Opinion
No. CV 03 0403193 S
March 29, 2007
MEMORANDUM OF DECISION COURT TRIAL
On December 9, 2005, the court heard evidence and testimony regarding the plaintiff's claims against the defendants. The court heard testimony from the plaintiff and Kari Allioto. Ms. Allioto is employed by Assurant Health, the parent company for the defendant Fortis Insurance Company. She has been a Senior Physician Audit with Assurance since 1999. She has been employed by Fortis since 1996. Examiner. The plaintiff was not represented by counsel and has proceeded in a pro se capacity. The defendants each were represented by counsel. However, the defendant Royer was not present at trial and offered no testimony in her defense. Following the receipt of transcripts of the trial testimony, the parties submitted trial briefs. The plaintiff's brief was received on July 7, 2006. The brief of defendant Fortis Insurance Company (Fortis) was received on July 6, 2006, and the defendant Royer's brief was received on July 10, 2006.On November 27, 2006, the court heard additional argument from the parties. The defendant Fortis filed a Supplemental Post-Trial Brief on November 27, 2006. The plaintiff Gianetti filed a Supplemental Trial Brief on November 27, 2006, and also filed additional supplemental documents on November 30, 2006.
In his complaint dated May 12, 2003, the plaintiff claims that on March 11, 1996, he performed plastic surgical services for the defendant, Sheryl Royer. He asserts that, thereafter, he sent a statement to the "Time Insurance Company" (Time) in the amount of $7,840 concerning the services he performed for Royer. At the time of the submission of this statement to the Time Insurance Company, he also submitted an assignment of benefits form. He asserts that although he received partial payment from Time in the amount of $3,350.61 in June 1997, Royer and/or Time have failed to pay the remaining balance in the amount of $2,599.49.
The complaint contains five counts. There are two purported "breach of contract" counts, one of which is alleged against Royer (Count Two) and one which is alleged against the defendant Fortis Insurance Company (Fortis) (Count One). There are two quantum meruit claims. One is against Royer (Count Five) and one is against Fortis (Count Three). There is also an unjust enrichment claim against Fortis (Count Four).
In its Second Amended Answer, Special Defenses and Counterclaim dated December 7, 2005, Fortis denied the substantive allegations of the plaintiff's Complaint. In addition, Fortis set forth six special defenses, that the plaintiff's claims: (1) are statutorily barred by the time limitations set forth in General Statutes § 52-576; (2) are contractually time barred: (3) are barred by the doctrine of laches; (4) are barred by the doctrine of accord and satisfaction; (5) insufficiently plead facts to support a finding under General Statutes § 38a-316; and (6) grow out of, or are inseparably connected to his own wrongful conduct and are barred by the doctrine of "unclean hands."
Sec. 52-576. Actions for account or on simple or implied contracts.
(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.
(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any tine within three years after becoming legally capable of bringing the action.
(c) The provisions of this section shall not apply to actions upon judgments of any court of the United States or of any court of any state within the United States, or to any cause of action governed by article 2 of title 42a.
Section 38a-316 (Formerly Sec. 38-114) was repealed, effective October 1, 1998. The court believes this is a typographical error by Fortis. Therefore the court will interpret this statement as a reference to General Statutes § 38a-816, the Connecticut Unfair Insurance Practices Act (CUIPA).
Fortis has also asserted a counterclaim against the plaintiff pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq. based upon allegations against the plaintiff of immoral, unethical, unscrupulous conduct and the plaintiff's violation of General Statutes § 20-7f and the terms and conditions of the Fortis health insurance policy number 4419416. Fortis seeks judgment on Counts One, Three and Four of the complaint and also seeks judgment in its favor and an award of monetary damages on its counterclaim.
Sec. 20-7f. Unfair billing practices.
(a) For purposes of this section:
(1) "Request payment" includes, but is not limited to, submitting a bill for services not actually owed or submitting for such services an invoice or other communication detailing the cost of the services that is not clearly marked with the phrase "This is not a bill."
(2) "Health care provider" means a person licensed to provide health care services under this chapter, chapters 371 to 373, inclusive, chapters 375 to 383b, inclusive, chapters 384a to 384c, inclusive, or chapter 400j.
(3) "Enrollee" means a person who has contracted for or who participates in a managed care plan for himself or his eligible dependents.
(4) "Managed care organization" means an insurer, health care center, hospital or medical service corporation or other organization delivering, issuing for delivery, renewing or amending any individual or group health managed care plan in this state.
