepresentation is not barred by the economic loss rule. In Williams Ford, the plaintiffs, automobile dealerships, entered into contracts with the defendant for advertising based on inaccurate information from the defendant as to the most cost-effective method of advertising. The plaintiffs received a verdict based on negligent misrepresentation. On appeal, the defendant argued "that where the controversy concerns purely economic losses allegedly caused by statements made during the course of a contractual relationship between businesses, it is contract law, rather than tort law, that should apply. A similar argument was rejected in D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 206, 520 A.2d 217 (1987)]. There, the defendant argued that `if they [could not] be held liable in contract for their representations based on promissory estoppel, they likewise [could not) be held liable in tort for negligent misrepresentation.' D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 218. We stated that `[i]f the plaintiff's complaint otherwise contains the necessary elements of negligent misrepresentation, it survives a motion to strike even though the . . . counts grounded in promissory estoppel must fail.' Id., 218-19. It follows, therefore, that a remedy on the contract is independent of a remedy for negligent misrepresentation. The dealerships were not barred from pursuing a negligence claim solely because they also might have had a breach of contract claim." Id., 579.
However, in Flagg, the Supreme Court just as clearly stated, applying the economic loss rule, that a claim for breach of contract could not be combined with negligent misrepresentation where only commercial losses were sustained. Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 153. The defendant's argument suggests that there is unresolved tension between Flagg Energy and Williams Ford. If so, then on the one hand, "[i]t is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not." (Internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 110, 547 A.2d 10 (1998); Fallon v. Collier, 133 Conn. 370, 372, 51 A.2d 599 (1947); Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 (1945); Horowitz v. F.E. Spencer Co., 132 Conn. 373, 379, 44 A.2d 702 (1945); State v. English, 132 Conn. 573, 582, 46 A.2d 121 (1946); Scoville v. West Hartford, 131 Conn. 239, 243, 38 A.2d 681 (1944); Hanney v. Clark, 124 Conn. 140, 149, 198 A. 577 (1938); Bundy v. Capital National Bank Trust Co., 124 Conn. 309, 316, 199 A. 561 (1938). On the other hand "[c]ourts have an obligation to harmonize their case law so as to bring about consistent common law development." Smith v. Bridgeport Futures Initiative, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 326697 (August 16, 1996) ( 17 Conn. L. Rptr. 412, 413).
This court need not resolve this seeming conflict in case law because the allegations of misrepresentation in count two do not arise out of the same facts giving rise to the breach of contract.
Even those "jurisdictions that recognize the economic loss doctrine have found a number of exceptions: (1) damages that were not reasonably foreseeable at the time of contracting . . . (2) damages that far exceed the plaintiff's contractual expectations, such as damage to property other than the property that was the subject of the contract . . . (3) defendant's actions that are independent of the defendant's breach of contract; Bradley Factor, Inc. v. United States, 86 F.Sup. 2d 1140, 1146 (M.D.Fl. 2000); and (4) in negligent misrepresentation where the defendant must be in the business of supplying information and the defendant must provide this information for the guidance of others in their business relations with third parties; Gerdes v. John Hancock Mutual Life Ins. Co., 712 F.Sup. 692, 696 (N.D.Ill. 1989); see Trans States Airlines v. Pratt Whitney Canada, Inc., 682 N.E.2d 45, 48 (Ill. 1987) (discussing exceptions (1), (3) and (4))." (Citations omitted.) Worldwide Preservation Services, L.L.C. v. The IVth Shea, L.L.C., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0167154 (February 1, 2001, Tierney, J.) ( 29 Conn. L. Rptr. 1, 4-5).
