Opinion
No. CV08-5007118
August 22, 2008
MEMORANDUM OF DECISION
ISSUE
Whether the court should grant the defendants' combined motions to strike counts one through seven (7), nine (9), and eleven through fourteen (11-14). The court holds that the motions as to counts one, two, nine, thirteen and fourteen are denied, and the motions as to counts three, four, five, six, seven, eleven and twelve are granted.
I FACTS
On December 20, 2007, the plaintiff, Zygmunt Golek, filed a fourteen-count complaint against the defendants, St. Mary's Hospital (hereinafter St. Mary's), Stanley Dudrick and the Accreditation Council for Graduate Medical Education (hereinafter ACGME). In his complaint, the plaintiff alleges that in order to practice and to become "board eligible" and/or "board certified" in general surgery he was required to complete an accredited training program that required participation and completion of a general surgery residency program. St. Mary's was a sponsoring institution and offered a general surgery residency program approved and accredited by ACGME. On August 11, 2004, the plaintiff began the residency program at St. Mary's as a postgraduate year 2 ("PGY 2") junior resident, and was subsequently promoted to a postgraduate year 3 ("PGY 3") resident position on July 1, 2005, and was skip promoted to the position of postgraduate year 5 ("PGY 5") resident on July 1, 2006.
To fulfill the requirements of the residency program the plaintiff needed to complete five post-graduate years, one of which must be as chief resident.
The plaintiff alleges that with each post-graduate year he entered into a one-year Residency Agreement with St. Mary's. PGY 2 was for the duration of August 11, 2004 through June 30, 2005. PGY 3 was for the duration of July 1, 2005 through June 30, 2006. PGY 5 was for the duration of July 1, 2006 through June 30, 2007.
The plaintiff further alleges that in March of 2007 he was seeking a cardio-thoracic fellowship and that on March 24, 2007, he sought a letter of recommendation from Dudrick, the Director of St. Mary's Program in Surgery. The plaintiff alleges that Dudrick informed him in blunt, profanity-laden language that he would not write the letter and that he may not even graduate. The plaintiff alleges that during the following week, at a meeting called by Dudrick, he was informed that he would not be promoted to the chief resident position, but would instead be required to repeat PGY 5. The plaintiff claims that he was injured when St. Mary's pronounced that he had not satisfactorily completed residency year PGY 5 and refused to advance him to the next year of the program.
This fellowship was to commence upon his graduation from the residency program in June of 2008.
The plaintiff alleges that the tone, tenor and content of the remarks were so offensive and outrageous that, within hours of the meeting, he was hospitalized overnight at Waterbury Hospital for cardiac distress symptoms.
As to St. Mary's, the plaintiff brought eleven causes of action, sounding in two breaches of contract (count one and count two), wrongful termination (count three), failure to provide due process (count four), promissory estoppel (count five), negligent infliction of emotional distress (count six), intentional infliction of emotional distress (count seven), breach of statutory obligation of good faith and fair dealing (count eight), two breaches of the implied covenant of good faith and fair dealing (count nine and count ten) and tortious interference (count fourteen).
The plaintiff later withdrew the breach of statutory obligation of good faith and fair dealing (count eight) and one of the claims of breach of implied covenant of good faith and fair dealing (count ten).
The plaintiff asserted the following four claims against Dudrick: negligent infliction of emotional distress (count six), intentional infliction of emotional distress (count seven), breach of fiduciary duty (count thirteen) and tortious interference (count fourteen). Finally, the plaintiff brought two claims against ACGME, sounding in breach of contract (count eleven) and violation of the Connecticut Unfair Trade Practices Act (count twelve)
On February 11, 2008, ACGME filed a motion to strike counts eleven and twelve, along with a memorandum of law in support. The plaintiff filed a memorandum in opposition to the motion to strike on March 12, 2008. ACGME filed a reply memorandum on March 27, 2008. On March 28, 2008, St. Mary's filed a motion to strike counts one through ten and fourteen, accompanied by a memorandum of law in support. The plaintiff filed a memorandum in opposition to the motion to strike on March 27, 2008. St. Mary's filed a reply memorandum on July 1, 2008, to which the plaintiff filed a supplemental response on June 30, 2008. On March 27, 2008, Dudrick filed a motion to strike counts six, seven, thirteen and fourteen, along with a memorandum of law. On May 2, 2008, the plaintiff filed a memorandum in opposition. On June 17, 2008, the court heard oral argument as to all the above matters.
II Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegation 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); see Practice Book § 10-39. "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 form the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "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, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). By contrast, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
III. Discussion A. Breach of Contract (Count One and Count Two)
St. Mary's moves to strike count one and count two of the plaintiff's complaint on the grounds that the residency agreement, upon which the plaintiff relies, does not provide for the promotion of the plaintiff nor for the employment of the plaintiff after June 30, 2007. It argues that the residency agreement simply expired. St. Mary's further contends that the plaintiff misinterpreted the residency agreement to incorporate ACGME requirements and standards, and that the plaintiff fails to allege that ACGME has not approved or accredited St. Mary's residency program in which he participated. Lastly, it argues that the plaintiff lacks standing to base a breach of contract claim on any purported failure of the residency program to comply with ACGME requirements.
In his memorandum in opposition to St. Mary's motion to strike, the plaintiff counters that his complaint is replete with allegations that set forth St. Mary's breach of contract. As to count one, the plaintiff contends that he has pleaded facts showing that despite the fact that he had faithfully and with superior skill performed his duties under the residency agreement, St Mary's, through Dudrick, informed him that his contract for a categorical position would be terminated. The plaintiff asserts that he has alleged facts establishing that he had an expectation that he would be promoted each year and be ultimately appointed chief resident and that when this failed to occur, St. Mary's became liable for breach of its residency agreement.
The plaintiff asserts that a categorical position is one that is governed by ACGME guidelines, which means that he could rely on completing his residency at St. Mary's so long as he met minimum standards.
As to count two, the plaintiff argues that the facts contained therein sufficiently enumerate ways in which St. Mary's failed to comply with ACGME standards, which its residency agreement expressly stated it would follow. He argues specifically that St. Mary's failed to provide a suitable environment for an educational experience in General Surgery; failed to provide a training program pursuant to ACGME requirements; and failed to properly train and educate the plaintiff in accordance with ACGME standards. Finally, in response to St. Mary's claim that he lacks standing, the plaintiff argues that he has set out in his complaint facts sufficient to state a claim to third-party beneficiary status.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). When a plaintiff pleads a cause of action for breach of contract by setting forth a specific contractual obligation and alleges that it has not been met, this is sufficient to sustain a motion to strike. It is not necessary to allege specific terms of the contract. See Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293-94, 842 A.2d 1124 (2004). "Whether the terms of the contract support that allegation is a factual question to be determined by the fact finder and, therefore, is not at issue when the trial court considers a motion to strike." Id., 293.
"Where the essence of the complaint is that [an education institution] breached its agreement by failing to provide an effective education, the court is . . . asked to evaluate the course of instruction [and] called upon to review the soundness of the method of teaching that has been adopted by [that] educational institution . . . This is a project that the judiciary is ill equipped to undertake . . ." (Citations omitted; internal quotation marks omitted.) Gupta v. New Britain General Hospital, 239 Conn. 574, 590, 687 A.2d 111 (1996).
"There are . . . at least two situations wherein courts will entertain a cause of action for institutional breach of a contract for education services. The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field . . . The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program." (Citations omitted.) Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93.
Here the plaintiff has clearly pleaded a cause of action for breach of contract that fits into the Gupta exceptions, by setting forth a specific contractual obligation and alleging that it has not been met. In count one, the plaintiff alleges that St. Mary's breached its one-year residency agreement with him by (1) terminating his residency prior to his completion of the entire surgery residency program in violation of ACGME's Program Requirements for Residency in Surgery; (2) failing to provide curriculum it contractually agreed to provide; (3) failing to provide ongoing didactic learning as required by ACGME; (4) having more residents than available positions for chief residents; (5) failing to comply with working hours restrictions; and (6) having a residency agreement that did not comply with ACGME requirements. In count two, the plaintiff further claims that St. Mary's breached its residency agreement by (1) failing to provide a suitable educational environment; and (2) failing to provide a training residency program pursuant to ACGME standards.