(5) "Co-payment or deductible" means the portion of a charge for services covered by a managed care plan that, under the plan's terms, it is the obligation of the enrollee to pay.
(b) It shall be an unfair trade practice in violation of chapter 735a for any health care provider to request payment from an enrollee, other than a copayment or deductible, for medical services covered under a managed care plan.
CT Page 4144
(c) It shall be an unfair trade practice in violation of chapter 735a for any health care provider to report to a credit reporting agency an enrollee's failure to pay a bill for medical services when a managed care organization has primary responsibility for payment of such services.
The defendant Royer has filed an answer and special defenses to Counts Two (breach of contract) and Five (quantum meruit). Apart from admitting having received services and bills that were inaccurate as to the amount claimed due, Royer left the plaintiff to his proof. Royer also filed special defenses that the plaintiff's claims: (1) are time-barred by General Statutes § 52-576; (2) are contractually time-barred; (3) are barred by the doctrine of laches; (4) are barred by the doctrine of accord and satisfaction; (5) were not properly served on the defendant Royer; and (6) are barred by the doctrine of equitable estoppel. The defendant Royer also claims as a defense (7) that the plaintiff represented to her that he would accept as payment for his services whatever sum her medical insurer paid. Further, the plaintiff would take care of collecting said insurance benefits if Royer would sign an assignment of her rights to such payment. Royer lastly claims (8) that any contract that existed between her and the plaintiff was void as a contract of adhesion; and (9) was void as a product of duress. Royer additionally has filed a counterclaim against the plaintiff alleging a violation of CUTPA.
The plaintiff has denied the special defenses of Fortis and has answered the counterclaim of Fortis. In addition, the plaintiff has filed nine special defenses: (1) Fortis has failed to state a cause of action; (2) the claim is barred by the doctrine of accord and satisfaction; (3) the claim is barred by the doctrine of waiver and estoppel; (4) Fortis lacks standing to assert a claim under General Statutes § 20-7f(b); (5) the claim is barred by the doctrine of laches; (6) Fortis has suffered no ascertainable loss; (7) the CUTPA claim is barred by the statute of limitations; (8) the claim is barred by the doctrine of unclean hands; (9) any claims based on the insurance policy submitted by Fortis are barred because the policy is dated September 1, 1998, "well after services for defendant Royer."
Facts
The court has reviewed the transcripts of the trial testimony, as well as, the evidentiary exhibits and finds the following facts. On or about March 11, 1996, Royer was involved in an auto accident and received multiple facial injuries. She was taken to St. Vincent's Medical Center in Bridgeport, Connecticut where the plaintiff performed certain plastic surgical services for Royer on an emergency basis. The plaintiff continued to treat Royer until June 10, 1996.
On March 17, 1996, several days after her accident, Royer completed and signed a "Patient Information" form (Form), which was given to her by the plaintiff. The form contained Royer's address, telephone number, date of birth and social security number. The Form also stated that Royer had an insurance policy with "Time Insurance" and that the policy number was 4419416. Royer, thereafter, signed a written form and assigned "all health insurance and other benefits from third parties to which [she was] entitled" to the plaintiff and directed that "all such payments" be made directly to the plaintiff.
Fortis, now known as Assurant Health, is a managed health care provider and a legal successor to the Time Insurance Company. Fortis was an insurer that delivered individual managed care plans in Connecticut. In 1995, Time, now Fortis, issued a Limited Benefit Hospital Medical-Surgical Policy, number 4419416 to Royer. The effective date of the policy was September 1, 1995. The policy was in effect during Royer's treatment with the plaintiff.
Assurant Health is a Wisconsin corporation providing individual, small group and specialty health insurance products that are issued by Fortis Insurance Company, John Alden Insurance Company and Fortis Benefits Insurance Company.
Page 5 of the subject policy (Ex. A) states: "Fortis Insurance's medical coverage is designed around the concept of managed health care."
The terms of the policy provided that Fortis would pay the "reasonable charge, as determined by Fortis Insurance, with respect to charges made by a physician, facility or supplier for Covered Medical Services." In determining whether a charge was reasonable, Fortis would consider the following factors: (1) the actual charge; (2) specialty training, work value factors, practice costs, regional geographic factors and inflation factors; (3) the negotiated rate with a Physician, facility or supplier; (4) the amount charged for the same or comparable services or supplies in the same region or in other parts of the country; or (5) consideration of new procedures, services or supplies in comparison to commonly used procedures, services or supplies.
