Opinion
No. CV 09 4043516
December 3, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#102)
The statute of limitations in a libel action typically begins to run on the date the defamatory statements are published. This libel action raises an important question of first impression in Connecticut regarding whether allegedly libelous postings on the Internet should be subject to the multiple publication rule or the single publication rule for purposes of establishing the publication date.
This is an action brought by a former Connecticut licensed physician, Daniel Hechtman, against, inter alia, the commissioner of the Department of Public Health ("commissioner" or "DPH") seeking damages for libel, negligence, negligent infliction of emotional distress, violations of 42 U.S.C. § 1983, and breach of contract. The gravamen of Hechtman's complaint is that the commissioner damaged him by improperly characterizing a settlement agreement, which resolved an investigation by DPH against Hechtman as discipline on DPH's website.
The commissioner moves to dismiss the action, claiming it is barred by sovereign immunity and the applicable statutes of limitation. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
Both the sovereign immunity and the statute of limitation claims raised by the commissioner here may be adjudicated by way of a motion to dismiss. First, it is well-established that "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007).
Second, the statute of limitation claims raised by the commissioner here fall within an exception to the general rule that a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. This exception recognizes that, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
In this case, although the statute of limitations claims raised by the commissioner pertain to various common-law causes of action that existed at common law, such causes of action could not generally be brought against the state or a state official because of the bar of sovereign immunity. The State of Connecticut, however, through the enactment of General Statutes § 19a-24, has waived its sovereign immunity with respect to claims brought against the commissioner in his official capacity. Well-established principles of sovereign immunity require that such claims must be brought within the specific confines and strictures of the state's waiver of sovereign immunity, which, would implicitly include the requirement that the claims be brought within the applicable statute of limitations period. Accordingly, because the commissioner's statute of limitation claims implicate the state's sovereign immunity, the court concludes that they may be raised pursuant to a motion to dismiss. For the reasons set forth below, the motion is granted in part and denied in part.
Hechtman has not objected to the commissioner raising the statute of limitation claims by way of a motion to dismiss.
I. FACTUAL AND PROCEDURAL HISTORY
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Emphasis added; internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "The motion to dismiss . . . invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
In the present case, the commissioner relies upon the pleadings and an affidavit of an employee of DPH. The plaintiff, in opposition, has submitted an affidavit of his counsel. The material facts relevant to the commissioner's motion to dismiss, however, are not in dispute.
This action arises out of an investigation the commissioner brought against Hechtman to determine if Hechtman's actions and/or inactions contributed to the death of a patient. While the investigation was pending, Hechtman's license to practice medicine expired. Hechtman and the commissioner then entered into a written settlement agreement that Hechtman would not attempt to renew his license and, in exchange, the commissioner would drop the investigation. On July 25, 2006, after both had signed the agreement, the commissioner published the agreement on Hechtman's physician profile on DPH's website under the discipline category. As soon as Hechtman learned this, he asked the commissioner to correct this characterization.
Subsequently, the commissioner agreed to remove the agreement from Hechtman's physician profile for the purposes of reviewing whether the agreement should have been included in the discipline section. After review, including obtaining an outside opinion from the United States department of health and human services, the commissioner determined the report was correctly published. As a result, the agreement was republished under the discipline section of Hechtman's profile on July 31, 2008.
Hechtman alleges that, although the agreement included a provision providing that the agreement would be published on DPH's website, as a result of it being published as discipline, his licensing status as a physician in other states has been adversely impacted. Specifically, he alleges that: (1) his license in New Jersey was suspended on November 21, 2007; (2) New York instituted an investigation on September 29, 2006 to determine whether Hechtman had been disciplined in Connecticut; and (3) Pennsylvania began an investigation to determine if Hechtman had been disciplined in Connecticut and on July 24, 2008, Pennsylvania disciplined Hechtman for failing to report out-of-state discipline to the Pennsylvania authorities.
The complaint contains seven counts against DPH, and the commissioner in both his official and individual capacities. The first count alleges a violation of General Statutes § 20-13j, which outlines the duties and responsibilities of the commissioner concerning physician profiles. The remaining counts are for libel, negligence, deprivation of due process, negligent infliction of emotional distress, breach of contract and injunctive relief.