The allegations of the second count are temporally and substantively distinct from those of the breach of contract count. The second count relates an earlier, separate transaction in which the defendant "consulted professionally with Simonetta, for advice on to [sic] how to respond to [the] NOV." It is Simonetta's advice, not the plaintiff's performance of its contract, that is the gravamen of that count. Thus, the duty owed and breached in the second count is not derived from the contract sued upon in the first count of the counterclaim. See Princess Cruises, Inc. v. General Electric Co., supra, 950 F.Sup. 155, quoting International Ore Fertilizer Corp. v. SGS Control Serv., Inc., 38 F.3d 1279, 1284 (2d Cir. 1994), cert. denied, 515 U.S. 1122, 115 S.Ct 2276, 132 L.Ed.2d 280 (1995); Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191-92 (6th Cir. 1994) ("We think equally true here that the `operative allegations in the claims would not arise without the existence of the putative contracts between the parties[,] [and that] [s]uch allegations therefore cannot be maintained as tort-based claims.'" Merchants Publishing Co. v. Maruka Mach. Corp. of America, 800 F.Sup. 1490, 1493 (W.D.Mich. 1992)). For this reason, the court holds that the second count of the counterclaim is not barred by the economic loss rule. Therefore, the plaintiff's motion to strike the second count of the defendant's counterclaim is denied.
However, the allegations of the third count, which claim misrepresentation, stand on different footing. That count is based on the following allegations. Prior to consulting with Simonetta, the Defendant inquired with Simonetta, a duly authorized agent of the plaintiff, whether he had experience dealing with the Waste Engineering Enforcement Division of the DEP in situations similar to that faced by Lorenzen; Simonetta represented that he had such experience, this representation was false and was made to induce the defendant to retain the services of the plaintiff, which, in reliance on Simonetta's representation, the defendant did, to its damage.
To allow an affirmative answer by a promisor to the question whether it can do a job, or has experience in doing a particular job to take a case out of the economic loss rule would, as a practical matter, seriously undercut if not destroy the rule. Moreover, the allegations of the third count, while preceding the execution of the written contract by the parties, are not substantively distinct from the breach of contract count since the plaintiff's execution of the contract was, in effect if not in word, a representation that it could perform the contract. Schaller Telephone Co. v. Golden Sky Systems, Inc., 139 F.Sup.2d 1071, 1101 n. 10 (N.D. Iowa 2001), aff'd, 298 F.3d 736 (8th Cir. 2002). This court holds that the third count of the counterclaim is barred by the economic loss rule. Accordingly, the plaintiff's motion to strike the third count of the counterclaim is granted.
The fourth count of the defendant's counterclaim alleges that the plaintiff's misrepresentation, as previously pleaded, constitutes an unfair or deceptive trade practice in violation of Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff moves to strike this count on the ground that it is a claim for professional negligence and such claims are not covered by CUTPA.
In support of its motion to strike, the plaintiff relies upon CT Page 555 Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997) and Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 717 A.2d 724 (1998). In Haynes, the Supreme Court concluded that claims of malpractice involving medical and legal professionals do not fall under CUTPA." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 34. The court did, however, provide for an exception in that "CUTPA covers only the entrepreneurial or commercial aspects of the profession . . ." Id., 35. "The entrepreneurial exception is just that a specific exception from CUTPA immunity for a well-defined set of activities [such as] advertising and bill collection, for example." (Internal quotation marks omitted.) Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 782, 802 A.2d 44 (2002).
There is a split of authority among Superior Court judges as to whether claims for professional negligence brought against professionals practicing in areas other than law and medicine can be exempt from CUTPA. See Hendriks Associates, LLC v. Old Lyme Marina, Inc., Superior Court, judicial district of New London, Docket No. 546496 (April 26, 2001) ( 30 Conn. L. Rptr. 26) (lists cases which on both sides of the issue of extending the entrepreneurial exception to other professions). This court does not read the Haynes-Beverly Hills doctrine as necessarily extending CUTPA immunity to other professions such as engineering. In Pollock v. Panjabi, 47 Conn.Sup. 179, 194-97, 781 A.2d 518, 27 Conn. L. Rptr. 316 (2000), this court held that professional negligence other than medical or legal malpractice does not necessarily fall outside of CUTPA's ambit. "Trial courts should be cautious in extending a doctrine that exempts conduct from the reach of remedial legislation such as CUTPA . . . Such a doctrine [automatically exempting non-entrepreneurial "professional negligence"] could eviscerate the legislation." (Citations omitted.) Id., 195.
For the foregoing reasons, the court denies the plaintiff's motion to strike the fourth count of the defendant's counterclaim.
In conclusion, the plaintiff's motion to strike is granted as to the second special defense and count three of the counterclaim and denied as to counts two and four of the counterclaim.
BY THE COURT
Bruce L. Levin Judge of the Superior Court