The plaintiff was not a preferred provider within the network of health care providers provided by Fortis by Private Health Care Systems (PCHS) under Royer's policy. Thus, there was not a negotiated rate for the plaintiff's services to Royer. The plaintiff was entitled to receive a customary and reasonable fee for his services by virtue of the benefits assignment issued by Royer. Fortis had a set procedure in determining the reasonable and customary fee to be paid to its nonparticipating health care providers. (T. 153-56.)
On January 27, 1997, seven months following the plaintiff's last treatment of Royer, the plaintiff sent Time a bill totaling $7,840.20. On February 8, 1997 and again on April 16, 1997, Fortis sent the plaintiff written requests for information concerning the services that the plaintiff performed for Royer. The requests asked for, among other things, the plaintiff's itemized bill and operative report concerning his treatment of Royer. Additionally, Fortis asked the plaintiff to include CPT procedural codes, objective numeric codes commonly used in the medical industry to identify the medical procedures he performed on Royer. Fortis advised the plaintiff that this information was needed before it could determine whether benefits were allowed under Royer's policy. The plaintiff acknowledged that some time after April 16, 1997, he sent his operative report, dated March 16, 1996 and billing statement dated January 27, 1997, to Fortis.
On or about May 30, 1997, Time sent the plaintiff and the defendant Royer written statements explaining the benefits that were allowed under Royer's policy. The reasonable and customary fee that Fortis allowed covered only $3,350.61 of the plaintiff's balance of $7,840.20. The statements further explained that of the remaining balance ($7,840.20-$3,350.61=$4,489.39), there was a deductible of 639.89, a co-insurance payment of $1,250.00 and a remaining balance of $2,599.50. Thereafter, on or about May 30, 1997, Fortis paid the plaintiff the sum of $3,350.61, and the plaintiff accepted said payment.
On July 1, 1997, following Fortis's denial of coverage for the remaining balance of $2,599.49, the plaintiff sent a billing statement to Royer. The statement indicated that the initial balance of $7,840.20 had been reduced by the sum of $3,330.61 which was "paid by Time Insurance." This billing statement indicated that Royer's new balance was now $4,489.39. The plaintiff's billing statement indicated that if Royer paid $2,750.00 by August 28, 1997, the plaintiff would deduct $1,789.39 from her bill as a "courtesy discount."
On July 8, 1997, the plaintiff sent the "Time Appeals Process" a letter requesting information concerning Fortis's denial of benefits under Royer's policy. On July 29, 1997, Time responded to the plaintiff's letter stating that additional benefits would not be forthcoming and also stating if the plaintiff disagreed with the determination and requested a further review, he needed to submit additional information and documentation. However, the plaintiff failed to provide any additional documentation to support his claim for additional benefits under Royer's policy. By way of letter dated March 4, 2003, Fortis informed the plaintiff that any action regarding the use of the grievance procedure was far beyond the time limits for the review process.
On November 5, 1997, Royer terminated her policy with Fortis. On December 19, 2002, the plaintiff sent Royer a billing statement marked "Final Notice" indicating that Royer owed the plaintiff $7,070.39. This balance consisted of an amount due of $4,489.39 and an "interest" payment of $2,581.00.
II Claims Against Fortis A. Breach of Contract
Count One is a breach of contract claim against Fortis to recover the alleged sum of $2,599.49 "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 citations omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780, 887 A.2d 420 (2005). The plaintiff has failed to prove that he formed any agreement with Fortis, express or implied, which entitles him to recover any amounts in excess of the Policy benefits to which he was assigned, and, in fact, received. The plaintiff, as the assignee from Royer, stands in the shoes of Royer, the assignor. Mall v. LaBow, 33 Conn.App. 359, 363, 635 A.2d. 871 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1208 (1994). The plaintiff was only entitled to receive the benefits that Royer was entitled to receive under the policy. He failed to pursue the appeals process offered by Time and has not offered any evidence that the policy benefits he received were unreasonable or were arbitrarily or illegally computed. The plaintiff also testified that he was not relying "on any specific policy" in pursuing his affirmative claims for relief and special defenses including the policy issued to Royer. (T. p. 125.)