On April 27, 2009, the defendants moved to dismiss. The motion to dismiss asserts that all the claims directly against DPH are barred by sovereign immunity. Further, the defendants assert that the counts for negligence, negligent infliction of emotional distress and libel are all barred by their applicable statutes of limitation. The defendants also contend that the count alleging breach of contract is really a claim for negligence merely worded as a contract claim, and thus, is barred by the negligence statute of limitations. Finally, the defendants move to dismiss, on sovereign immunity grounds, count seven of Hechtman's complaint, which seeks injunctive relief.
II. DISCUSSION A. Although sovereign immunity does not bar Hechtman's individual capacity claims, the plaintiff withdrew those claims at oral argument.As noted above, the named defendants in this case (on the face of the summons and in the body of the plaintiff's complaint) are DPH, the commissioner, Robert Galvin in his official capacity, and the commissioner, Robert Galvin in his individual capacity. The commissioner first moves to dismiss all of the individual capacity claims as barred by the doctrine of sovereign immunity. Specifically, the commissioner contends that because General Statutes § 19a-24 waives the state's sovereign immunity only with respect to suits against the commissioner in his official capacity, sovereign immunity bars any claim against the commissioner in his individual capacity. This assertion, however, lacks merit because it confounds the differences between official capacity and individual capacity suits.
It is well-established and virtually beyond the need for citation that, under the doctrine of sovereign immunity, the state cannot be sued without its consent unless the case falls within one of the recognized exceptions to the doctrine. See, e.g., Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). It also true that a suit against a state official in his official capacity is a suit against the state itself and is barred by the doctrine of sovereign immunity. Miller v. Egan, 265 Conn. 301, 313, 808 A.2d 549 (2003).
If, however, a state official is sued in his or her individual capacity, then sovereign immunity would not bar those claims. Miller v. Egan, supra, 265 Conn. 307; Martin v. Brady, 261 Conn. 372, 374, 802 A.2d 814 (2002). In other words, a state official sued in his individual capacity does not enjoy the protection of sovereign immunity because such a suit is not a suit against the state at all. Although a state official like the commissioner who is sued in his individual capacity may enjoy certain statutory immunities from suit; see, e.g., § 19a-24(b) and General Statute § 4-165; these immunities do not arise out of the common-law doctrine of sovereign immunity but instead exist as a matter of legislative grace.
Thus, the commissioner's assertion that sovereign immunity bars any individual capacity claims against the commissioner is incorrect. Nevertheless, at oral argument in this matter, Hechtman agreed to withdraw all individual capacity claims in this case and rely solely upon his official capacity claims against the commissioner.
B. The commissioner's claim that sovereign immunity bars suit against DPH is without merit.
The state next argues all claims against DPH, including the entire first count, are barred by the doctrine of sovereign immunity because General Statute § 19a-24 does not waive sovereign immunity as to the department but only as to the commissioner in his official capacity. This argument, however, is built upon a distinction without a difference. The department is not a real person, of course, and can act only though its commissioner or members of his staff.
More importantly, as noted above, a suit against a state official in his official capacity is a suit against the state itself. Likewise, a suit against a state agency is a suit against the state itself. Thus, regardless of the precise nomenclature employed by § 19a-24, the provision waives the state's sovereign immunity and authorizes an action against the state for money damages for acts and omissions of the commissioner or any member of his staff.
The court agrees that it would have been more artful and consistent with the precise language of § 19a-24 for Hechtman to have made all of his allegations directly against the commissioner in his official capacity rather than against the "department." Such a failure, however, does not doom these allegations and the court will interpret the allegations against the department to be against the commissioner in his official capacity.
C. The commissioner's claim that the state's waiver of sovereign immunity in § 19a-24 does not include authorization to sue the state for intentional torts is not persuasive.The state next contends that every count other than counts three and five of Hechtman's complaint, which allege negligence, must be dismissed because the state's waiver of sovereign immunity in § 19a-24 extends only to claims of negligence and does not authorize claims for intentional torts. The court is not persuaded.
