Opinion
No. CV 05 4008583 S
October 13, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE FIRST AND THIRD SPECIAL DEFENSES AS TO COUNT EIGHT, #125
This is an action for intentional infliction of emotional distress arising out of the plaintiff's claim that the defendant improperly denied or delayed workers' compensation benefits to which the plaintiff claims he was legally entitled. Pursuant to Practice Book § 10-39, the plaintiff moves to strike the defendant's, Berkley Administrators of Connecticut, Inc., first and third special defenses as they relate to count eight of the plaintiff's complaint.
I FACTS AND PROCEDURAL HISTORY
On November 23, 2005, the plaintiff filed a nine-count complaint against the defendants, ACE Financial Solutions, Inc., ("ACE"), and Berkley Administrators of Connecticut, Inc. ("Berkley"). Counts one through five of the plaintiff's complaint are directed at Ace, while counts six through nine are directed at Berkley, asserting claims sounding in breach of contract, breach of the implied covenant of good faith and fair dealing, negligent and intentional infliction of emotional distress and violations of the Connecticut Unfair Trade Practices and Unfair Insurance Practices Acts. The action arises out of an incident which occurred while the plaintiff was employed as a corrections officer by the State of Connecticut at the Manson Youth Correctional Facility on September 24, 1992. The plaintiff claims he was attempting to restrain an inmate when he sustained injuries to his neck, back, shoulder, arm, and hand, and claims he was also diagnosed as suffering from post-traumatic stress disorder, depression, fibromyalgia, hypertension and reflex sympathetic dystrophy of his right arm. He filed a claim for his injuries under the Workers' Compensation Act, General Statutes § 31-275, et seq. The plaintiff claims in this lawsuit that the defendants failed to process properly his compensation claim.
Berkley is the third-party administrator of the plaintiff's workers' compensation claim for the State of Connecticut's insurance carrier, Illinois Union Insurance Company.
The plaintiff originally filed a claim for his injuries under the Workers' Compensation Act. After a formal hearing, the workers' compensation commissioner ordered the state to provide benefits for all of the plaintiff's claims except for one. The workers' compensation review board upheld the commissioner's order. The State of Connecticut pursuant to No. 01-07 of the Public Acts, Special Session, June 2001 (Spec. Sess. P.A. 01-07) transferred the responsibility for the plaintiff's claims to Ace. Ace then engaged Berkley to administer the claims on Ace's behalf. The plaintiff filed this lawsuit against Ace and Berkley alleging the defendants improperly denied or delayed workers' compensation benefits to which he claims he was legally entitled.
The defendants filed their answer and special defenses on February 1, 2006, and moved for summary judgment on April 18, 2007, on the grounds that the plaintiff's claims are barred in their entirety by the exclusivity provisions of the Workers' Compensation Act, citing DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005) as authority. On July 11, 2008, the court granted summary judgment on all but the eighth count, which alleges intentional infliction of emotional distress against Berkley. "With respect to count eight, which alleges intentional infliction of emotional distress, the Supreme Court, in DeOliveira, recognized that `there could be an instance in which an insurer's conduct relating to the processing a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer, and thus, a claim arising from such conduct would not fall within the scope of the act.' DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 507 . . . Although the plaintiff's allegations do not appear to rise to the level of egregious conduct, such determination involves questions of fact which are property determined by the trier of fact." (Memorandum of Decision, p. 8, Gilligan, J.)
The plaintiff has appealed the granting of the motion for summary of judgment as to ACE. The appeal is pending.
With only count eight remaining as a result of the ruling on the motion for summary judgment, the plaintiff moves to strike special defenses one and three as they relate to the remaining count. The first special defense alleges that the plaintiff fails to state a claim upon which relief may be granted. He argues that based upon the doctrine of law of the case, the court has already ruled that he has a valid cause of action as to count eight, and furthermore, this special defense is not a cognizable defense in Connecticut. The third special defense states: "If the plaintiff sustained the injuries, losses, and damages alleged in the complaint, then his sole and exclusive remedy is under the Workers' Compensation Act, Chapter 568 of the Connecticut General Statutes." The plaintiff raises the same argument of the doctrine of the law of the case, arguing that the court "has already ruled that the exclusive remedy under the Workers' Compensation Act does not preclude the plaintiff from suing on the basis of intentional infliction of emotional distress." (Plaintiff's Memorandum of Law, p. 4.)
II DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of . . . allegations of [a 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 the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . ." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[T]he court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike admits all facts well pleased; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Id., 588. "[The court] note[s] that [w]hat is necessarily implied [in a pleading] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a [pleading] challenged by [an opposing party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Where the legal grounds for such a motion are dependant upon underlying facts not alleged in the . . . pleadings, the [movant] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., supra, 268 Conn. 292-93. "A motion to strike may be filed by either party: a defendant can [move to strike] the complaint; a plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978).
"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." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d (1999). "In . . . ruling . . . on [a] motion to strike [a special defense], the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
A. First Special Defense
The First Special Defense reads simply: "Plaintiff fails to state a claim upon which relief can be granted." The plaintiff moves to strike this special defense on two grounds; first, because this court has already ruled in the memorandum of decision regarding the summary judgment motion that the plaintiff has a legally sufficient cause of action, the law of the case doctrine requires this court to adhere to that ruling and strike this special defense; second, this is not a valid special defense in Connecticut.
