Opinion
HHDCV146048637S
04-05-2017
Harriet Rosenblit v. Hartford Hospital et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.
This matter is before the court concerning parties' cross motions for summary judgment (#172, 184). The court heard oral argument concerning the motions on February 6, 2017. For the reasons stated below, the plaintiff's motion is denied and the defendants' motion is granted.
I
Background
This matter arises from a billing dispute related to physical therapy services which were provided to the plaintiff, Harriet Rosenblit, in January and February 2013. The plaintiff alleges that the defendants were obligated to provide pricing information prior to the commencement of the services and to identify on bills that the amounts claimed to be due represented the reasonable value of the products and services provided. The plaintiff's claims are based on the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. (CUTPA).
The plaintiff moves for interlocutory summary judgment as to liability only as to the second and third counts of her fourth amended complaint (#156) (complaint). The defendants, Hartford Hospital and Hartford Healthcare Rehabilitation Network, LLC, object thereto and cross move for summary judgment as to those counts of the complaint and their special defenses. See #183. Additional references to the allegations are set forth below.IT 'LC A-1)1 S.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.
III
Discussion
A
In the second count, the plaintiff asserts that the defendants violated CUTPA by failing to provide her with pricing information concerning her physical therapy regime and by failing to state on each invoice statement that the amount set forth represented the defendant's opinion as to the reasonable value of the rendered services and products; and that she owed only the reasonable value of the services and products rendered to her. They also allege that the defendants violated CUTPA by the " implication on each of said invoice statements that the Plaintiff was legally obligated to pay the amount set forth therein." (Emphasis in original.) See complaint, second count, ¶ 14.
" [General Statutes] § 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . 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 . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350-51, 994 A.2d 153 (2010).
" Although CUTPA is primarily a statutory cause of action; see General Statutes § 42-110b; it equally is recognized that CUTPA claims may arise from underlying causes of action, such as contract violations or torts, provided the additional CUTPA elements are pleaded." Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010).
" CUTPA, by its own terms, applies to a broad spectrum of commercial activity . . . The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Willow Springs Condo. Ass'n v. Seventh BRT Dev. Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).
" CUTPA was intended to provide a remedy that is separate and distinct from the remedies provided by contract law when the defendant's contractual breach was accompanied by aggravating circumstances." (Footnote omitted.) Ulbrich v. Groth, 310 Conn. 375, 411, 78 A.3d 76 (2013). " [T]he private cause of action created by CUTPA reaches conduct well beyond that proscribed by any common law analogue." (Internal quotation marks omitted.) Id., 412. " [A]bsent substantial aggravating circumstances, [a] simple breach of contract is insufficient to establish [a] claim under CUTPA." Lydall v. Ruschmeyer, 282 Conn. 209, 248, 919 A.2d 421 (2007).
The material facts are not in dispute. The plaintiff and the defendants ask the court to determine, as a matter of law, whether the conduct alleged amounts to violations of CUTPA. See Johnson Elec. Co., Inc. v. Salce Contracting Assocs., Inc., 72 Conn.App. 342, 355-58, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002) (court may determine, as a matter of law, whether the undisputed facts are sufficient to establish a CUTPA claim).
See plaintiff's memorandum (#185), page 2, stating that resolution of liability by the court is especially appropriate since the defendants have filed a cross motion for summary judgment.
The plaintiff cites several statutes at pp. 11-12 of her brief (#173) in support of the conclusion that, as a matter of public policy, Connecticut favors financial transparency in business. These statutes cited by the plaintiff pertain to advance disclosures that must be made in particular industries, e.g., motor vehicle repair, consumer credit, franchising, etc. However, the plaintiff has not shown the statutes cited encompass the alleged conduct in the present case.
The court declines to take judicial notice of the alleged fact that Connecticut's healthcare industry (including its physical therapy component) lacks price transparency, because the plaintiff has not presented evidence which establishes that such a fact is a matter of common knowledge.
Also, the plaintiff has not shown that the defendants violated General Statutes § 20-7f, concerning unfair billing practices. Similarly unavailing are the plaintiff's references to General Statutes § § 38a-1084a(e) and 19a-508c(b)(2). These statutes were enacted in 2015, after the alleged conduct here, which occurred in 2013.