The question of whether the § 19a-24 waives the state's sovereign immunity for intentional torts is one of statutory interpretation. "When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).
The commissioner's brief is devoid of any analysis of the actual language of § 19a-24. Nowhere in the provision is there any explicit language that the state waives sovereign immunity only for claims sounding in negligence. Indeed, the statute does not even use the term "negligence." Instead, the state's waiver of sovereign immunity is broadly drafted to include " any claim for damages in excess of seven thousand on account of any official act or omission of the commissioner . . . or any member of [his] staff."
The court, of course, recognizes that because § 19a-24 derogates the state's sovereign immunity, it must be narrowly construed. As the Supreme Court has regularly noted, "it is a well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 691, 894 A.2d 919 (2006).
This canon of statutory construction, however, does not authorize this court to insert into the statute limiting language that the legislature did not choose to include. The statute refers to "any claim" for damages, which would, absent some contrary indication, appear to include intentional tort claims.
The authority relied upon by the commissioner does not support his assertion that only negligence claims may be brought pursuant to § 19a-24. First, the Connecticut Supreme Court's decision in Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983), does not address the question raised here. Indeed, the precise issue addressed by the court in Duguay was "whether the legislature intended § 19a-24 to waive the state's sovereign immunity and impose a direct liability . . . on the commissioner of mental retardation." Id., 227-28.
Contrary to the commissioner's reliance on it, Duguay actually supports the court's conclusion here. The Duguay court itself relied upon the broad waiver of sovereign immunity found in the use of the term "any" to conclude that "[t]here are no words, phases or clauses in § 19a-24 limiting or restricting the scope of `any civil action for damages.' If the legislature wished to restrict the statute to some civil actions against the named commissioners, it could have done so. If this were the legislative intent, it has failed to express it." Id., 229. At most, Duguay stands only for the unremarkable proposition that a party seeking to sue under a legislative waiver of sovereign immunity must come clearly within its provisions.
At the time Duguay was decided, § 19a-24 provided in relevant part: "[a]ny civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation . . . shall be brought against the commissioners in their official capacities." General Statute § 19a-24(a) (Rev. to 1981). The subsequent legislative amendment of this language to its current terms appears only technical in nature.
The commissioner also relies upon several superior court decisions in support of his claim, but these cases are either inapplicable and/or unpersuasive. For example, the commissioner cites In re Jaysean S., Superior Court, judicial district of New London, Docket No. 09 03 009149 (Feb. 17, 2005, Cosgrove, J.) [ 38 Conn. L. Rptr. 758], but that case had nothing to do with whether intentional torts could be brought pursuant to § 19a-24 and in fact, Jaysean S. was not even an action for money damages. Instead, Jaysean S. raised the question of whether the commissioner of the department of mental retardation could be impleaded in a juvenile court neglect proceeding.
Likewise Swan v. Residential Management Services, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 95 0127097 (April 29, 1997, Doherty, J.) [ 19 Conn. L. Rptr. 348], does not address the question presented here. Moreover, although that court does seem to indicate that § 19a-24 is limited to negligence actions, it provides absolutely no analysis of the relevant statutory language.
Finally, the commissioner cites to Ward v. Green, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X04CV 990120118 S, judicial district of New London, (March 20, 2001, Koletsky, J.). In Ward, Judge Koletsky concludes that intentional tort claims are not permissible under § 19a-24 because they cannot be considered an "official act" within the meaning of the statute. In reaching this conclusion, the court relies upon a legal dictionary definition of the term "official act" to mean an act "done by an officer in his official capacity under color and by virtue of his office." From that definition, Judge Koletsky then concludes that an intentional tort cannot be considered an act performed in an official capacity under color and by virtue of his office.
This court disagrees with Judge Koletsky's analysis because it is flawed in two respects. First, the court's reliance on the dictionary definition of "official act," without any attempt to ascertain the meaning of that term with reference to other language in § 19a-24 (including the language "any claim"), results in an unduly narrow construction of the term "official act." More importantly, even when acting in an intentionally wrongful way, a government official or employee may still be acting within the scope of his or her employment when committing an intentional tort. Cf. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500-01, 656 A.2d 1009 (1995) (intentional torts may be committed within the scope of one employment). In sum, this court declines to follow Ward v. Greene, and concludes that sovereign immunity does not bar the counts alleging intentional torts against the commissioner.
