Opinion
No. CV 02-0516194 S
January 8, 2004
MEMORANDUM OF DECISION RE MOTION #113 MOTION TO STRIKE
By way of a motion dated December 18, 2002 and filed on December 24, 2002, the defendants, Anna Strupinski and Andrzej Strupinski moved to strike the second and third counts of the plaintiff's complaint dated July 3, 2002.
Oral argument was originally heard on this matter by the Honorable Andre M. Kocay, J. on January 27, 2003. Unfortunately Judge Kocay passed away before rendering a decision on the instant motion. This court has reviewed the transcript of the oral argument in preparation of deciding the issues currently before it.
The plaintiff alleges in the first count of her complaint that the defendants were in the cleaning services business under an assumed trade name of "Anya Cleaning Services." On January 11, 2002, the plaintiff was injured in the course of her employment. She further alleges that although she was an employee of the defendants, they did not have a valid workers' compensation insurance policy to cover her and that this omission violated the provisions of § 31-284 of the Connecticut General Statutes.
This count is not addressed in the Motion to Strike.
The second count of the plaintiff's complaint sounds in the negligent infliction of emotional distress. The plaintiff alleges that after the aforementioned injury occurred, and after she had filed a claim against the defendants, the defendants made several threatening telephone calls to the plaintiff demanding that she withdraw her claims and threatened the with retaliation and blackmail, thereby causing her emotional disturbance and mental pain and anguish.
The third count of the plaintiff's complaint sounds in a violation of the Connecticut Unfair Trades Practices Act (hereinafter "CUTPA").
The plaintiff conceded to the defendants' argument in their memorandum concerning this issue. Furthermore, the plaintiff agreed at the oral argument of January 27, 2003 that this count may be stricken (See transcript at page 2.).
Citing Perodeau v. City of Hartford, 259 Conn. 279 (2002), the defendants assert that the second count should be stricken for reason that the plaintiff has not alleged in her complaint that the claimed emotional distress arose out of the termination of her employment.
On January 16, 2003, the plaintiff filed a memorandum of law in opposition of the motion to strike asserting that the defendants have incorrectly interpreted the holding of Perodeau. The plaintiff objection apparently has two thrusts: 1) that Perodeau only applies in situations wherein the claim of negligent infliction of emotional distress is brought by " employees against their fellow employees" (see memorandum at page 1); and 2) the plaintiff's claim has "nothing to do with the duties and context of the plaintiff's employment. The plaintiff asserts that:
. . . This claim arises out of an outrageous conduct having to do with attempt by the defendant employer to stop the plaintiff from bringing her claim for personal injuries under either Workers' Compensation Act or common law.
(Plaintiff's memorandum at page 2.)
Whereas the defendant has filed a motion to strike, a brief review of recent case law concerning the motions to strike is warranted:
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002). CT Page 472
Other than making the statement that Perodeau is limited to situations wherein an employee files a claim for emotional distress against an employer, the plaintiff does not make any further argument nor cite any authority to support this position and the argument appears to have been abandoned.
Furthermore, this court agrees with the well reasoned decision of Judge Booth, in a matter dealing with a similar fact pattern as it relates to the employer/employee issues in the instant action. In that matter the court found that:
This Court, while acknowledging that Perodeau speaks to suits against fellow employees, sees no reason to believe that policy considerations which generated the Perodeau result would be any different for negligent infliction occurring during the employment process when committed directly by the employer then when committed by a fellow employee. In addition, the Court notes that a corporate employer, even a municipal corporation such as Wethersfield, acts only through its employees and agents. The Court finds the policy of Perodeau to be sufficiently articulated so that the plaintiff may not maintain an action for emotional infliction against the defendant employer Wethersfield Board of Education. The Court finds that a defendant employer rather than a defendant fellow employee does not support a change in the Perodeau result.
O'Connor v. Wethersfield BOE, CV 01-08083768 (Aug. 22, 2003, Booth, J.) 35 Conn. L. Rptr. 326, 2003 Ct. Sup. 10251.
This court recognizes that the employer in the instant action is not a corporation but apparently a d.b.a.
As to the second issue raised by the plaintiff in her objection, i.e., that the plaintiff's claim has nothing to do with the duties and context of the plaintiff's employment. Once again the plaintiff does not cite any authority to support this position. However the plaintiff complaint and arguments raise factual issues as to whether the injury that she allegedly sustained falls outside the exclusive scope of the workers' compensation act.
. . . In Stepney v. Devereux Foundation, supra, 14 Conn. L. Rptr. 485, the trial court reasoned that "[t]he Workers' Compensation Act compromises an employee's right to a common-law tort action for work-related injuries in return for relatively quick and certain compensation . . . When an injury is expressly excluded from coverage under the act, the employe[e]'s right to pursue a common-law remedy for the injury is no longer compromised. The exclusivity provided by the workers' compensation statute is a quid pro quo, and a right of action should only be deemed taken away from an employee where something of value has been put in its place." (Citation omitted.) We agree with this reasoning. Accordingly, we conclude that the act itself does not preclude the plaintiff from bringing a common-law tort claim against the individual defendants for negligent infliction of emotional distress.
Perodeau v. Hartford, 259 Conn. 729, 747 (2002).
The motion before the court is a motion to strike not a motion for summary judgment. In deciding upon a motion to strike or a demurrer, a trial court must take the facts to be those alleged in the complaint; Blancato v. Feldspar Corporation, 203 Conn. 34 (1987); DeMello v. Plainville, 170 Conn. 675, 677 (1976); and "cannot be aided by the assumption of any facts not therein alleged." Fraser v. Henninger, 173 Conn. 52; Wexler Construction Co. Housing Authority, 144 Conn. 187, 194 (1956). Although a motion to strike and a motion for summary judgment may be used to challenge the legal sufficiency of a pleading, the court must apply different standards to said motions. In a motion to strike, the court is required to assume as true all well pleaded facts. Eskine v. Castiglia, 253 Conn. 516, 522 (2000). While on the other hand, the court grants a motion for summary judgment when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.
Whereas the issue raised by the moving party would require the court to make assumptions concerning the facts cited in the Complaint, and whereas the issue is more properly addressed by way of a motion for summary judgment, the motion to strike the second count of the complaint is denied.
RICHARD A. ROBINSON, JUDGE.