Summary
declining to extend the doctrine to employment contract
Summary of this case from Bell v. Univ. of HartfordOpinion
CV156058275S
09-01-2016
Fan Chen v. Quinnipiac University
UNPUBLISHED OPINION
RULING ON MOTION TO STRIKE (#104)
LINDA K. LAGER, JUDGE.
The plaintiff Fan Chen (Chen) brought this action in four counts against the defendant Quinnipiac University (Quinnipiac), his former employer, in which he alleges that he sustained damages as a result of Quinnipiac's failure to secure permanent residency status for him. Quinnipiac moved to strike the first and third counts of the complaint. Relying on the law governing motions to strike, e.g., Lawrence v. O and G Industries, Inc., 319 Conn. 641, 648-49, 126 A.3d 569 (2015), familiarity with which is presumed, the motion is granted.
The complaint alleges that: Chen entered into employment negotiations with Quinnipiac late in 2012 and was formally offered a tenure track position as an Assistant Professor of Finance on January 12, 2013 for the 2013-2014 academic year, with a start date of August 12, 2013. During the negotiations, Chen advised Quinnipiac that he was in the United States on a six-year work visa that expired on June 30, 2014 and it would need to take steps to sponsor his permanent residency. First Count, ¶ ¶ 2-6. Chen accepted the employment offer because Quinnipiac had assured him that it would take " immediate, expeditious and appropriate steps to sponsor his permanent residency upon [his] acceptance of employment." ¶ ¶ 5, 7. Quinnipiac advised Chen that it would submit EB-1 and EB-2 visa applications on his behalf but a series of issues arose related to the visa application process. In May 2014, Quinnipiac reappointed Chen for the 2014-2015 academic year and " reiterated that it would prepare and submit certain immigration applications on [his] behalf." ¶ ¶ 10, 11. Quinnipiac then advised Chen to leave the country for a period of time to extend his work visa past the June 30, 2014 deadline, as permanent status had not yet been secured, and that it would seek to extend the deadline for him. ¶ 12. Chen left the country but issues arose regarding the extension, due to Quinnipiac's alleged failure to act in a timely manner, which were ultimately resolved. ¶ ¶ 13, 14. In January 2015, Quinnipiac failed to give Chen timely notice that it had received a " Notice of Intent to Deny (" NOID") Plaintiff's Immigrant Worker Petition from U.S. Citzenship and Immigration Services" leaving him insufficient time to cure the deficiencies in his petition. ¶ 15. Also in January, Quinnipiac notified Chen that it had withdrawn the EB-2 visa application due to its failure to follow certain Department of Labor rules and regulations. ¶ 16. When Quinnipiac learned on April 7, 2015 that the Immigration Service had denied Chen's permanent residency petition, it failed to seek a reconsideration or an administrative review. ¶ 18. On April 30, 2015, even thought it had reappointed Chen three days earlier for the 2015-2016 academic year, Quinnipiac notified Chen that his employment was terminated effective May 8, 2015 because of the immigration denial. ¶ ¶ 19, 20.
The first count alleges liability in tort for innocent misrepresentation. Since the nineteenth century, Connecticut has recognized that an innocent misrepresentation made in the course of a commercial transaction can result in strict liability in tort based on warranty law. Johnson v. Healy, 176 Conn. 97, 101-02, 405 A.2d 54 (1978). This tort was first recognized in Bartholomew v. Bushnell, 20 Conn. 271 (1850), a transaction involving the sale of horses, and extended by caselaw to other business transactions. Gibson v. Capano, 241 Conn. 725, 699 A.2d 68 (1997) (sale of property); Johnson v. Healy, supra, (sale of a new home); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 347, 232 A.2d 307 (1967) (sale of land); E.& F. Construction Co. v. Stamford, 114 Conn. 250, 158 A. 551 (1932) (Construction contract).
Both Johnson and Gibson rely on § 552C, 3 Restatement (Second) Torts (1977). The court could not locate any cases applying that section in the context of a contract for employment. Section 552C(1) provides for liability for an innocent misrepresentation when a person " in a sale, rental or exchange transaction with another, makes a misrepresentation of material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it." The commentary notes that: " The cases to which the rule of strict liability for innocent misrepresentation stated in this Section has been applied thus far have generally been confined to sale, rental or exchange transactions between the plaintiff and the defendant. This includes any sale, rental or exchange of land, chattels, securities or anything else of value, such as copyrights, patents and other valuable intangible rights." 3 Restatement (Second) Torts, § 552C, Comment c. The imposition of liability for a misrepresentation of material fact in the course of such transactions makes sense because the defendant uniquely would know, or be able to learn, the characteristics of the item for sale, rent or exchange. And the rule gives the plaintiff a hybrid remedy, derived from the law of warranty and restitution, to recover damages for " the difference between the value of what the [plaintiff] has parted with and the value of what he has received and still retains . . . [the defendant] is not liable for the benefit of the bargain or for consequential damages." Id., § 552C(2) and Comment f.