D. Count One must be dismissed because General Statutes §§ 20-13j and 19a-24 do not create a private cause of action.
Hechtman's first count is entitled "damages under § 19a-24." The commissioner argues the first count should be dismissed because, even though § 19a-24 waives the state's sovereign immunity from certain suits, it does not itself create a private cause of action. Hechtman appears to contend that § 19a-24 must be construed to authorize a cause of action for damages for any violation of the commissioner's various statutory duties as set out in Chapter 370 of the General Statutes. Specifically, Hechtman contends that the commissioner violated § 20-13j, which lays out the responsibilities of the commissioner regarding the maintenance of physician profiles, and that this violation is actionable pursuant to § 19a-24. The court agrees with the commissioner.
"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 800, 970 A.2d 640 (2009).
The court begins by analyzing General Statutes § 20-13j, the particular statute that Hechtman claims, in paragraph 25 of Count One, that the commissioner violated. First, § 20-13j by its term makes no mention of any cause of action. The plain language of the statute simply lays out the commissioner's duties. Moreover, in its provisions requiring the commissioner to maintain a physician profile, it appears that the legislature was principally intending to protect potential patients of physicians by providing the public with readily available information about specific physicians, including their discipline records, and not for the benefit of medical doctors themselves. Moreover, Hechtman has failed to point to any language in this statute that would even imply that the legislature intended to provide physicians a cause of action for its violation. Consequently, the court concludes that § 20-13j does not create a statutory cause of action for its violation.
Accordingly, the court turns to the language of § 19a-24 to ascertain whether it somehow creates a statutory cause of action that did not otherwise previously exist. The pertinent language of § 19a-24 states "[a]ny claim for damages . . . on account of any official act or omission of the Commissioner of Public Health . . . shall be brought as a civil action against the [commissioner] in [his] official [capacity]." Although this language, as discussed above, waives the state's sovereign immunity and authorizes suits within its terms, there is nothing in this language that expresses a legislative intent to create a new statutory cause of action that did not otherwise exist at common law. The language does not either explicitly or implicitly make any particular act or omission of the commissioner or his staff actionable. Instead, the provision is best read as permitting an individual to bring any claim that he or she would otherwise have a right to bring against the commissioner in his official capacity (i.e., the "State") if sovereign immunity did not exist. The language does no more or less than that.
This analysis is in accord with the federal district court case of Roche v. O'Meara, United States District Court, Docket No. 02087 (D.Conn. November 27, 2001) ("[§]19a-24 does not create a cause of action; it simply codifies the State's agreement to waive sovereign immunity as to certain suits against the Commissioners of the Department of Public Health and the Department of Mental Retardation"). The court, therefore, dismisses count one of Hechtman's complaint.
E. A portion, but not all, of Hechtman's libel claim is barred by the applicable statute of limitations.
In Count three of his complaint, Hechtman alleges that the commissioner libeled him by publishing the settlement agreement under the discipline section of his physician profile on DPH's website when the agreement was not disciplinary in nature. The commissioner moves to dismiss the libel claims, contending that the claim for libel is time barred by the statute of limitations found in General Statutes § 52-597, which provides: "No action for libel and slander shall be brought but within two years from the date of the act complained of."
Libel is a species of defamation. "The statute of limitations for a defamation claim begins on the date of publication." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 224, 837 A.2d 759 (2004) (citing 3 Restatement (Second), Torts § 577 (1977). Thus, in order for the court to address the commissioner's argument, it must determine what date triggered the running of the statute of limitations in order to decide whether Hechtman's libel claim is time barred. Among the possible operative dates are: (1) the date the settlement agreement was first published on DPH's website; (2) the date the agreement was republished on the website; or (3) the court could find the statute of limitations was tolled if it determines the commissioner's failure to remove the agreement constituted a "continuing course of conduct" within the meaning of that doctrine.
