Opinion
No. CV-065006153
April 8, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#102)
The plaintiff, Whitney Manor Convalescent Center, Inc. has filed a three-count complaint against the defendant, Gemma Lumpkin. Plaintiff is a nursing home located in Hamden, Connecticut. Defendant is the daughter of Nora Baker-Joseph (hereinafter Joseph), a resident at plaintiff's facility. The complaint raises the actions of breach of contract, unjust enrichment, and statutory theft. The defendant has moved to strike all three counts of the plaintiff's complaint.
At oral argument on March 15, 2010, the plaintiff conceded it needs to redraft the intent element for the third count, unjust enrichment. Therefore, the motion to strike on count three will be granted.
Plaintiff's complaint alleges the following. The plaintiff alleges that it is owed $8,146 for services provided to the defendant's mother while she has been a resident at the convalescent home. Whitney Manor alleges that on Dec. 18, 2003, the defendant entered into a "resident admissions agreement" with the plaintiff wherein she signed as the "responsible party" for her mother's stay. As a result of signing as the responsible party, the defendant undertook obligations related to her mother's care at the plaintiff's facility. Alternatively, the plaintiff alleges the defendant was unjustly enriched when she received and retained her mother's Applied Income from the Department of Social Services (DSS), which was required to be paid to the plaintiff for the care of defendant's mother. Finally, the plaintiff alleges the defendant committed statutory theft under C.G.S. § 52-564 because she wrongfully appropriated to herself her mother's funds that had been designated by DSS as Applied Income, which was to be paid to the plaintiff.
The defendant moves to strike the plaintiff's three-count complaint. The defendant argues that the complaint fails to plead facts sufficient to support the following: any finding that there was an enforceable contract between herself and Whitney Manor; any finding that she was unjustly enriched; and that there exists any cause of action for statutory theft.
"[A] motion to strike challenges the legal sufficiency of a pleading . . ." Eskin v. Castiglia, 253 Conn. 516, 522 (2000). In deciding on a motion to strike, the court must "read the allegations of the complaint generously to sustain its viability . . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212 (2000). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Brackets omitted.) Lombard v. Edward J. Peters Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "In deciding on a motion to strike . . . the trial court must take the facts to be those alleged in the [pleadings] . . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348 (1990). "Moreover [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Pamela B. v. Ment, 244 Conn. 296, 308 (1998). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285 (1982); Mora v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 211 (1988).
"It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471 (1991).
As a preliminary matter, the court notes that the defendant does not dispute that the agreement meets the requirements of the Medicaid Act, 42 U.S.C. § 1396(c). The Act "permits contracts concerning the payout of nursing home care services by legal representatives in control of resident's assets or income. Such a contract violates the Medicare Act, however, when the legal representative must personally guarantee such payments. 42 U.S.C. § 1396(c)(5)(B)(ii)." Sunrise Healthcare v. Azarigian, 76 Conn.App. 800, 808 (2003).
A contract unambiguously complies with these statutory requirements when, "first, it expressly prohibits personal liability on the part of the defendant for payments made to the plaintiff from . . . [resident's] account." Second, "the contract obligates the defendant to use . . . [resident's] assets for the payment of services." Id.
The defendant first alleges that the admissions agreement does not personally guarantee or serve a surety for payment of the care provided to the resident of the facility; therefore, she is not a party to the contract. The plaintiff alleges that when the defendant signed as the responsible party specific obligations followed. The issue in this case is analogous to that raised in Sunrise Healthcare: has the plaintiff sufficiently pled a breach of contract claim?
In Sunrise Healthcare Corp. v. Azarigian, supra, the court found that the nursing home agreement expressly absolved defendant from personal liability for a resident's debt but a defendant's failure to use these funds in accordance with terms of the agreement gave rise to a valid claim for breach of contract. Id., 808. There, the parties entered into a contract for the care of defendant's mother at the plaintiff's nursing home. The court held the language of the agreement obligated the defendant to use her mother's funds for her welfare, including but not limited to making prompt payments to the plaintiff. Id., 808-09. In Sunrise Healthcare, the plaintiff sufficiently alleged that the defendant, as Wood's . . . "responsible party" under the contract, had failed ". . . to use Wood's assets to pay for services rendered by the plaintiff. The plaintiff sought damages for the defendant's alleged breach . . ." Id., 802.
In finding the defendant liable under the contract, the court found "the defendant's potential liability under the contract for an unauthorized use of [] [the resident's] assets [] [to be] analogous to a trustee's liability for an unauthorized use of trust property. Just as the defendant is bound by the terms of the contract, so a trustee must act in accordance with the terms of the trust instrument." Id., 809.
In this case, the plaintiff's breach of contract claim is based on the fact that the defendant entered into the agreement as the responsible party. The complaint clearly sets forth the obligations of the responsible party and how the plaintiff alleges the defendant breached those obligations. Reading the facts most favorably to the plaintiff, and in light of Sunrise Healthcare, the plaintiff has sufficiently alleged a breach of contract claim.
As Sunrise Healthcare established, "[the] prohibition of a third-party guarantee[] does not, however, prevent an individual, who has legal access to a resident's income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident's income or resources for such care." Bishop Wicke Health Center v. Gorel, No. Superior Court, Judicial District of Ansonia-Milford, CV-06-5001424 (7/27/07, R. Robinson, J.) [ 43 Conn. L. Rptr. 826]. Here, the plaintiff has pled enough facts to establish an sufficient claim that defendant was in control of Joseph's income and assets and breached the said contract when she failed to use Joseph's income and asset towards the cost of Whitney Manor, for the resident's welfare, in accordance with the resident's admission agreement. The motion to strike count one is denied.
The Sunshine Healthcare case established that "used for the resident's welfare" includes paying for a retirement home. Sunrise Healthcare v. Azarigian, 76 Conn.App. 800, 811.
The defendant also moves to strike count two of the plaintiff's complaint alleging a claim of unjust enrichment. She argues that the plaintiff has failed to allege how she was unjustly enriched. The basic requirements of a claim of unjust enrichment are (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment. Gagne v. Vaccaro, 255 Conn. 390, 409 (2001).
Construing the facts in the complaint most favorably to the plaintiff, the court finds the plaintiff has pled a legally sufficient claim. The plaintiff alleges that the defendant was benefitted when she retained her mother's DSS Applied Income. The plaintiff alleges that the defendant received and retained Joseph's monthly income which had been designated to be Applied Income by DSS and which was required to be paid to the plaintiff. Finally the plaintiff alleges it has been damaged by defendant's failure to pay the Applied Income to the plaintiff. The court finds these allegations state a legally sufficient claim that Ms. Lumpkin's failure of payment was a detriment to the plaintiff. The motion to strike the second count is denied.
For the forgoing reasons the court denies the defendant's motion to strike on counts one and two, and grants the motion to strike count three.