As for St. Mary's argument that the plaintiff lacks standing to base a breach of contract claim on any purported failure of the residency program to comply with ACGME requirements, the law "regarding the creation of contract rights in third parties in Connecticut is . . . well settled. [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although . . . it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be because the parties to the contract so intended." (Citations omitted; internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003).
The plaintiff has alleged in his complaint that the residency agreement between him and St. Mary's incorporates ACGME standards. Whether this is true or not is irrelevant at this stage of the proceeding. The sole inquiry is whether the allegations, if proved, would state a basis for a claim. The plaintiff has presented sufficient facts to establish himself as a third party beneficiary.
St. Mary's motion to strike count one and count two is hereby denied.
B. Wrongful Termination (Count Three)
Turning to St. Mary's motion to strike count three of the plaintiff's complaint, St. Mary's argues that it should be stricken because the plaintiff was not an employee "at will." With respect to the employment status of the plaintiff at the time of his termination, St. Mary's argues that he was employed pursuant to a fixed term contract, and was not, therefore, an employee "at will." In support of its argument, it emphasizes the plaintiff's admission in his complaint that he had an employment contract with St. Mary's and that this employment contract is the basis for the plaintiff's breach of contract claims. The plaintiff, however, argues that he is permitted to plead two alternative legal theories in the same complaint, even if they are legally inconsistent.
The traditional rule in Connecticut governing employment at will contracts of permanent employment, or employment for an indefinite term, is that such contracts are terminable at will of either party without regard to cause. See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 225, 837 A.2d 759 (2004). The doctrine of wrongful discharge is a narrow exception to this rule. See Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997). "[T]he right to recover in tort for wrongful discharge extends only to employees at will." Tomlinson v. Board of Education, 226 Conn. 704, 730 n. 18, 629 A.2d 333 (1993); D'Ullisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1986).
Thus, an employee who was hired pursuant to a term contract of fixed duration would not have a cause of action in wrongful discharge. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 211 n. 1. In D'Ulisse-Cupo "the court found that the plaintiff was not an employee at will, but rather an employee hired pursuant to a term contract of fixed duration. The court therefore found that the plaintiff had not been discharged from her employment; she simply had not been rehired upon the expiration of her contract." Id. 210.
The plaintiff alleges in the complaint that he was employed pursuant to a series of written contracts of fixed duration of one year. Nowhere in his complaint has the plaintiff pleaded that he was employed "at will." Accordingly, the plaintiff's claim of wrongful discharge is legally insufficient, and St. Mary's motion to strike count three is hereby granted.
C. Failure to Provide Due Process (Count Four)
St. Mary's next argues that the plaintiff's violation of due process claim against it in count four is legally insufficient because the plaintiff fails to allege what property right he claims to possess. St. Mary's further argues that the plaintiff has failed to allege that the incidents in the complaint were the result of state action or that the residency agreement incorporated constitutional due process guarantees. In opposition, the plaintiff asserts that St. Mary's is correct in arguing that the mere receipts of state or federal funds does not equate to state action, rather he contends that the language contained in his residency agreement incorporates ACGME Institutional Requirement § III(D)(1)(f), which requires due process in the instant action.
Section III(D)(1)(f) of the ACGME Institutional Requirements, entitled Grievance Procedures and Due Process, provides in relevant part: "The Sponsoring Institution must provide residents with fair and reasonable written institutional policies on and procedures for grievance and due process. These policies and procedures must address (1) academic or other disciplinary actions taken against residents that could result in dismissal, nonrenewal of a resident's agreement or other actions that could significantly threaten a resident's intended career development . . ."
"[A] plaintiff claiming due process protection under the [f]ourteenth [a]mendment must possess a `property' or `liberty' interest that is somehow jeopardized by governmental action, necessitating a pre-or post-deprivation hearing as a safeguard . . . However, [t]he [d]ue [p]rocess [c]lause of the [fourteenth] [a]mendment is not a guarantee against incorrect or ill-advised personnel decisions . . . An interest protected or cognizable under the due process clause must have a basis in existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 436, 673 A.2d 514 (1996).