In order to better understand the arguments of the parties, a brief overview of the law of libel is helpful. Traditionally, libel was considered published, and thus actionable against the writer, every time it was communicated to a new individual. 3 Restatement (Second), supra, §§ 577, 577A, 113 (1977). This has come to be known as the multiple publication rule. Id. In fact Connecticut courts currently recognize that "a new cause of action arises with each publication . . ." Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 224.
However, courts have recognized that applying the multiple publication rule to libel contained in widespread print media is problematic. "[I]f the multiple publication rule were applied [to print media] . . . the [s]tatute of [l]imitation[s] would never expire so long as a copy of [a] book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the [l]egislature to bar completely and forever all actions which, as to the time of their commencement, overpass the limitation there prescribed upon litigation." (Internal quotation marks omitted.) Firth v. State of New York, 98 N.Y.2d 365, 369, 775 N.E.2d 463, 747 N.Y.S.2d 69 (2002) (citing 3 Restatement (Second), supra § 577A). If the multiple publication rule were applied, each time the book was read by a new individual, a new cause of action for libel would arise; thus, the statute of limitations would be rendered useless.
To deal with this issue, many courts have adopted what is called the single publication rule. "[T]he single publication rule [is] namely that the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable [s]tatute of [l]imitations runs from the date of that publication." (Internal quotation marks omitted.) Firth v. State of New York, 98 N.Y.2d 365, 369, 775 N.E.2d 463, 747 N.Y.S.2d 69 (2002) (citing 3 Restatement (Second), supra § 577A).
"The great majority of the States now follow `the single publication rule.'" 3 Restatement (Second), supra, § 577A, Appendix, Reporter's Note (1977).
The commissioner argues that because this information was published, (or "posted" in Internet terminology), on a website, this court should follow the single publication rule rather than the traditional multiple publication rule to determine the date the statute of limitations began to run. Although no Connecticut court has addressed this question, the commissioner notes that many other jurisdictions, including New York have adopted the single publication rule when dealing with allegedly libelous information posted on the Internet.
The policy justifications underlying the single publication rule are even more compelling when applied to Internet postings. "[F]rom a publisher's point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers and buyers. Communications posted on [w]ebsites may be viewed by thousands, if not millions, over an expansive geographic area for an indefinite period of time." (Internal quotation marks omitted.) Firth v. State of New York, supra, 98 N.Y.2d 370. Under the traditional multiple publication rule, arguably, every time a website is viewed, a new cause of action could arise. Firth v. State of New York, supra, 98 N.Y.2d 370. Thus, the statute of limitations would be rendered useless. Id.
In accordance with the single publication rule, the commissioner argues the publication date must be the date the settlement agreement was first added to Hechtman's profile, which was October 10, 2006. As suit was brought on April 6, 2009, more than two years after the asserted publication date, the commissioner contends that the statute of limitations bars this claim.
Although Connecticut courts have yet to advance a rule on how Internet libel will be treated for purposes of the statute of limitations, the majority of other jurisdictions have adopted the single publication rule to deal with this conundrum. "Communications accessible over a public [w]ebsite resemble those contained in traditional mass media, only on a far grander scale. Those policies [in favor of the single publication rule] are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet." Id.
See, e.g., In re Davis, 347 B.R. 607, 611 (W.D.Ky. 2006); Mitan v. Davis, 243 F.Sup.2d 719, 724(W.D.Ky. 2003) ("we will apply the single publication rule to the statements in this case which were published on the Internet"); Churchill v. State, 378 N.J.Super. 471, 876 A.2d 311, 316-19 (2005) ("we adopt what we consider the majority position and apply the single publication rule to Internet publications"); Bi-Weekly Admin v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007) (noting a "near unanimity" of courts "apply the single publication rule to Internet publications"); MaCandliss v. Cox Enterprises, Inc., 265 Ga.App. 377, 593 S.E.2d 856 (2004).
The court is persuaded by these decisions and adopts the single publication rule with respect to internet postings. In accordance with this rule, defamatory statements posted on the Internet are considered published on the date they are initially posted and not every time a third party views the statements. As more than two years lapsed between the original publication date and the date this action began, Hechtman's claims for damages resulting from a libelous publication on October 10, 2006 are time barred under § 52-597.