Similarly, in E.& F. Construction Co. v. Stamford, 114 Conn. 250, 158 A. 551 (1932), the defendant provided information, which it uniquely could know, about the character of the subsurface of a building site which the plaintiff relied on to submit a bid to perform excavation services.
While the foregoing discussion leads to the conclusion that the first count is legally insufficient in its entirety, the court further concludes that the allegations of the first count do not sufficiently state all the elements of the tort of innocent misrepresentation. They are: " (1) a representation of a material fact (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant, and (5) damages." Frimberger v. Anzellotti, 25 Conn.App. 401, 410, 594 A.2d 1029 (1991). Chen alleges that he was offered employment at Quinnipiac and accepted the offer of employment relying on its representation that it would take immediate, expeditious and appropriate steps to sponsor his permanent residency which it failed to do. The representation alleged here concerns Qumnnipiac's intentions and is not a representation of a past or existing fact. There is no direct allegation that the representation was untrue and that element cannot be inferred from the facts alleged in the first count since allegations that Quinnipiac failed to act do not support an inference that the representation was untrue when made. Further, the compensatory and punitive damages which Chen seeks cannot be recovered because they are benefit of the bargain and consequential damages.
The third count alleges a breach of the implied covenant of good faith and fair dealing. " To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 794-95, 67 A.3d 961 (2013). " [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . [I]t contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42, n.4, 867 A.2d 1 (2005). " Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient." Alexandru v. Strong, 81 Conn.App. 68, 81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004); see Sidorova v. East Lyme Board of Education, 158 Conn.App. 872, 892, 122 A.3d 656, cert. denied, 319 Conn. 911, 123 A.3d 436 (2015).
The plaintiff concedes that there are no specific factual allegations that the defendant acted with the requisite state of mind but maintains that the totality of the allegations of the complaint are sufficient to draw a reasonable inference that the defendant's knowing omissions rose to the level of purposeful dishonest conduct. Chen argues that while Quinnipiac represented it would and was acting expeditiously and appropriately to sponsor his permanent residency its alleged repeated omissions and failures are sufficiently purposeful conduct from which, in the requisite liberal reading of the allegations of the complaint, bad faith may be inferred.
The third count re-alleges paragraphs one through twenty of the first count and adds, in paragraph twenty-one, that the " aforesaid actions . . . constitute a breach of implied covenant of good faith and fair dealing in that Defendant acted to deprive Plaintiff of his rights to receive promised benefits by refusing to honor its commitment to him under Plaintiff's employment contracts." Chen argues that purposeful intent or action can be inferred from the following allegations: (1) that Quinnipiac represented that it would take " immediate, expeditious and appropriate steps to sponsor Plaintiff's permanent residency, " ¶ 5; (2) that Quinnipiac " continued to represent . . . that it was acting expeditiously and appropriately, " ¶ 8; (3) that Quinnipiac failed to timely file necessary paperwork on behalf of and/or communicate information to the plaintiff regarding the status of his permanent residency application, ¶ ¶ 12, 13, 15, 16; (4) that Quinnipiac failed to appeal or seek reconsideration or review of the denial of the plaintiff's permanent residency application, ¶ 18; and (5) that Quinnipiac terminated the plaintiff's employment due to the denial of the plaintiff's permanent residency application, ¶ 20.
While these allegations support an inference that on some occasions Quinnipiac may have failed to act promptly to assist Chen in securing permanent residency, that it may have been negligent in some of its efforts to assist Chen in securing permanent residency or it may have been unaware of all the requirements attendant to securing his permanent residency, they do not support an inference of purposeful dishonest conduct. And a contrary inference can be drawn from the other allegations of this count that Quinnipiac appointed, reappointed and rehired Chen to his employment position several times while his permanent residency application was pending, ¶ ¶ 6, 10, 14, 19, provided him with guidance and devised solutions to extend his work visa while the permanent residency application was being processed, ¶ 12, and secured appropriate authorizations, ¶ 14. Examined in the light most favorable to sustaining the sufficiency of the third count, the totality of the allegations simply do not support an inference that Quinnipiac's actions were motivated by bad faith.
For the foregoing reasons, the motion to strike the first and third counts is granted.