Opinion
No. CV 075002152
June 5, 2008
In her complaint, filed on March 30, 2007, plaintiff Terry Oakes Bourret alleges in a single count that the defendant, Donald Miller, negligently operated a motor vehicle that struck her vehicle from the rear, causing her multiple injuries. On January 24, 2008, the plaintiff filed a pleading entitled "Motion to Add an Additional Party Plaintiff and an Additional Count Claiming Implied Contract." The motion was granted by the court on February 9, 2008 which added Donald Bourret, Terry's husband, as the additional plaintiff, and a second count to the complaint, labeled Implied Contract.
In the second count plaintiffs Terry Oakes Bourret and her husband, Donald Bourret, allege that they operate a painting business and that on the day of the collision, Terry Oakes Bourret was driving a family owned vehicle to a location to paint. They further allege that the injuries resultant from the automobile accident has diminished her ability to paint and resulted in a loss of income to their business, and ultimately to them. In addition, the plaintiffs allege that they "acted in reliance that the defendant would not drive his vehicle into the rear of their vehicle all to their detriment."
Motion to Strike
Defendant Donald Miller has filed a motion to strike count two of the plaintiffs' amended complaint on the following grounds: 1) that no cause of action exists for the breach of an implied contract upon which a spouse can recover for injuries allegedly sustained by the other spouse in a motor vehicle accident under Connecticut law; and 2) that the plaintiffs have not alleged the necessary elements to sustain a breach of contract claim because there is "no connection" between the defendant and Donald Bourret other than the alleged motor vehicle accident between him and Terry Oakes-Bourret. The defendant also asserts that Donald Bourret's only realistic claim derivative of the alleged injuries to his wife is one for a loss of consortium. In ruling on a motion to strike a complaint the court assumes the truth of the allegations challenged, and determines whether as a matter of law they legally are sufficient to state a cause of action.
Whether Contract Implied
Connecticut courts have repeatedly held that the necessary elements for a breach of contract claim "are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn.App. 77, 81, 887 A.2d 420 (2007), cert. denied, 285 Conn. 921 (2008). This requirement has been held to apply to both express and implied contracts. See id.
Under Connecticut law there exists two distinct types of implied contracts, those implied in fact and those implied in law. See Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). The formation of "[a]n implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties." Id., 573-74. "Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 804-05, 826 A.2d 1066 (2003).
Courts have distinguished the formation of a contract implied in fact from a contract implied in law. "[A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made . . . An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party . . . Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Citations omitted, internal quotation marks omitted.) Vertex v. Waterbury, supra, 278 Conn. 574. Although the language "may arise" is used in the opinion, implying that a contract implied in law is a broader concept, the Connecticut Supreme Court has repeatedly held unjust enrichment analogous with an implied in law contract, essentially rendering the two terms interchangeable. See id., 573-74; Yale Diagnostic Radiology v. Estate of Foundation, 267 Conn. 351, 359, 838 A.2d 179 (2004); Meaney v. Connecticut Hospital Ass'n., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994). Furthermore, the same elements which are necessary to establish unjust enrichment are commonly used by the court when examining a breach of a contract implied in law claim. See, e.g., Vertex v. Waterbury, supra, 278 Conn. 573-75 (trial court's jury instructions regarding an implied contract claim were inadequate due to failure to instruct jury on the requisite elements to prove unjust enrichment).
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex v. Waterbury, supra, 278 Conn. 573.
In their response to the defendant's motion to strike, the plaintiffs cite the Connecticut Appellate Court case Bross v. Hillside Acres Inc., 92 Conn.App. 773, 887 A.2d 420 (2005) in support of their argument that an implied contract may be pleaded in the alternative or in conjunction with a tort action. Although the outcome of the Bross decision does support the plaintiffs' proposition, that case is distinguishable from the present case. In Bross, the court held that the plaintiff stated a claim upon which relief could be granted because he "alleged all of the essential elements of a breach of an implied contract claim." Id., 782. The court further noted that "[a]lthough the plaintiff's second amended complaint is sparse, the allegations and their accompanying implications, if proved, would support the claim for breach of an implied contract." Id.
In this case, the plaintiffs have not alleged the requisite elements in their complaint, and, therefore, Bross is distinguished. The plaintiffs have not alleged the formation of an implied in fact contract, which requires that (1) they rendered services under circumstances indicating that they expected to be paid therefor, and (2) the defendant, knowing such circumstances, availed himself of the benefit of those services; nor have the plaintiffs alleged the formation of an implied in law contract, which requires that (1) the defendant was benefitted, (2) the defendant unjustly did not pay the plaintiffs for the benefits, and (3) the failure of payment was to the plaintiffs' detriment.
Conclusion
Accordingly, for the foregoing reasons, the defendant's motion to strike the second count should be and hereby is granted.
Plaintiff Terry Oakes Bourret's claim for loss income as a painter is alleged in the First Count.