The alleged conduct does not rise to the level of a deceptive business practice because the defendants owed no duty to the plaintiff to disclose how much her treatment sessions would or might cost and, as to the invoices, no duty to disclose that: (i) the invoiced sums represented the defendants' opinion as to the reasonable value of the services rendered; and (ii) the plaintiff was legally obligated to pay only the reasonable value of the services rendered.
" A failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose." (Internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn.App. 327, 330, 730 A.2d 115 (1999). The case on which the plaintiff relies, Bailey Employment System, Inc. v. Hahn, 545 F.Supp. 62, 67 (D.Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983), is distinguishable from the present case because, there, the court addressed unfair and deceptive practices that were particular to the business of franchising. " [D]efendants [do] not violate CUTPA by failing to disclose information when they were under no legal obligation to disclose that information." Downes-Patterson Corp. v. First Nat'l Supermarkets, Inc., 64 Conn.App. 417, 427, 780 A.2d 967, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed, June 25, 2002).
The alleged conduct does not rise to the level of an unfair business practice because the plaintiff: (i) has not demonstrated that such conduct offends public policy as it has been established by statutes, the common law, or otherwise; (ii) has not shown that such conduct is immoral, unethical, oppressive, or unscrupulous; and (iii) has not shown that such conduct causes substantial injury to consumers (or competitors or other businessmen).
The plaintiff's affidavit is unpersuasive. " [A]ffidavits containing self-serving allegations need not be viewed as persuasive by the court . . . Additionally, [t]he Superior Courts have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment." (Internal quotation marks omitted.) ( Petra Constr. Co. v. Sacred Heart Univ., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03 HHD CV 09 6013738 May 26, 2011, Miller, J.) (52 Conn.L.Rptr. 83).
B
In the third count, the plaintiff alleges that the Hospital violated CUTPA and the Connecticut Collection Practices Act (CCPA), General Statutes § 36a-645 et seq., due to the fact that collection efforts continued after the commencement of the present action. The plaintiff has submitted insufficient evidence to show that the alleged conduct amounts to a violation of the CCPA. Moreover, the plaintiff neither alleged nor submitted any evidence that the defendants had knowledge of her attorney's name and address.
The plaintiff has not shown that the alleged conduct amounts to an " abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect [a] debt." General Statutes § 36a-646. Cf. Tillquist v. Ford Motor Credit Co., 714 F.Supp. 607, 615-16 (D.Conn. 1989) (finding a CCPA violation where creditor [1] phoned plaintiff's home on several occasions and talked with his children about outstanding debt; [2] frequently phoned plaintiff's wife at her place of employment and discussed the debt after she had informed creditor that calls were placing her job in jeopardy; and [3] continually called plaintiff at his place of employment after he had requested creditor to cease this activity).
Section 36a-647-3 of the Regulations of Connecticut State Agencies provides in relevant part: " Any creditor . . . shall not . . . [c]ommunicate with any person other than the attorney for the consumer debtor or consumer debtor agent after the creditor knows the consumer debtor or consumer debtor agent is represented by an attorney with regard to the subject debt and has knowledge of such attorney's name and address, unless the attorney fails to respond within a reasonable period of time not to exceed thirty days after such communication from the creditor, or unless the attorney cannot or will not provide location information to such creditor." (Emphasis added.)
Analogous to Hill v. Navy Federal Credit Union, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04 CV 09 4042680 (June 2, 2010, Shapiro, J.) (50 Conn.L.Rptr. 96, ), the plaintiff has neither alleged nor submitted any evidence that the defendants had knowledge of her attorney's name and address.
The court addressed the " cigarette rule" above concerning the second count. With regard to the third count, the court similarly concludes that the alleged conduct also does not meet the other " cigarette rule" requirements (unethical conduct and substantial consumer injury).
Under these circumstances, the court need not consider the parties' other arguments.
CONCLUSION
For the reasons stated above, the defendants have shown that they are entitled to judgment as a matter of law as to the second and third counts. Accordingly, their cross motion for summary judgment is granted as to those counts and the plaintiff's motion is denied. It is so ordered.