This determination, however, does not completely resolve the statute of limitation claim raised by the commissioner because Hechtman makes two additional arguments. First, he argues that the single publication rule does not apply in the particular circumstances of this case because the commissioner's refusal to remove the settlement agreement from the discipline portion of his physician profile constitutes a continuing course of conduct sufficient to toll the statute of limitations. Second, and alternatively, Hechtman argues that even under the single publication rule, the reposting of the settlement agreement to the website on July 31, 2008 constitutes a new publication, which gives rise to a new cause of action within the statute of limitations. The commissioner, on the other hand, argues that if this second date is applied, Hechtman's claim must still fail because he has not alleged damages resulting from this second publication. The court disagrees with Hechtman regarding the applicability of the continuing course of conduct rule but agrees with his alternative claim regarding republication.
The court first addresses Hechtman's contention that the commissioner's failure to remove the allegedly libelous information constituted later wrongful conduct, which served to toll the statute of limitations under the continuing course of conduct doctrine. The commissioner contends that the court cannot consider the failure to remove the information a continuous course of conduct because there is no evidence of a special relationship between the parties that would give rise to a continuing duty nor is there evidence of a later wrongful conduct as required by the continuing course of conduct doctrine.
It has been generally accepted within Connecticut tort law that "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute [of limitations] does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Giglio v. Connecticut Light Power Co., 180 Conn. 230, 241, 429 A.2d 486 (1980). "To support a finding of a `continuing course of conduct' that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong." Fichera v. Mine Hill Corporation, 207 Conn. 204, 209, 541 A.2d 472 (1988). "Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." Jarvis v. Lieder; 117 Conn.App. 129, 148, 978 A.2d 106 (2009). "A predicate to the application of the continuing course of conduct doctrine is that the defendant must owe the plaintiff a continuing duty after an initial wrongful act or omission . . . For there to be a genuine issue as to a continuing duty, there must be evidence of either a special relationship between the parties or some later wrongful conduct of the defendant related to the prior act." (Citation omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 15, 965 A.2d 556, cert. denied, 291 Conn. 913 (2009). Where "[t]here was clearly no special relationship between the parties, such as an attorney-client relationship, that would give rise to any continuing duty to act . . . [the defendant] must have committed some later wrongful conduct related to the prior act, and the initial act or omission [must have been] wrongful." (Citation omitted.) Id.
The court finds that the doctrine is inapplicable here because no special relationship exists between the parties. Indeed, Hechtman has alleged in his opposition that the parties in the present case have dealt with each other at arm's length. Thus, this doctrine could only be applied if Hechtman properly alleged that the commissioner committed wrongful conduct related to the initial publication of libelous information. Hechtman argues the failure to remove the agreement from his physician profile constitutes later wrongful conduct related to posting the libelous information. The court does not agree.
In support of his argument, Hechtman cites to § 577(2) of the Restatement, entitled "What Constitutes Publication," which states "[o]ne who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication." 3 Restatement (Second), supra, § 577(2). This Restatement section would impose liability on the owner of property who refuses to remove defamatory writings placed on that property by a third party. The Restatement illustrates this scenario with the classic example of a tavern owner who refuses to remove defamatory writing on a bathroom wall of the tavern placed there by a third party. Id.
Although his Restatement provision supports imposing liability for failing to remove the defamatory writings, the provision does not suggest that the statute of limitations would be tolled for as long as the owner refuses to remove it. Furthermore, Hechtman fails to cite any Connecticut cases that applied the continuing course of conduct doctrine to toll the statute of limitations for an action for libel. Therefore, in light of the absence of any authority that a failure to remove the allegedly defamatory writings constitutes later wrongful conduct, this court declines to apply the doctrine here.
Finally, the court turns to Hechtman's alternative argument that the commissioner's republication of the settlement agreement gave rise to a new cause of action. This court is persuaded.