The constitutional protections of individual rights and liberties extend only to government actions. Since the civil rights cases . . . the United States Supreme Court has maintained that, against private conduct, however discriminatory or wrongful the [fourteenth [a]mendment offers no shield. Therefore, in determining whether a claimant's due process rights have been violated, the threshold inquiry is whether the challenged conduct constitutes state action." (Citations omitted; internal quotation marks omitted.) MedValUSA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, 641, 872 A.2d 423 (2005).
The plaintiff has failed to allege and has even admitted that St. Mary's is not a state actor, nor has he alleged that its employment decisions constituted state action. Furthermore, while the plaintiff has pleaded that the residency agreement incorporated ACGME requirements, nowhere has he pleaded any constitutional due process guarantees provided via the agreement. St. Mary's motion to strike count four of the plaintiff's complaint is hereby granted.
D. Promissory Estoppel (Count Five)
St. Mary's moves next to strike count five from the plaintiff's complaint arguing that the count is legally insufficient as the plaintiff cannot base claims of promissory estoppel and breach of contract on the same express written contract signed by the parties. St. Mary's contends that promissory estoppel is a contract alternative and cannot be maintained where there is an express contract between the parties governing the same subject matter. The plaintiff reasons that he has the right to plead in the alternative and that he has properly alleged all elements of a promissory estoppel claim.
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . [The] court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citation omitted, internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003). "An action for promissory estoppel generally lies when there is no written contract, or the contract cannot be enforced for one reason or another." Rodia v. Coppola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002816 (November 25, 2005, Sequino, J.) (40 Conn. L. Rptr. 299).
"Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); see also Practice Book § 10-25. The Connecticut Supreme Court has "permitted the jury to consider in the alternative claims for breach of contract and for promissory estoppel when there is an issue of whether the agreement may be too indefinite to allow for contract formation." Glazer v. Dress Barn, 274 Conn. 33, 88-89, 873 A.2d 929. In the present action there are no disputes concerning the legitimacy of the residency agreement or the definiteness of the parties' contract terms.
"While the [plaintiff] may be entitled to plead counts with alternative legal theories, (he] cannot allege promissory estoppel within the same count that alleges a binding contract . . ." (Emphasis in original.) Pourmaleki v. Eskierski, Superior Court, judicial district of New Britain, Docket No. CV 07 5004715 (March 28, 2008, Pittman, J.). The language of count five does just that, alleging that the parties had a contract which the plaintiff fully performed and which St. Mary's breached. St. Mary's motion to strike count five is hereby granted.
E. Negligent Infliction of Emotional Distress (Count Six) CT Page 13421
St. Mary's and Dudrick move to strike count six which claims that they negligently inflicted emotional distress on the plaintiff on the grounds that the plaintiff has failed to allege that they "engaged in unreasonable conduct in the termination process." The defendants argue that in the employment setting courts limit negligent infliction of emotional distress claims to the termination process. The plaintiff counters by arguing that he has clearly alleged all the elements of negligent infliction of emotional distress. He argues that whether the offensive conduct took place in the actual notification of termination is irrelevant.A cause of action for negligent infliction of emotional distress requires the plaintiff to plead and prove "that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88. "An individual making an emotional distress claim must show that a reasonable person would have suffered emotional distress . . . that . . . might result in illness or bodily harm . . . as the result of the defendant's conduct." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 755, 792 A.2d 752 (2002). "[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88. "The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Id., 88-89. An employer "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, supra, 259 Conn. 762-63.
Count six consists of nothing more than an incorporation of the complaint's previous allegations with the inclusion of Dudrick's role at St. Mary's. For the count to be legally viable, it is necessary to allege wrongful acts that occurred during the termination process. The act of termination alone is not considered extreme and outrageous. Count six fails to allege any unreasonable conduct that occurred during the termination. Instead, count six merely incorporates the claimed interaction between Dudrick and the plaintiff, all of which occurred before the plaintiff's alleged termination. St. Mary's and Dudrick's motions to strike count six are hereby granted.