Royer assigned her right to receive benefits under the policy to the plaintiff, but there was no evidence that Royer assigned any other rights under her policy, including the right to maintain a lawsuit on her behalf to challenge the amount of benefits allowed by Fortis under Royer's policy. Royer, herself, has not challenged or disputed the amount of benefits allowed and paid to the plaintiff.
On an undisclosed date Royer signed the following statement: "I hereby assign to Charles D. Gianetti, M.D. all health insurance and other benefits from third parties to which I may be entitled. All such payments shall be made directly to Dr. Gianetti."
The plaintiff's claims against Fortis are untimely. As an assignee, the defendant stands in the shoes of the assignor. "Under the hornbook law of assignments, [t]he assignee . . . stands in the shoes of the assignor." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 228, 828 A.2d 64 (2003). As such, "[a]n assignee has no greater rights or immunities than the assignor would have had if there had been no assignment." Shoreline Communications, Inc. v. Norwich Taxi, LLC, 70 Conn.App. 60, 72, 797 A.2d 1165 (2002).
Thus, as assignee, Gianetti steps into the shoes of the assignor, having the same notice obligations as the assignor. The insurance policy provides that suit must be filed within three years from the date upon which proof of loss was due to Fortis for benefits payable under the policy. Connecticut recognizes the ability of contracting parties to include limitations for filing suits in insurance policies. See Bocchino v. Nationwide Mutual Fire Insurance Company, 246 Conn. 378, 716 A.2d 883 (1998); see also, Montiero v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979).
In this case the Policy contained a grievance procedure and lawsuit limitations clause. A written grievance had to be filed within ninety days of the event that resulted in the complaint. This grievance procedure had to be followed prior to the filing of a lawsuit based on the decision. The Policy further provided that "[n]o action can be brought after three years from the time that proof [of loss] is required to be given." The plaintiff failed to timely submit his bill for services within 90 days after he completed his services for Royer. Even if it can be said that this provision was waived by the payment of part of the plaintiff's bill, the plaintiff still failed to file the instant law suit within three years from the date that Fortis requested additional proof concerning the plaintiff's request for benefits. Fortis denied payment of the remaining $2,599.50 of the plaintiff's total balance in its statement dated May 30, 1997. On July 29, 1997 Fortis advised the plaintiff if he wanted his claim to be reconsidered he must provide written documentation not previously submitted. The plaintiff failed to respond to this request. Therefore, any suit had to be instituted on or before July 29, 2000, three years after proof of loss was required by the policy. The plaintiff, however, waited until May 23, 2003 to bring his suit. The plaintiff's claims are time-barred.
As for the plaintiff's claims pursuant to the Connecticut Unfair Insurance Practices Act (CUIPA) General Statutes § 38a-816, the legislature has committed enforcement of that chapter to the Insurance Commissioner. This is not a CUTPA claim alleging a violation of CUIPA. Our Supreme Court has not yet recognized a private cause of action solely under CUIPA. See Carford v. Empire Fire and Marine Insurance Co., 94 Conn.App. 41, 52-53, 891 A.2d 55 (2006). Accordingly, there is no private and separate cause of action based solely on CUIPA.
In addition to the plaintiff's claims being time-barred by the express terms of the insurance policy, the claims are also time-barred by the provisions of General Statutes § 52-576, which provides that no action on a simple contract or an implied contract or a contract in writing shall be brought but within six years after the right of action accrues.
B. Quantum Meruit
The plaintiff has also brought a claim for recovery based on quantum meruit. "Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737-38, 901 A.2d 1277 (2006), quoting Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n. 5, 889 A.2d 950, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006).
"A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated. In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is one in which the parties arrive at their agreement and express it in words, either oral or written." 17A Am.Jur.2d 48-49, Contracts § 12 (2004). "An express contract is a contract whose terms are stated by the parties; an implied contract is a contract whose terms are not so stated." 1 S. Williston, Contracts (4th Ed. Lord 1990) § 1:5, pp. 18-20.
"A true implied [in fact] contract can only exist [however] where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth." (Internal citations omitted.) Janusauskas v. Fichman, 264 Conn. 796, 804-05, 831 A.2d 211 (2003). Both express contracts and contracts implied in fact depend on actual agreement. Id.
An express contract, the insurance policy, existed between Fortis and its policyholder, Royer. The plaintiff, Gianetti, by virtue of an assignment from Royer, was bound by the terms of the express agreement, which in this case, are the terms of the insurance policy. Any action brought by the plaintiff as against the defendant Fortis, are subject to the time limitations set forth in the policy, as well as, section 52-576. As discussed above, the action against Fortis is time-barred.