Thus, it is the plaintiff's argument that the first special defense should be stricken because in its Memorandum of Decision regarding the Motion for Summary Judgment the court already determined that the plaintiff has set forth a legally sufficient cause of action as to count eight, the intentional infliction of emotional distress claim. Therefore, under the law of the case doctrine, this court should strike the special defense, as this issue has already been determined.
As a preliminary matter, "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law . . . The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power New pleadings tended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case maybe treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982).
It is unclear whether the proper reading of Judge Gilligan's memorandum of decision leads to a finding that count eight is in fact a legally sufficient cause of action. All the court stated in its memorandum is that: "[a] genuine issue of material fact exists as to whether Berkley's conduct, in relation to its processing of the plaintiff's workers' compensation claim, was egregious. Although the plaintiff's allegations do not appear to rise to the level of egregious conduct, such determination involves questions of fact which are properly determined by the trier of fact." (Memorandum of decision, p. 8, Gilligan, J.) Accordingly, the court did not say that the complaint necessarily stated a valid cause of action — he said it might be sufficient if a jury finds defendant's conduct egregious.
As to the plaintiff's second argument in favor of striking the first special defense, there is a split of authority in the Superior Court as to whether a special defense is valid when it alleges that the plaintiff's complaint fails to state a cause of action. The first line of cases, relied on by the plaintiff, holds that a motion to strike a special defense asserting this claim should be granted as the special defense does not allege any facts, and is therefore conclusory and improper, citing Pozoukidis v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 346988 (February 13, 1998) [ 21 Conn. L Rptr. 382]. The line of cases that follow, finds that a special defense must also include facts alleged which support the claimed defense in order to withstand a motion to strike. In Pozoukidis v. City of Bridgeport, the court stated that "rules of pleading hold defendants to the same standard of definiteness with respect to special defenses that plaintiffs are held to in their complaints." Id. See also Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (July 21, 2004) ("a special defense must include the facts which were relied upon to withstand a motion to strike"); Russo v. Conair Corp., Superior Court, judicial district of New Haven, Docket No. CV030483600 (June 30, 2004) [ 37 Conn. L. Rptr. 416] (holding challenging the cause of action improper as a special defense because it lacked factual support); 18 Brewer Assoc., L.L.C. v. Mormino, Superior Court, judicial district of Hartford, Docket No. CVH 6792 (July 9, 2002) (granting motion to strike special defense claiming no cause of action because defendants failed to include facts in the special defense): Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089468 (June 16, 2000) [ 27 Conn. L. Rptr. 415] (holding special defense claiming no cause of action invalid for "a special defense must also include facts alleged which support the challenge in order to withstand a motion to strike").
The second line of cases, relied on by the defendant, holds that a motion to strike a special defense alleging that the plaintiff's complaint fails to state a cause of action should be denied as this special defense is legally sufficient. The leading case is Scan Associates Inc. v. Civitello Building Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 350643 (January 24, 1994), 10 Conn.L.Rptr. 646. In Scan, the court held that it was not the defendant's burden to correct deficiencies in the plaintiff's pleadings by a motion to strike, or otherwise, and therefore, the only way the defendant could put the plaintiff on notice that a claim was insufficient was by means of a special defense. Citing Robert S. Weiss Associates v. Wiederlight, 208 Conn. 525, 535, n. 5 (1986), the court observed that a defendant's claim that a complaint fails to state a cause of action can be raised either by a motion to strike or by a special defense.
The court finds the Scan Associates analysis persuasive, and considering both arguments, denies the plaintiff's motion to strike the defendant's first special defense.
B. Third Special Defense
The third special defense as it relates to the remaining count eight of the plaintiff's complaint alleges that the plaintiff's claims are barred by the exclusivity provisions of the Workers' Compensation Act. The plaintiff moves to strike this special defense asserting that it, too, is barred by the law of the case doctrine in that "this court has already determined that the plaintiff's claim of intentional infliction of emotion distress is not barred by the exclusivity provision." In support of his claim, the plaintiff cites again to the memorandum of decision regarding the motion for summary judgment.
The court does not construe Judge Gilligan's decision as conclusively establishing that the plaintiff's sole remaining count is outside the exclusivity rules of the Workers' Compensation act. On the contrary, it would appear that the summary judgment decision is premised on a question of fact in order for a determination to be made as to whether the plaintiff can prove said egregious conduct as to avoid the bar of exclusivity. Moreover, this court is not bound by the prior court's ruling as previously discussed.
Obviously this court is not ruling on the validity of the special defense claim. But as the defendant's brief notes, ". . . every decision handed down since DeOliveira, other than this case, holds that the Workers' Compensation Act is the plaintiff's exclusive remedy even where intentional infliction of emotion distress due to egregious conduct is alleged." See, e.g., Almada v. Wausau Business Ins. Co., 274 Conn. 449, 455, 876 A.2d 535 (2005); Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 708, 874 A.2d 844 (2005); Lesnewski v. General Casualty Co. of Wisconsin, Superior Court, judicial district of Hartford, Docket No. CV 030824499S, (April 4, 2006)[ 41 Conn. L. Rptr. 149]; DiNuzzo v. Bute, Superior Court, judicial district of New Haven, Docket No. CV 020469411S, (February 27, 2006); Spellman v. Southern New England Telephone Co., Superior Court, judicial district of Fairfield, Docket No. CV 044002651S, (January 24, 2006); and Costelot-Cascone v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 054007828, (October 18, 2005).
Accordingly, the motion to strike the third special defense is denied.
CONCLUSION
The motion to strike is denied as to both special defenses asserted by the defendant.