F. Intentional Infliction of Emotional Distress (Count Seven)
In support of striking count seven, St. Mary's and Dudrick argue that the plaintiff has failed to allege the necessary elements to establish a claim of intentional infliction of emotional distress. They assert that the plaintiff has failed to allege extreme and outrageous conduct. The plaintiff counters that he has properly pleaded the necessary elements of intentional infliction of emotional distress. He contends that he has more than sufficiently alleged facts showing that St. Mary's, through Dudrick, intended to inflict emotional distress by Dudrick's actions or knew or should have known that the conduct at issue would result in harm to him.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress] four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3)that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury.
* * *
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"There is no bright line rule to determine what constitutes extreme and outrageous conduct . . . The court looks to the specific facts and circumstances of each case in making its decision . . . However, [a] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility . . . [T]hose cases in the employment context that have granted motions to strike because the allegations do not sufficiently describe extreme and outrageous behavior are more often those that allege little more than that the plaintiff was terminated without just cause."(Internal quotation marks omitted.) Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72).
In Appleton v. Board of Education, supra, 254 Conn. 211, the plaintiff was allegedly subjected to condescending comments in front of colleagues, two psychiatric examinations, a police escort from the workplace, suspension and a forced resignation. In finding that the defendant's alleged conduct was not extreme and outrageous, the court held that because "the defendant's actions . . . were not so atrocious as to exceed all bounds usually tolerated by decent society, their conduct is insufficient to form the basis of an action for intentional infliction of emotional distress." Id., 212. The conduct alleged by the plaintiff in the present case does not even rise to the level of the alleged conduct asserted by the plaintiff in Appleton, which the court found not to be extreme and outrageous. Yelling at an employee and even belittling him in front of his colleagues while certainly not appropriate, is not the sort of extreme and outrageous behavior that would lead an average member of the community to exclaim, "Outrageous!" Thus, because the conduct by the defendant in Appleton was found not to be extreme and outrageous, it is submitted that the alleged conduct of the defendant in the present case does not rise to the level of extreme and outrageous. St. Mary's and Dudrick's motions to strike count seven are hereby granted.
G. Breach of Implied Covenant of Good Faith and Fair Dealing (Count Nine)
St. Mary's next moves to strike count nine on the ground that the plaintiff has failed to allege bad faith on its part. St. Mary's argues that the residency agreement contains none of the terms allegedly violated in count nine and thus the plaintiff cannot allege that St. Mary's breached a specific contract term and it cannot, as a matter of law, be liable for acting in bad faith concerning terms which are not a part of the parties' written contract. The plaintiff counters, arguing that his complaint includes a litany of factual allegations which support this claim.
"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "Essentially, it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 834, 798 A.2d 445 (2002)
"To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, supra, 281 Conn. 240. Bad faith involves "actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Internal quotation marks omitted.) New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 661, 927 A.2d 333 (2007). "Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 334, 880 A.2d 106 (2005). "[B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain." (Citations omitted; internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 43, 925 A.2d 334 (2007).
"[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." (Internal quotation marks omitted.) Homes of Westport, LLC v. Wilton Bank, Superior Court, judicial district of Fairfield, Docket No. CV 06 0403842 (October 2, 2007, Maiocco, J.T.R.).
In this case, the plaintiff has alleged facts sufficient to satisfy each of the three essential elements as set forth above. The plaintiff has alleged: That he and St. Mary's were parties to a residency agreement which required St. Mary's to produce within four months prior to the end of the agreement term a written notice of intent not to renew it; that St. Mary's did not provide said written notice to the plaintiff, nor did it give him an opportunity to timely and effectively prepare for a Grievance Review panel meeting; that St. Mary's acted in bad faith when it terminated his employment in retaliation for his criticism of the residency program, and did so without a meaningful investigation, due process or concern for the truth.
The plaintiff, therefore, alleges, that St. Mary's breached its respective contracts with him due to a possible sinister or bad faith motive. St. Mary's motion to strike count nine is denied.
