Opinion
No. CV 04-0489608 S
December 10, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 107)
This is a collection action wherein the plaintiff, Jewish Home for the Aged, Inc., seeks to recover $73,387.10 for long-term care and services provided to Thomas Nuterangelo. The plaintiff has sued three defendants: Thomas Nuterangelo, Anita Nuterangelo (spouse of Thomas Nuterangelo), and Michael Koenigsberg (conservator of the estate of Thomas Nuterangelo). In the present motion, Anita Nuterangelo has moved to strike the four counts of the complaint that pertain to her. Those counts are: count two (common-law duty of support), count three (statutory liability for support), count four (statutory liability for care and services that have gone to the support of the family), and count five (statutory liability for services in the nature of hospital services).
Background
As applicable to Anita Nuterangelo, the complaint alleges that the plaintiff is a chronic care and convalescent facility that provides long-term care to its patients/residents that includes medical care, therapy, skilled nursing, room and board, meals, prescription medicine and medical supplies. The complaint further alleges that it provided such services to Thomas Nuterangelo between June 18, 2003 and April 13, 2004. The complaint further alleges that Thomas Nuterangelo failed to pay for these services.
In addition to the above, the complaint alleges that during the relevant times Anita Nuterangelo was the spouse of Thomas Nuterangelo and has both common-law and statutory liability for the cost of the services provided to her husband.
Discussion
The purpose of a motion to strike is to test the legal sufficiency of a complaint to state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 224 Conn. 269, 270 (1998). In deciding a motion to strike, the court is limited to a consideration of the facts alleged in the complaint. Doe v. Marselle, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996). A "speaking" motion to strike (one imparting facts outside the pleadings) will not be granted. Id.
For the purpose of a motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). In addition, the court must construe the facts in the complaint most favorably to the plaintiff. Faulkner v. United Technologies, Corp., 240 Conn. 576, 580 (1997).
Count two alleges that Anita Nuterangelo is liable to the plaintiff based on a "common-law duty to support her husband." Count two, paragraph 6. The problem with this count is that the common-law right of action known as the doctrine of necessaries could only be asserted against husbands. Yale University School of Medicine v. Scianna, 45 Conn.Sup. 84, 19 Conn. L. Rptr. 77 (1997). This was because, at common-law, a married woman had no property and therefore could make no contracts. Id., 1W. Blackstone, Commentaries on the Laws of England (1807) p. 442. Indeed, it was this gender bias in the common law that led to the promulgation of the Married Women's Act of 1877. Public Acts 1877, c. 114. This statute created a new cause of action making spouses liable for the cost of any article purchased by either that went to the support of the family. Id., § 2. This statutory remedy was, however, independent of the common-law doctrine of necessaries. Buckingham v. Hurd, 52 Conn. 404, 406 (1884). The point is that the common-law duty of support applied only to husbands.
The motion to strike count two must be granted.
The remaining three counts against Anita Nuterangelo allege statutory liability pursuant to General Statutes § 46b-37. As applicable to the present motion, that statute provides:
(a) Any purchase made by either a husband or wife in his or her own name shall be presumed, in the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.
(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife . . . (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both.
Section 46b-37(a) and (b).
This statute places liability on a married woman where none existed at common law. Yale University School of Medicine v. Collier, 206 Conn. 31, 36 (1988). As such, the statute is governed by the principle that statutes in derogation of the common law should receive strict construction and not be extended or enlarged by the mechanics of construction. Id.
Count three alleges liability under § 46b-37 for "the support provided to her husband." Count three, paragraph 9. When strictly construed, the statute does not create such a broad obligation of support as asserted by the plaintiff. To the contrary, in drafting the statute, the legislature was very specific in identifying the types of expenses covered — services of a physician or dentist, hospital expenses, rental of a dwelling, and articles that have gone to the support of the family.
The motion to strike count three must be granted.
For the same reason, the motion to strike count five must also be granted. Count five alleges statutory liability against Anita Nuterangelo for "services to . . . Thomas Nuterangelo . . . in the nature of hospital services." Count Five, paragraph 12. The statute does not establish liability for services "in the nature of hospital services." It establishes liability for "hospital expenses." Strict construction does not allow expansion of statutory liability as alleged by the plaintiff.
The motion to strike count five is granted.
Finally, count four alleged liability for services that "have gone to the support of the family." As stated above, § 46b-37 creates joint spousal liability for any article purchased by either spouse which has in fact gone to the support of the family. Section 46b-37(b)(4). Construed in favor of the plaintiff, this count states a legally sufficient cause of action under the statute.
Anita Nuterangelo's claims in her motion that she was estranged from her husband since before July 11, 1993 when she published a newspaper notice that she would not be responsible for his debts. While the statute does recognize a so-called separation defense, see 46b-37(d), such assertions are beyond the allegations in the complaint and may not be considered on a motion to strike.
CONCLUSION
For the reasons set forth above, the motion to strike is granted as to count two, count three and count five, and denied as to count four.
Devlin, J.