Additionally, the contract provided that in determining whether a charge was reasonable, Fortis would consider the following factors: (1) the actual charge; (2) specialty training, work value factors, practice costs, regional geographic factors and inflation factors; (3) the negotiated rate with a Physician, facility or supplier; (4) the amount charged for the same or comparable services or supplies in the same region or in other parts of the country; or (5) consideration of new procedures, services or supplies in comparison to commonly used procedures, services or supplies. These were the terms that the plaintiff was bound to. The plaintiff had no greater rights than Royer. He failed to abide by the terms of this contract in disputing the amount of the payment he received. He is barred from further recovery against Fortis on this contract.
C. Unjust Enrichment
"Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). There is no genuine issue of fact that the alleged medical services provided by the plaintiff were received by the defendant Royer and not by the defendant Fortis. Thus, Fortis has not obtained any benefit for which the retention of payment would be unjust. The plaintiff has provided no evidence to the contrary. The plaintiff cannot prevail against Fortis under an action for unjust enrichment. See Gianetti v. Health Net Ins. Of Conn., Superior Court, judicial district of Fairfield at Bridgeport, No. CV05-401 05 18 S (Aug. 3, 2006, Hiller, J.).
III Claims Against Royer A. Breach of Contract and Quantum Meruit
As noted herein, on March 11, 1996, Royer was involved in an automobile accident and sustained facial injuries. As a result, she was taken to St. Vincent's Medical Center in Bridgeport, Connecticut where the plaintiff performed certain plastic surgical procedures for her on an emergency basis. The plaintiff continued to provide follow-up medical care until June 10, 1996. On March 17, 1996, Royer provided the plaintiff, in writing, the insurance policy information. Royer, thereafter, signed a written form and assigned "all health insurance and other benefits from third parties to which [she was] entitled" to the plaintiff and directed that "all such payments" be made directly to the plaintiff. On or about May 30, 1997, the defendant Fortis paid the plaintiff $3,350.61, which the plaintiff accepted. Thereafter, on July 1, 1997 following Fortis' denial of coverage of $2,599.49 of the total balance, the plaintiff sent Royer a billing statement indicating that the initial balance of $7,840.00 had been reduced by $3,350.61. The new balance demanded by the plaintiff from the defendant Royer was $4,489.39. The plaintiff's billing statement also indicated that if Royer paid $2,750.00 by August 28, 1997, the plaintiff would deduct $1,789.39 from her bill as a "courtesy discount." The defendant Royer made no payment to the plaintiff and on December 19, 2002, the plaintiff sent Royer a billing statement marked "Final Notice" indicating that she owed the plaintiff $7,070.39, consisting of an "amount due" of $4,489.39 and an "interest payment" in the amount of $2,581.00.
On March 17, 1996 Royer agreed in writing to that she was responsible for the payment of all fees "regardless of insurance," as well as, any reasonable costs of collection, including attorney fees. Apparently this writing is the contract that the plaintiff relies upon for his breach of contract claim. If such is the case, and the court knows of no other writing, then the plaintiff's claim must fail pursuant to General Statutes § 52-576 which limits an action for an account, or on any simple or implied contract, or on any contract in writing to six years after the right of action accrues. The plaintiff's medical services were provided to Royer on March 11, 1996. Royer agreed to pay the plaintiff's charges on March 17, 1996. However, the plaintiff's complaint, bearing a return date of June 24, 2003, is dated May 12, 2003, well past the six-year0 limitation for this type of action. Accordingly, the plaintiff's action for breach of contract is time-barred.
A contract can be implied when a patient is delivered to a physician who performs services as a health care provider. Janusauskas v. Fichman, supra, 264 Conn. 804-05. However, the time limitation of six years set forth in General Statutes § 52-576 also applies to implied contracts. "Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., supra, 96 Conn.App. 737-38. The time limitation of six years set forth in General Statutes § 52-576 also applies to implied contracts. Accordingly, the plaintiff's action sounding in quantum meruit is also time-barred.