H. Breach of Contract (Count Eleven)
ACGME moves to strike count eleven of the plaintiff's complaint on the grounds that the plaintiff lacks standing to sue ACGME because he is not a direct beneficiary to the contract. Furthermore, ACGME argues that if standing is to be found, the plaintiff has failed to state a claim for breach of the accreditation contract between ACGME and St. Mary's. The plaintiff counters arguing his status as a third-party beneficiary to the accreditation contract. He further contends that he has set out all of the necessary elements for a valid breach of contract claim.
Reiterating the court's position from above, "[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] . . ." Dow Condon, Inc. v. Brookfield Development Corp., supra, 266 Conn. 580-81. The plaintiff has specifically pleaded in paragraph 36 of count eleven that "[t]he primary or direct purpose of the contract and/or agreement between [St. Mary's] and ACGME was to benefit the [St. Mary's] residents, to prepare residents to function as qualified practitioners of surgery, and to prepare residents to become `board eligible' and/or `board certified.'" This is sufficient for the purposes of a motion to strike to establish third-party beneficiary status on the plaintiff's part.
Moving to ACGME's next argument that the plaintiff has failed to state a claim for breach of the accreditation contract between ACGME and St. Mary's, the court finds that the plaintiff has not pleaded a cause of action for breach of contract that fits into the Gupta exceptions as set forth above. The plaintiff has notably not alleged that ACGME failed in some fundamental respect by not offering any of the courses necessary to obtain certification in a particular field or by not fulfilling a specific contractual promise distinct from any overall obligation to offer a reasonable program. Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93. The plaintiff has merely alleged that ACGME failed to properly enforce, oversee and regulate St. Mary's residency program. ACGME's motion to strike count eleven is hereby granted.
I. Violation of Connecticut Unfair Trade Practices Act (Count Twelve)
ACGME next moves to strike count twelve alleging a violation of CUTPA on the grounds that: (1) ACGME is not involved in a "trade or commerce" as defined by CUTPA, (2) the plaintiff fails to allege that ACGME's conduct rises to the level of an "unfair trade practice" and (3) the plaintiff fails to allege substantial aggravating circumstances attendant to the alleged breach of contract. The plaintiff counters that the allegations in count twelve constitute a valid cause of action under CUTPA.
Section 42-110b(a) provides 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." "To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn.App. 704, 711, 757 A.2d 1207 (2000). "CUTPA, by its own terms, applies to a broad spectrum of commercial activity . . . 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)." (Internal quotation marks omitted.) Eders Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005).
It is well settled that in determining whether a practice violates CUTPA, the Connecticut Supreme Court has 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 — 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 businesspersons] . . . 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." (Citation omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
"A breach of contract claim can make out a legally sufficient CUTPA claim [only] as long as there are substantial aggravating circumstances." (Citation omitted; internal quotation marks omitted.) Alliance Food Management v. Gems Sensors, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002996, (June 12, 2007, Gallagher, J.). Although the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation, "[a] simple contract breach is not sufficient to establish a violation of CUTPA . . . where a count simply incorporates the reference to the breach of contract claim and does not set forth how or in what respect the defendant's activities are either immoral, unethical, unscrupulous, or offensive to public policy." (Internal quotation marks omitted.) Bluezone Foundation v. Paradise Properties, Superior Court, judicial district of New London, Docket No. 555904 (July 24, 2001, Hurley, J.T.R.).
"Although there is a split of authority [among the decisions of the Superior Court] regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates, Superior Court, judicial district of Windham, Docket No. CV 03 0070166 (June 21, 2007, Martin, J.). "The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances violation." (Internal quotation marks omitted.) Ruby v. Chase Manhattan Bank, Superior Court, judicial district of New Britain, Docket No. CV 00 0505309 (March 25, 2002, Quinn, J.) [31 Conn. L. Rptr. 683]. "CUTPA liability should not be imposed, however, when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future act coupled with a present intent not to fulfill the promise." Id.
