Winikoff v. Watson

Full title: SCOTT WINIKOFF v. CHARLES WATSON, M.D. ET AL

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Nov 27, 2007

2007 Ct. Sup. 20041 (Conn. Super. Ct. 2007)

Opinion

No. CV 07 5008355S

November 27, 2007

MEMORANDUM OF DECISION AS TO DEFENDANT'S MOTION TO STRIKE

DEBORAH KOCHISS FRANKEL, J.

This is an action regarding a dispute between members of a medical practice regarding allegations made concerning abuse of drugs. The plaintiff has plead alternately that the defendant is personally liable, that is he was acting outside the scope of his employment and also acting within the scope of his employment.

The defendant has filed a Motion to Strike counts sixteen and seventeen, count eighteen, counts nineteen and twenty.

DISCUSSION OF THE LAW

The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).

The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).

AS TO COUNT SIXTEEN AND SEVENTEEN-TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS AND COUNT EIGHTEEN-TORTIOUS INTERFERENCE WITH ECONOMIC OPPORTUNITY

The Connecticut Supreme Court "has long recognized a cause of action for tortious interference with contract rights or other business relations." (Internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999). "A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 751 A.2d 1059 (2000). "[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means." (Citation omitted; internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., supra, 805-06.

The defendants point out that "[a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . . [but the agent] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Citations omitted; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21 (1998).

The Motion to Strike as to Count sixteen and count eighteen is denied, as to defendant Watson acting as an individual outside of the scope of his agency.

The Motion to Strike as to Count seventeen is granted.

AS TO COUNT NINETEEN AND TWENTY VIOLATION OF CUTPA

The holding in Fink v. Golenbock, 238 Conn. 183, 680 A.2d 1243 (1996) is dispositive on this issue. "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 . . ." General Statutes § 42-110g(a). A "person" is defined as, "a natural person, corporation, trust, partnership, incorporated or unincorporated association, and any other legal entity . . ." General Statutes § 42-110a(3). "CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely 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.' Trade or commerce, in turn, is broadly defined as `the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.' General Statutes § 42-110a(4). The entire act is remedial in character; General Statutes § 42-110b(d); Hinchliffe v. American Motors Corp., 184 Conn. 607, 615 n. 4, 440 A.2d 810 (1981); and must `be liberally construed in favor of those whom the legislature intended to benefit' . . . Concept Associates, Ltd v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994)." Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995). We conclude that the provision of medical services falls within CUTPA's definition of trade or commerce as `the distribution of any services . . ." Fink, Id., 21-213

In Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 480, the court held that it was not the employment relationship that was dispositive, but the defendant's conduct. The court concluded that by falsely informing clients and business contacts that Larsen Chelsey was going out of business, by taking that client base to a competitor and by taking Larsen Chelsey employees to a competitor, the defendant had engaged in unfair trade practices in violation of CUTPA. Id., 494.

"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 — whether, 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 businessmen] . . . 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." (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-06, 612 A.2d 1130 (1992).

The plaintiff herein has alleged that it suffered ascertainable losses, namely loss of malpractice insurance, resulting in the loss of employment at Milford Anesthesia Associates and New London Anesthesia, therefore, motion to strike count nineteen and twenty is denied.