IV The Counterclaims
Fortis asserted a counterclaim, dated December 7, 2005, against the plaintiff pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq. based upon allegations against the plaintiff of immoral, unethical, unscrupulous conduct and the plaintiff's violation of General Statutes § 20-7f and the terms and conditions of the Fortis health insurance policy number 4419416. Fortis an award of monetary damages on its counterclaim. Royer, additionally has filed a counterclaim against the plaintiff alleging a violation of CUTPA. Royer filed her answer and special defenses to the plaintiff's complaint on November 3, 2003. She then filed an amended answer, special defenses and a counterclaim dated July 20, 2005, also claiming a violation of CUTPA by the plaintiff Gianetti. As Gianetti's original action bears a return date June 24, 2003, the counterclaims of both defendants are within the three-year statute of limitations for a CUTPA action as provided in General Statutes § 42-110g(f). Additionally, on December 19, 2002, the plaintiff sent Royer a billing statement marked "Final Notice" indicating that Royer owed the plaintiff $7,070.39. This balance consisted of an amount due of $4,489.39 and an "interest" payment of $2,581.00. If the court were to consider December 19, 2002, the occurrence date for the defendants' CUTPA counterclaims, the defendants' counterclaims were also filed within the three-year limitation of action.
Sec. 42-110g(f) reads as follows:
(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
The plaintiff has filed nine special defenses: (1) Fortis has failed to state a cause of action; (2) the claim is barred by the doctrine of accord and1 satisfaction; (3) the claim is bared by the doctrine of waiver and estoppel; (4) Fortis lacks standing to assert a claim under General Statutes § 20-7f(b); (5) the claim is barred by the doctrine of laches; (6) Fortis has suffered no ascertainable loss; (7) the CUTPA claim is barred by the statute of limitations; (8) the claim is barred by the doctrine of unclean hands; (9) any claims based on the insurance policy submitted by Fortis are barred because the policy is dated September 1, 1998, "well after services for defendant Royer." General Statutes § 42-110(b)(a) provides that "no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110(g)(a) further provides that "any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages."
General Statutes § 42-110(a)(3) defines "person" as ". . . A natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity."
In determining whether a particular act or practice violates CUTPA, the Connecticut courts "have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends a public policy established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or otherwise established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]." (Internal quotation marks omitted.) Jacobs v. Healey Ford-Suburu, Inc., 231 Conn. 707, 725, 652 A.2d 496 (1995).
"All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . ." (Citations omitted; internal quotation marks omitted.) Id., 725-26. In addition, there is a three-part test for satisfying the substantial injury criterion: "[1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided." Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 484, 533 A.2d 1211 (1987).
The defendants argue that the evidence substantiates their claims that the plaintiff violated General Statutes § 20-7f(b) by "balance billing" Royer. General Statutes § 20-7f(b) provides that "It shall be an unfair trade practice in violation of chapter 735a (CUTPA) for any health care provider to request payment from2 an enrollee, other than a co-payment or deductible, for medical services covered under a managed care plan." The court agrees with the defendants.
The evidence, elicited at trial, supports that Fortis, now known as Assurant Health, is a managed health care company, who at all times relevant to this matter, provided individual managed care plans in Connecticut. The defendants argue that the plaintiff violated General Statutes § 20-7f(b) on two specific occasions. The first occasion occurred when the plaintiff violated the balance billing statute on July 1, 1997 when he sent Royer a bill seeking payment in the amount of $4,489.39. This bill requests payment for amounts in excess of the co-payment ($0) and deductible ($639.89) allowed under Royer's policy. In particular, this bill requests payment for services not covered by Royer's policy ($2,599.50) and also requests payment for coinsurance ($1,250) to which the plaintiff was not entitled. The defendants argue that the plaintiff violated the balance billing statute a second time on December 19, 2002 when he sent the plaintiff another bill requesting payment of $4,489.39 and an "interest" payment from Royer in the amount of $2,581 to which he was not entitled. The court agrees.
Kari Allioto, a senior physician audit examiner for Assurant Health testified that Fortis is an insurer that delivered individual managed-care plans in Connecticut, such as the policy issued to Royer. Royer's policy was an individual medical "preferred provider organization" policy. The plaintiff Gianetti offered no evidence to the contrary.
Plaintiff's exhibit 7.
Plaintiff's exhibit 9.
The plaintiff testified at trial that he had no legal basis for his breach of contract claim against Fortis and conducted no discovery to obtain information to substantiate his claim for breach of contract. The plaintiff denied that the policy entered into evidence was the subject policy, but has not offered any proof of his own as to what policy he was proceeding under to prosecute a breach of contract claim. The court finds the behavior of the plaintiff to be unethical and unscrupulous.
