Opinion
No. CV03-0830204
April 25, 2005
DECISION ON MOTION TO STRIKE
Pursuant to an August 30, 2004 pleading, defendants have moved to strike the First, Second, Eighth and Thirteenth count of the plaintiff's October 31, 2003, complaint in this case. Plaintiff has filed a November 17, 2004, objection. For the reasons stated, the motion is granted as to the Eighth Count and denied as to the First, Second and Thirteenth Count.
In ruling on a motion to strike, the Court "must take as true the facts alleged in the complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The courts look to the substance of the claim, not the form. Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161, 163, 742 A.2d 393 (1999).
Defendants claim that the First Count, directed against AS Boats, alleging a breach of contract, lacks a legal basis because plaintiff has a legal remedy under Sections 31-72a and 31-69b of the Connecticut General Statutes. Defendants contend that the Second Count, alleging a breach of the covenant of good faith and fair dealing, should also be struck because plaintiff has a legal remedy under the same two statutes cited above. Plaintiff responds by arguing that defendants' reliance on Burnham v. Karl Gelb, P.C., 252 Conn. 153 (2000), and Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643 (1985) and Dunn v. Metromedia, Inc., 1998 Conn.Super. LEXIS 3522 (1998) (Lewis, J.) is misplaced. The Supreme Court's ruling in the Burnham case was limited to actions for wrongful discharge, plaintiff asserts, not at issue in the First and Second Counts. The other two cases, plaintiff argues, do not change the analysis. The Court agrees with the plaintiff's analysis. The motion to strike the First and Second Count is denied.
The Eighth Count, alleging wrongful discharge, should be stricken, defendants contend, because plaintiff had a statutory remedy under Sections 31-72a and 31-69b. In support of their argument, they rely on Burnham as well as Parsons v. United Technologies Corp., 243 Conn. 66 (1997). Plaintiff counters that this claim is premature because these sections relate to persons making a claim for "wages," and it is too early in the case to characterize plaintiff's claim as a claim for "wages." Section 31-71a(3) defines wages as follows: "`Wages' means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation." Plaintiff's argument is unpersuasive. Review of the Eighth Count makes it clear that what is at issue is a "wage" claim. See paragraph 18 of Eighth Count, incorporated by reference from the Seventh Count. A statutory remedy therefore does exist. The motion to strike the Eighth Count is granted.
Defendants argue that the Thirteenth Count, alleging a CUTPA violation, must be stricken because CUTPA does not apply to the employer-employee relationship. In support of their argument, they cite Quimby v. Kimberly Clark Corp., 28 Conn.App. 660 (1992). However, as plaintiff points out, the Thirteenth Count alleges some conduct that occurred after the plaintiff's employment relationship was terminated by defendant. I agree with Judge Comerford's analysis as expressed in his opinion in Itech Consulting Partners, LLC v. Briand, 2003 WL 1090485 (February 26, 2003) ( 34 Conn. L. Rptr. 184), that such an allegation removes a case from the restrictive parameters of Quimby. Therefore, the motion to strike the Thirteenth Count is denied.
Douglas S. Lavine Judge, Superior Court