Opinion
No. HHB CV 09 5014599 S
March 23, 2011
MEMORANDUM OF DECISION RE DEFENDANT THE BRISTOL HOSPITAL, INC.'S MOTION TO STRIKE
BACKGROUND:
This is an action in three counts claiming the wrongful death of the plaintiff's decedent. The First and Third Counts are directed against the defendant, The Bristol Hospital, Inc. [the Hospital]. The First Count is a claim of respondeat superior for the alleged negligence and carelessness of the Hospital's agents, servants and/or employees in the care and treatment of the decedent. These agents, servants or employees are not identified by role, occupation, class or name. The Second Count is directed against another defendant, Cliff Wagner, M.D., alleging Wagner was negligent and careless in the same manner as alleged against the Hospital's agents, servants or employees in the First Count. The Third Count is a claim of respondeat superior against the Hospital for the acts of its alleged agent, apparent agent, servant and/or employee, Wagner, setting forth the same allegations of negligence of the Second Count.
The plaintiff has inserted language in ¶ 7 of the Third Count that Wagner was the apparent agent of the Hospital. There does not appear to be any common law action of apparent agency in a medical malpractice or wrongful death context recognized by appellate authority in this state. The plaintiff has not made this claim in a separate count, as required by Practice Book § 10-26, nor has he claimed that this assertion is somehow different from the agency cause of action. Therefore, the court presumes apparent agency is not being claimed as a separate cause of action here, but merely utilized as if synonymous with the terms, agent, servant and employee.
The Hospital seeks to strike the First and Third Counts as legally insufficient. The plaintiff has filed an objection to same, several briefs were filed and the parties were heard at oral argument.
LEGAL STANDARD:
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997)." "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).
ANALYSIS:
"A corporation may also be held vicariously liable under the doctrine of respondeat superior if the person actually committing the violation was a servant of the corporation when the acts were committed, and the acts were committed within the scope of the servant's employment and in furtherance of the corporation's business." R. Langer, J. Morgan D. Belt, 12 Connecticut Practice Series: Unfair Trade Practices (2003) § 6.7, p. 425. Landmark Inv. Group v. Chung Family Realty, 125 Conn.App. 678, 702, n. 24, 10 A.3d 61 (2010).
"The underlying rationale of the modern doctrine of respondeat superior in its application to this type of case is that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others, while they are engaged upon his business and within the scope of their authority . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order of the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968).
"[T]o constitute the relation of master and servant, the one for whom the service is rendered must consent to receive the services as master, that is consent to their being performed under his direction and control. There must be submission by one giving service to the directions and control of the one receiving it as to the manner of performance . . . In the absence of this the relation does not exist . . . There is no dispute about the ultimate test. It is the right of general control of the means and methods used by the person whose status is involved." (Citations omitted; internal quotation marks omitted.) Oleksinski v. Filip, 129 Conn. 701, 702-03, 30 A.2d 912 (1943).
The issue here for both the First and Third counts is whether the plaintiff has sufficiently stated the factual basis for a cause of action of agency. "[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 892 A.2d 389 (2006).
In the First Count, the plaintiff has alleged that the Hospital was acting through its agents, servants and/or employees, ¶ 2, and that the injuries, damages and death of the decedent were caused by the negligence and carelessness of the Hospital though its agents, servants and/or employees in several articulated ways. ¶ 6. In the Third Court, the plaintiff has alleged that the Hospital was acting through its agent, servant and/or employee, Wagner, ¶ 2, and that the injuries, damages and death of the decedent were caused by the negligence and carelessness of the Hospital through its agent, apparent agent, servant and/or employee, Wagner. ¶ 7. The Hospital claims that the assertions of agency are merely legal conclusions, not assertions of fact as required by Practice Book § 10-1. The plaintiff argues that its assertion of agency is legally sufficient and that, at the time of filing the complaint, the plaintiff does not have access to information sufficient to allege facts as to the claimed agency relationship.
In Hollister v. Thomas, 110 Conn.App. 692, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008), the Appellate Court considered the sufficiency issue of factual pleading in an agency cause of action. In Hollister, the plaintiff alleged that a subcontractor was the agent of a contractor. The court noted that the complaint failed to allege the facts necessary to prove the existence of an agency relationship, including an allegation that the contractor had a right to control the work of the subcontractor. Id. at 706. Further, the complaint merely used labels of "agent" and "subcontractor." "`[T]he labels used by the parties in referring to their relationship are not determinative; rather a court must look to the operative terms of their agreement or understanding.' Wesley v. Schaller Subaru, Inc., [ supra], 277 Conn. 543-44." The court concluded that the plaintiff failed to allege an agency relationship.
Similarly, in the present case, the plaintiff has merely alleged legal conclusions of agency without the predicate facts required to establish this cause of action. The plaintiff argues that he cannot obtain relevant information prior to suit to establish the elements of agency. However, the plaintiff merely has to allege the three elements of agency. He does not have to plead evidence, nor would that be proper under our rules of practice, § 10-1. There is nothing to prevent the plaintiff from making such allegations, for which specific knowledge of names or contract terms is not required.
It is a well established principle that Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1. "Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . ." (Internal quotation marks omitted.) Somers v. Chan, 110 Conn.App. 511, 528, 955 A.2d 667 (2008). Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading . . . [O]ur rules of practice allow a party to timely replead a claim that has been stricken, thereby providing a method for deficient pleadings to be remedied in the event that an alternative legal theory was not considered by the court when a motion to strike a claim for legal insufficiency is granted. See Practice Book § 10-44.
Pike v. Bugbee, 115 Conn.App. 820, 828, fn.5, 974 A.2d 743 (2009). The pleadings in their present state do not sufficiently allege a cause of action of respondeat superior based upon agency. A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
ORDER: CT Page 7698
The defendant The Bristol Hospital, Inc.'s motion to strike the First and Third Counts of the Second Revised Complaint (153.00) is granted. The objection to same (156.00) is overruled.