The following is an excerpt from the transcript of Gianetti's testimony at T. 99.
Q. Okay. So-so, Dr. Gianetti, can you — can you tell the court if policy number 4419416 is not the policy to which you received benefits in the amount of $3,350.61, can you tell the court what policy you're, you're relying upon?
A. I'm not relying upon any specific policy.
The following is an excerpt from the transcript of Dr. Gianetti's testimony at T. 100.
Q. Dr. Gianetti, you didn't serve any discovery in this case, did you?
A. No. Did I? I don't believe so.
Q. You didn't serve any requests for production of documents from Fortis, did you?
A. I don't believe I did.
The defendants ask the court to take note of Gianetti v. Siglinger, 279 Conn. 130 (2006) 900 A.2d 520 (2006), which affirmed the trial court's decision in Gianetti v. Siglinger, Superior Court, judicial district of Fairfield at Bridgeport, No. CV98 034 98 30 (Apr. 26, 2004, Rush, J.) [ 36 Conn. L. Rptr. 869]. This3 case differs from Gianetti v. Siglinger, supra, in that the plaintiff was not a contract provider with Fortis. As such, there was not a negotiated rate for his services to Royer. The plaintiff was entitled to accept the payment he received as an assignee of benefits under Royer's policy. This was explained to him by Fortis, as evidenced by the trial exhibits and the plaintiff has had a copy of the Fortis insurance policy in his possession since 2004 while the case was pending. From the plaintiff's numerous cases of this type, See e.g. Gianetti v. Siglinger, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 349830 (April 26, 2004, Rush, J.) 36 Conn. L. Rptr. 869; Gianetti v. Fischetti, Superior Court judicial district of Fairfield at Bridgeport, CV 980352010S (Rush, J.) aff'd 64 Conn.App. 902, 777 A.2d 213 (2001); Gianetti v. Individual Practice, Superior Court Judicial District of Waterbury, Complex Litigation Docket at Waterbury Docket Nos. (X02) CV 02-4001685, (X02) CV 02-4001686, (X02) CV 02-4001687, (X02) CV 02-4001689, (X02) CV 02-4001690, (X02) CV 02-4001691, (X02) CV 02-4001692, (X02) CV 02-4001693, (X02) CV 02-4001694, (X02) CV 02-4001695, (X02) CV 02-4001697, (X02) CV 02-4001698, (X02) CV 02-4001699, (X02) CV 02-4001700, (X02) CV 02-4001701, (X02) CV 02-4001702, (X02) CV 02-4001705, (X02) CV 02-4001707, (X02) CV 02-4001755, (X02) CV 02-4001756, (X02) CV 02-4002219, (X02) CV 02-4002220, (X02) CV 02-4002221 (Jul. 21, 2005, Schuman, J.) 39 Conn. L. Rptr. 745; Gianetti v. Mulroney, Superior Court, judicial district of Fairfield at Bridgeport, No. CV91 290495 (July 10, 1995, Tobin, J.), the plaintiff was aware of the provisions of General Statutes 20-7f regarding unfair billing practices and managed care health plans. Despite such knowledge, the plaintiff continued to assert the claims made in this lawsuit. Accordingly, this court finds that the actions of the plaintiff constitute an Unfair Trade Practice both in instituting the present action and in continuing to maintain the present action and by violating General Statutes § 20-7f.
The plaintiff testified that he has had a copy of the subject insurance policy since 2004. See. T. 125.
In Gianetti v. Siglinger, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 349830 (April 26, 2004) (Rush, J.) 36 Conn. L. Rptr. 869, a case in which the plaintiff here filed suit against the representatives of a patient to recover the unreimbursed cost of medical services, the court observed in a memorandum of decision that there were some 146 inactive cases and forty-five active cases filed by the plaintiff pro se in the Fairfield Judicial District and that many of them appeared to involve similar efforts to sue patients to recover additional balances. The court ordered the plaintiff to file a copy of that memorandum of decision in all pending cases filed by him pro se. The plaintiff has not complied with that order here and instead has appealed the decision. In any event, the plaintiff's tactics in filing multitudinous lawsuits, most of which have proven to have no merit, overburden the public courts to further the plaintiff's selfish interests and amount to an abuse of the judicial process.
