Opinion
No. CV 08-5023211-S
November 3, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is a two-count complaint against the defendant Benjamin Levine brought by a nursing home at which his aunt became a resident. In the first count the plaintiff claims that the defendant breached the agreement with the plaintiff nursing home because he failed to use his aunt's assets to pay for her care, timely apply for medicaid assistance, and promptly take the steps necessary to establish her medicaid eligibility. The second count sounding in promissory estoppel alleges that the plaintiff relied on the defendant's promises that he would use his aunt's assets to pay for her care and establish her medicaid eligibility.
-I-
On July 6, 2009, the defendant filed this motion for summary judgment, with respect to both counts, on the ground that he cannot be held financially liable for his aunt's care.
The following facts appear to be undisputed. The plaintiff, Hebrew Health Care, Inc., operates a licensed chronic and convalescent facility. The defendant, Benjamin Levine, served as power of attorney for his aunt, Grace Levine and on April 19, 2006, the defendant's aunt was admitted to the plaintiff's facility. During the admissions process, the defendant signed the last page of the "Admission and Financial Agreement" (agreement). The first page of the agreement identified the defendant as the "Resident's Representative" (representative) and his aunt, Grace Levine, as the "Resident." At the time of signing, the words "BENJAMIN LEVINE, ESQ, Nephew/P.O.A." were printed below the signature line.
Part II, "I" and part II "J" of the agreement outline the representative's and resident's responsibilities with respect to applying for the receiving medicaid assistance, and require that they "promptly apply for, or . . . assist the [plaintiff] as necessary to establish eligibility, or otherwise to apply for any applicable [m]edicare or other insurance benefits available to the [r]esident." Additionally, part II "J" also provides that they are responsible for, inter-alia, the following: making a "prompt" application for medicaid assistance to the Connecticut Department of Social Services (DES) when the resident's assets are reduced to $10,000; "promptly and expeditiously" establishing and maintaining eligibility for medicaid assistance, including reducing and keeping the patient's assets within the allowable limits for such eligibility; and, during the pendency of any medicaid application, paying the resident's monthly income to the plaintiff.
Part VII "K" of the agreement provides that the resident is responsible for court costs and attorneys fees in the event that the plaintiff seeks to enforce its rights pursuant to the contract. Moreover, part VIII provides that the representative has legal access to the resident's resources and agrees to pay the plaintiff for services rendered, except that the representative is not personally financially liable for the care provided by the plaintiff.
The defendant filed a medicaid application with the department on behalf of his aunt. Although the application was approved on August 24, 2007, the department denied assistance from February 2006 through June 2007 on the grounds that the defendant's aunt did not reside in a nursing home and that the value of her assets exceed the eligibility limits during those months. As a result of this denial, the department did not provide financial assistance for the care of the defendant's aunt during the months of April 2006 through June 2007. After applying any payments made, there remains a balance due and owing to the plaintiff for services rendered to the defendant's aunt during those months.
-II-
The defendant claims that he has no financial liability for his aunt's care that with respect to the first count, he was not a party to the agreement and that he merely signed in his capacity as power of attorney. In the alternative, he asserts that, even if he signed the agreement in his personal capacity, its terms expressly provide that he cannot be held financially liable for his aunt's debt to the plaintiff. As to count two, the defendant argues that, as a matter of law, the plaintiff cannot recover under a promissory estoppel claim when an enforceable agreement exists between the parties.
The plaintiff argues that there is a genuine issue of material fact with respect to whether the defendant signed in his personal capacity. The plaintiff asserts that it does not seek to hold the defendant personally liable for his aunt's debts, but rather seeks to recover damages arising from the defendant's alleged failure to comply with his obligations pursuant to the agreement. Finally, the plaintiff argues that whether the defendant's representations rose to the level of a promise, actionable under the doctrine of promissory estoppel, presents a material question of fact that remains to be resolved.
-III-
While the agreement clearly states that the defendant has no financial liability for his aunt's debts the plaintiff makes it clear that it is not seeking to hold the defendant personally liable for the care provided to his aunt, but to enforce the defendants duty to, inter alia, use his aunt's assets to pay the debt due to the plaintiff, make a prompt and expeditious application for medicaid assistance, and promptly provide all information that might be requested by the department in accordance with any established deadlines. It claims that the defendant breached this duty, and as a result, it was damaged because it did not receive full payment for the care it provided to his aunt and its damages are measured by the loss of medicaid payments it would have received, but for the defendant's failure to comply with the agreement.
Defendant's first argument is that, as a matter of law, he was not a party to the agreement. Although the defendant's signature line indicated that he was signing in his capacity as power of attorney and that he was Grace Levine's nephew, the first page of the agreement identified him as her representative. By signing the agreement, the defendant agreed that he was the representative under the agreement.
The parties do not contest that the agreement imposes various obligations on the defendant in his capacity as the representative and there is no reason why plaintiff may not assert an action against the defendant based on the alleged failure to adhere to these obligations. See Sunrise Healthcare Corp. v. Azarigian, supra, 76 Conn.App. 808 (nursing home admissions agreement expressly absolved defendant from personal liability for resident's debt, however, defendant's failure to use funds in accordance with terms of the agreement gave rise to valid breach of contract claim). See also Glastonbury Healthcare Center, Inc. v. Esposito, judicial district of Hartford, Docket No., CV 01-0811032 (June 23, 2008 Satter, JTR) [45 Conn. L. Rptr. 671] ("liability of [the defendant] in breach of contract is not based upon the promise to answer for the debt of [the nursing home resident], but rather for his failure to meet his entirely separate responsibility as a responsible party," by failing to maintain his mother's medicaid eligibility).
Although defendant did file a medicaid application on behalf of his aunt, which was ultimately approved, the benefits were denied during the relevant months for two reasons; the first, that the value of Grace Levine's assets exceeded the eligibility amount, and the second, that she was not residing in a nursing home. Issues of fact that remain to be resolved as to whether the defendant actually failed to assume his responsibilities under the agreement, and whether such failure, if any, resulted in the benefit denial; whether the defendant failed his obligation to use his aunt's assets to pay her debts to the plaintiff.
-IV-
Defendant argues that summary judgment is appropriate with respect to the second count because a promissory estoppel claim is unavailable when a plaintiff simultaneously alleges the existence of a written contract and secondly that the plaintiff's promissory estoppel claim is "untenable" because it is based on alleged promises that contradict the written agreement. Again plaintiff argues that summary judgment is not appropriate because, the issue of whether the defendant's representations rose to the level of an actionable promise is a question of material fact.
It may well be that the promissory estoppel claim has been improperly pleaded in this motion defendant is really attacking the sufficiency of the allegations of the second count which should be addressed by a motion to strike, because it may be amendable. See Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
-V-
For the foregoing reasons, the defendant's motion for summary judgment is denied with respect to count one because there are genuine issues of material fact that remain to be resolved regarding the defendant's contractual liability. Defendant's motion with respect to count two is denied because, any insufficiency of the count should be addressed through a motion to strike.