To withstand a motion to strike, the plaintiff must have alleged sufficient aggravating factors beyond a mere simple breach of contract. In count twelve, the plaintiff incorporates the allegations of the eleventh count for breach of contract and further alleges that ACGME is in "trade or business" in the State of Connecticut. In paragraphs 46 through 48 of count twelve the plaintiff attempts to set forth actions that ACGME took that violated CUTPA. The plaintiff has merely stated that ACGME has failed to act; he has not alleged any substantial aggravating circumstances surrounding the breach of contract necessary to establish a CUTPA violation. He merely alleges legal conclusions that ACGME's conduct was "unfair, deceptive, unscrupulous, and unlawful" unsupported by sufficient facts.
ACGME's motion to strike count twelve is hereby granted.
J. Breach of Fiduciary Duty (Count Thirteen)
Dudrick moves to strike count thirteen on the ground that the plaintiff has failed to allege that he and Dudrick were in a fiduciary or confidential relationship. The plaintiff counters, contending that he has sufficiently alleged that Dudrick owed him a duty to fairly represent his interests, and that his failure to do so resulted in a breach of fiduciary duty.
"To assert a claim for breach of a fiduciary duty the plaintiff has the burden of proving the existence of a fiduciary relationship." United States Financial Group, Inc. v. Salazar, Superior Court, judicial district of Danbury, Docket No. CV 00 0339753 (April 23, 2002, Moraghan, J.T.R.). In the context of discussing a claim of breach of fiduciary duty, the Supreme Court has observed that "[i]t is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.
* * *
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." (Citations omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2002). On the other hand, "[i]n the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Id., 39. Furthermore, "[t]he law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Id., 41.
"It is inappropriate to decide a question of fact on a motion to strike . . . It is appropriate, however, for this court to decide whether the plaintiff . . . has [pleaded] sufficient facts to allege a fiduciary relationship." (Internal quotation marks omitted.) Charter Oak Fire Ins. Co. v. Blue Sky Partnership, Superior Court, judicial district of Hartford, Docket No. CV 00 0596646 (August 30, 2001, Berger, J.). Construing the allegations most favorably toward sustaining the claim, there are sufficient facts that have been pleaded by the plaintiff to support, at this stage, a claim that a fiduciary relationship could have existed which was breached by the defendant. The plaintiff has alleged his relationship with Dudrick entailed a degree of trust and confidence. Furthermore, the plaintiff has alleged that Dudrick had superior knowledge, skill and expertise.
Dudrick's motion to strike count thirteen is hereby denied.
K. Tortious Interference (Count Fourteen)
St. Mary's and Dudrick move to strike count fourteen on the ground that the plaintiff has not properly pleaded a cause of action of tortious interference with business expectancies. The plaintiff contends that the allegations in his complaint properly fulfill all of the requirements for this claim.
"A successful action for tortious interference with business expectancies requires the satisfaction of three elements: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).
It is "clear that not every act that disturbs a contract or business expectancy is actionable . . . [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." (Citations omitted; internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). "In the terminology of the Restatement [(Second) of Torts], the test is whether the actor's behavior is improper." (Internal quotation marks omitted.) Id., 261. "The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999) (quoting 4 Restatement (Second), Torts § 766, comment (s) (1979)).
In the present case, the plaintiff has alleged that he had a business relationship with Greenwich Hospital, and that Dudrick "made defamatory and slanderous accusations and communicated intentional, false, and misleading information about [him] for the purpose of injuring [his] professional reputation and for the purpose of costing [him] economic opportunities." He alleges that Dudrick conveyed false information regarding his conduct to Greenwich Hospital out of personal animosity towards him and that Dudrick was acting outside the scope of his authority and abused his position as Director at St. Mary's. The plaintiff further claims that Dudrick's "intentional, improper, and tortious interference" caused him to be denied employment at Greenwich Hospital, causing him both economic loss and damage to his professional reputation.
At this stage, such allegations are sufficient to support a claim for tortious interference, and St. Mary's and Dudrick's motions to strike are denied.
IV Conclusion
For all the foregoing reasons, the defendants' respective motions to strike are denied as to counts one (1), two (2), nine (9), thirteen (13) and fourteen (14), and granted as to counts three (3), four (4), five (5), six (6), seven (7), eleven (11) and twelve (12).