Under General Statutes § 42-110(g)(d) the court may award, for a violation of CUTPA, "reasonable attorneys fees based upon the work reasonably performed by an attorney and not on the amount of recovery." The court's normal starting point for determining reasonable attorneys fees is a calculation of a so-called "Lodestar" figure which is arrived at by multiplying the number of hours4 reasonably expended in the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1993, 76 L.Ed. 40 (1983). "For each attorney, the date, the hours expended, and the nature of the work done. Hours that are excessive, redundant or otherwise unnecessary are to be excluded, and in dealing with such surpluses the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from the fee application. A prevailing party who is entitled to a fee award for a successful prosecution of successful claims is not entitled to a fee award for unsuccessful claims that were based on different facts and different legal theories." (Citations and internal quotation marks omitted.) Kirsch v. Fleet Street Ltd., 145 F.3d 149, 172-73 (2nd Cir. 1998).
"In Steiner v. J.S. Builders, Inc., 39 Conn.App. 32, 38 (1995), the court approved the following guidelines concerning calculation of attorneys fees for CUTPA violations: (1) the time and labor required; (2) novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved in and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases." Gianetti v. Siglinger, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 349830 (April 26, 2004, Rush, J.) 36 Conn. L. Rptr. 869, aff'd, 279 Conn. 130 (2006) 900 A.2d 520 (2006).
While both defendants have filed a claim for attorneys fees, neither presented any evidence of such fees during the trial. While the court clearly recognizes that attorneys fees have been incurred by the defendants, the court has no reasonable basis upon which it can calculate or award such fees.
The defendants both have also asserted, in the respective counterclaims, a claim for punitive damages. Under General Statutes § 42-110g(a), the court upon finding an unfair trade practice, "may, in its discretion, award punitive damages." "To award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others . . . or intentional and wanton violation of those rights. While CUTPA statutes do not provide a method for determining punitive damages courts generally award punitive in amounts equal to actual damages or multiples of the actual damages." Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 34 (2003). The conduct of the plaintiff, in this matter period of many satisfies that test. However, once again the court is at a loss to measure pecuniary or actual damages for the injuries sustained by the defendants due to the plaintiff's actions. No evidence was elicited at trial from the defendants regarding actual damages, compensatory damages or pecuniary loss. DiNapoli v. Cooke, 43 Conn.App. 419, 427-28 (1996). The defendant Royer who was represented at trial by her counsel, did not attend the trial or testify5 regarding her losses or damages. The defendant Fortis called one witness at trial, Kari Allioto, a senior physician audit examiner who did not offer any testimony or evidence regarding monetary damages or losses sustained by Fortis. Thus, the measure of an award of punitive damages becomes problematic. "A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA. See General Statutes § 42-110g(a). In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks and internal citations omitted.) Otto v. America Car Rental, Inc., 273 Conn. 478, 486, 871 A.2d 981 (2005). "Accordingly, when the trial court finds that the defendant has acted recklessly, `[awarding punitive damages and attorneys fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.'" (Citations omitted.) Id. It is not an abuse of discretion to award punitive damages based on a multiple of actual damages. Id.; see also, Staehle v. Michael's Garage, Inc., 35 Conn.App. 455, 463, 646 A.2d 888 (1994).
Despite the lack of evidence regarding actual damages or compensatory damages, the relief from an Unfair Trade Practice requires a meaningful response. "The pecuniary compensation for loss, detriment or injury is `damages;' actual damages are synonymous with compensatory damages and with general damages. Although the words `damage,' `damages' and `injury' are sometimes treated as synonymous, there is a material distinction between them. Injury is the illegal invasion of a legal right; damage is the loss, hurt or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered." DiNapoli v. Cooke, supra, 43 Conn.App. 427-28.
Accordingly the Court deems it appropriate, under the factual pattern herein set forth, to award the defendants whose legal rights were violated the sum of $2,500 each, as an amount of punitive damages.
Summary
Accordingly, the court enters judgment in favor of the defendant Fortis Insurance Company and the defendant Sheryl Royer on the plaintiff's complaint. The court also enters judgment in favor of the defendant Fortis Insurance Company on its counterclaim and the defendant Sheryl Royer on her counterclaim. The court awards damages in favor of Fortis as against the plaintiff Charles Gianetti in the amount of $1 plus punitive damages in the amount of $2,500 for a total of $2,501. The court awards the defendant Sheryl Royer damages in the amount of $1 plus punitive damages in the amount of $2,500 for a total of $2,501, as against the plaintiff Charles Gianetti.
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