Both parties are in agreement that republication is an exception to the single publication rule and ordinarily gives rise to a new cause of action. New York courts applying the single publication rule have stated "[r]epublication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition . . . The justification for this exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience . . . Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action . . ." (Citations omitted; internal quotation marks omitted.) Firth v. State of New York, supra, 98 N.Y.2d 371. Considering the ease with which a website may be edited, courts have found "[a] website may be republished and create a new cause of action for defamation if the website is `substantially modified.'" Atkinson v. McLaughlin, 462 F.Sup.2d 1038, 1052 (D.N.D. 2006). On the other hand "[t]he mere addition of unrelated information to a website;" Firth v. State of New York, supra, 371; does not constitute a republication of the website.
In the present case, Hechtman's libel claim for damages resulting from the republication of the allegedly libelous information on DPH's website on July 31, 2008 is not barred by the statute of limitations. By deleting and subsequently reposting the allegedly libelous information, the commissioner was substantially modifying the content of the website at issue. Furthermore, like an afternoon edition of a newspaper compared to its morning edition, the repost is both a deliberate repetition of the information and is aimed at a new audience that seeks the most up-to-date version of information. Thus, the reposting gives rise to a new claim for libel as it is a separate and distinct publication.
The commissioner argues that the claim must still be dismissed because Hechtman has not alleged that he suffered new or additional injuries arising from the republication. This assertion lacks merit.
The complaint alleges injury to Hechtman's professional reputation, psychological pain and suffering, economic harm, loss of future earnings and costs of legal representation resulting from the republication of the settlement agreement as professional discipline. Although the commissioner is correct that the damages allegedly suffered from defending an investigation in New York, suspension of his license in New Jersey, and a disciplinary finding in Pennsylvania are all time barred as they allegedly took place prior to July 31, 2008, Hechtman has properly alleged other damages to reputation, economic harm and psychological pain and suffering resulting from the commissioner's conduct. Therefore, Hechtman may seek to recover damages, if any, resulting from the republication of the settlement agreement on July 31, 2008.
F. The claims in count three and count five are barred by the statute of limitations found in General Statutes § 52-597.
Hechtman's third count seeks damages because the "[d]efendants have negligently published false information . . ." (Complaint Count 3, ¶ 22). The fifth count for negligent infliction of emotional distress likewise states that the "defendants were negligent in their publication of Hechtman's physician profile." (Complaint Count 5, § 22.)
The commissioner argues the ordinary statute of limitations for negligence claims, § 52-584, should bar counts three and five for negligence and negligent infliction of emotional distress because the action was commenced more than two years from the date of the injury. The commissioner argues the cause of action for negligence and negligent infliction of emotional distress began either on October 10, 2006, when the information was posted, or at the latest, March 2, 2007, when Hechtman first complained about the posting of the information to the commissioner. As this action was not commenced until April 6, 2009, the commissioner argues the use of either date would render these claims barred by the statute of limitations.
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
In response, Hechtman does not dispute that the statute of limitations found in § 52-584 applies, but instead argues that this statute of limitations was tolled by a continuing course of conduct in their failure to remove the information from his physician profile. The court agrees with the commissioner that these counts are barred by the statute of limitations, but for different reasons.
First, the court considers both count three and count five together in light of the commissioner's argument that § 52-584 applies to both counts. "[M]ental suffering, even if unaccompanied by physical trauma to the body, constitutes an injury to the person under § 52-584." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999). Thus, § 52-584 ordinarily would apply to causes of action for negligent infliction of emotional distress as well as negligence. Id.
The problem with both parties' assumption that § 52-584 applies is that the causes of action asserted in counts three and five are not truly claims of negligence, but rather, claims for defamation, which has a separate and distinct statute of limitations. "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs' reputation suffered injury as a result of the statement." (Citation omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 217. "Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed." 3 Restatement (Second), supra, § 557 (1) (emphasis added). "Libel consists of the publication of defamatory matter by written or printed words . . ." Id., § 568.
Thus, a better reading of counts three and five are that they are, in actuality, claims for libel. By alleging a negligent publication of false information to third parties and that Hechtman suffered harm to his reputation, Hechtman is, in effect, alleging a claim for libel. All the elements of a libel claim have been pleaded.
In a similar instance, the Fourth Circuit, in a suit against an Internet service provider for negligent failure to remove defamatory content published on its servers by a third party, determined that the plaintiff had in fact brought a cause of action for defamation rather than negligence. Zeran v. America Online, 129 F.3d 327, 332 (4th Cir. 1997), cert. denied, 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d 712 (1998). The court stated "[t]he terms `publisher' and `distributor' derive their legal significance from the context of defamation law. Although [the plaintiff] attempt[ed] to artfully plead his claims [for failure to remove defamatory statements from the Internet] as ones of negligence, they are indistinguishable from a garden variety defamation action." Id. The same reasoning applies here.
Accordingly, the court treats counts three and five as claims for libel subject to the statute of limitations contained in § 52-597. Therefore, applying the same analysis above, only claims for damages resulting from the republication of the settlement agreement may be pursued in these counts.
G. Hechtman's § 1983 claim must be dismissed.
In count four, Hechtman asserts a claim for money damages, pursuant to 42 U.S.C. § 1983, for violation of due process. This claim, however, must be dismissed because "neither a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Because Hechtman withdrew any and all individual capacity claims at oral argument, the only remaining defendants are the State or the commissioner in his official capacity. Consequently, Count four is dismissed.
H. Hechtman's sixth count is not barred by the applicable statute of limitations.
The commissioner next asserts that Hechtman's sixth count, although couched in terms of a breach of contract claims, is truly a claim for negligence and, therefore, is subject to a two-year statute of limitations rather than the six-year statute of limitations for breach of contract claims. The court disagrees with the commissioner.
"The identification of the essential elements of a contract depends on the particular circumstances of each case . . . A question about the existence of a contract is a question that must be decided by the finder of facts." (Citation omitted.) Coalition to Save Horsebarn Hill v. FOIC, 73 Conn.App. 89, 98, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003). "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." Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921; 943 A.2d 1100 (2008). "When a defendant's liability to the plaintiff is premised, however, on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint . . . [C]onsequently a reviewing court may `pierce the pleading veil' to ensure that such is not the case." (Citation omitted; internal quotation marks omitted.) Id. "Courts have held that tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." Id. To determine whether a contract claim is a disguised tort claim, courts will look to the "gravamen of the action" as alleged in the complaint. Id.
In the present case, Hechtman has sufficiently pleaded that there was a breach of contract. Settlement agreements are a species of contracts. In the settlement agreement, Hechtman agreed not to renew his license and in exchange the commissioner agreed not to proceed with an investigation of Hechtman. Hechtman alleges the commissioner's publication of the agreement in the discipline section of his physician profile was a breach of that agreement. Although it is true, as the commissioner contends, that the settlement agreement contains no explicit contractual provisions regarding the precise manner in which the settlement would be characterized when published on the website, Hechtman's claim is that the commissioner's characterization of the settlement agreement violated either an implicit term of the agreement or constitutes a violation of the obligation of good faith and fair dealing that arises with the formation of any contract. Although there is disagreement between the parties as to whether posting the information violated the language and/or spirit of the agreement, this is a question of fact as to the meaning of the contract. Although Hechtman may or may not be able to prevail on his contract claim, the simple fact is that he has adequately alleged the elements of a breach of contract claim. Thus, this court concludes that count six properly alleges a breach of contract and is not barred by the two-year statute of limitation claim applicable to negligence claims.
I. Count seven does not violate sovereign immunity.
Lastly, the commissioner argues that count seven asking for injunctive relief must be dismissed. The commissioner contends that a request for injunctive relief requires an allegation that the commissioner acted in excess of his statutory authority. See Miller v. Egan, 265 Conn. 301, 315, 828 A.2d 549 (2003) ("[A]ctions that seek injunctive relief or declaratory relief against a state officer acting in excess of statutory authority or pursuant to an unconstitutional statute do not conflict with the policies underlying the doctrine of sovereign immunity"). The commissioner contends that Hechtman has failed to make such an allegation here. The court disagrees.
Count seven, by reference, incorporates allegations that only the board of medical examiners has the authority to discipline a physician — not DPH. Although the commissioner disputes this contention on its merits, Hechtman has sufficiently alleged a claim for injunctive relief against a state official in his official capacity. Accordingly, count seven is not dismissed.
III. CONCLUSION
For the foregoing reasons, the motion to dismiss is granted in part and denied in part.