Opinion
CV116010713.
12-24-2012
MARY ELIZABETH NURSING CENTER, INC. v. Merrily LYON
Jason Gregg DeGenaro, Guilford, for Mary Elizabeth Nursing Center, Inc. Gregory P. Carnese, Old Lyme, for Merrily Lyon.
UNPUBLISHED OPINION
Jason Gregg DeGenaro, Guilford, for Mary Elizabeth Nursing Center, Inc.
Gregory P. Carnese, Old Lyme, for Merrily Lyon.
MARTIN, J.
I
FACTS
On September 26, 2011, the plaintiff, Mary Elizabeth Nursing Center, Inc., filed a two-count complaint against the defendant, Merrily Lyon, alleging claims for breach of contract and negligence, respectively. In its complaint, the plaintiff alleges that the defendant failed to pay the plaintiff for various nursing facility services it provided to the defendant's father. On December 6, 2011, the plaintiff filed an answer, special defenses and a two-count counterclaim against the plaintiff. The first count of the defendant's counterclaim alleges that the plaintiff's attempt to collect the outstanding debt from the defendant violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1962 et seq., and the Connecticut Collections Practices Act (CCPA), General Statutes § 36a-645 et seq. The second count of the defendant's counterclaim alleges that the plaintiff's actions violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
On May 31, 2012, the plaintiff filed a motion for summary judgment as to both counts of the defendant's counterclaim on the grounds that the defendant's FDCPA claim does not apply to the plaintiff, the defendant's CCPA claim is preempted by federal law and the defendant's CUTPA claim does not apply to the transaction or action at issue and is also preempted by federal law. The plaintiff filed a memorandum in support of its motion. On August 3, 2012, the defendant filed an objection to the plaintiff's motion, accompanied by a memorandum of law in support.
Hereinafter, the plaintiff/counterclaim defendant will be referred to as the plaintiff, and the defendant/counterclaim plaintiff will be referred to as the defendant.
II
DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
A
The plaintiff argues that its motion for summary judgment should be granted as to the FDCPA claim in the first count of the defendant's counterclaim on the ground that the act does not apply to the plaintiff because the plaintiff is attempting to collect its own debt, and therefore is not a debt collector as defined under the law. The defendant counters that whether the plaintiff is a debt collector constitutes a genuine issue of material fact not proper for determination on summary judgment.
The FDCPA defines a debt collector as " any person who uses any instrumentality of interstate commerce or any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). " By definition ... a creditor collecting its own debt is not a debt collector. The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer's creditors ... Furthermore, the Act expressly does not apply to any officer or employer of a creditor while, in the name of the creditor, collecting debts for such creditor." (Internal quotation marks omitted.) Saunders v. Stigers, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 0054472 (October 20, 1999, Curran, J.), aff'd, 62 Conn.App. 138, 773 A.2d 971 (2001).
In the present case, the plaintiff submitted the affidavit of Christen Shelton, Esq., a representative for the plaintiff, in which Shelton testifies that the plaintiff is not a debt collector, but is attempting to collect its own debt for services it provided to the defendant's father. The defendant submits no evidence to the contrary. As noted herein, " [i]t is not enough ... for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). As a result, the court finds that the plaintiff is attempting to collect its own debt, and thus the FDCPA is inapplicable in the present case. Therefore, the plaintiff's motion for summary judgment as to the FDCPA claim in the first count of the defendant's counterclaim must be granted.
B
The plaintiff also argues that its motion for summary judgment should be granted as to the CCPA claim in the first count of the defendant's counterclaim on the ground that such a claim is preempted by federal law pursuant to the doctrine of conflict preemption. The defendant counters that her claim is not preempted by federal law because it is not impossible to comply with both the state and federal laws governing the present case.
Under the supremacy clause of the United States Constitution, " state laws that conflict with federal law are without effect." (Internal quotation marks omitted.) Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). In defining conflict preemption, our Supreme Court has stated: " [S]tate law is pre-empted to the extent that is actually conflicts with federal law. Thus, the [c]ourt has found pre-emption where it is impossible for a private party to comply with both state and federal requirements ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Internal quotation marks omitted.) Rodriguez v. Testa, 296 Conn. 1, 9, 993 A.2d 955 (2010). " In areas of coincident federal and state regulation, United States Supreme Court decisions counsel restraint in seeking out conflicts where none clearly exists ... The analysis must begin with the assumption that Congress did not intend to displace state law." (Citations omitted, internal quotation marks omitted.) Atlantic Mortgage & Investment Corp. v. Pervis, Superior Court, judicial district of New Haven, Docket No. SPNH 97 0561076 (December 3, 1997, Levin, J.) (21 Conn. L. Rptr. 619, 621).
In the present case, the plaintiff claims that CCPA significantly interferes with the plaintiff's federal rights under Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. § 1396 et seq.; specifically, the plaintiff's right to have the defendant sign a resident admission agreement that requires her to provide payment from her father's income or resources for care provided to him by the plaintiff pursuant to 42 U.S.C. § 1396r(c)(5)(B)(ii). CCPA serves to prohibit certain collection practices in the collection of debt. General Statutes § 36a-646 provides: " No creditor shall use any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect any debt." This court is not convinced that it is impossible for the plaintiff to comply with both the Medicaid Act and CCPA, or that CCPA stands as an obstacle to the accomplishment and execution of the full purposes and objectives intended by Congress in enacting the Medicaid Act. The provision under the Medicaid Act allowing a third party to be responsible for the payment of nursing facility services from the patient's own income and resources can be accomplished without using the " abusive, harassing, fraudulent, deceptive or misleading" collection practices that CCPA serves to prohibit. General Statutes § 36a-646. As a result, the court finds that the defendant's CCPA claim is not preempted by federal law, and the plaintiff's motion for summary judgment as to the CCPA claim in the first count of the defendant's counterclaim must be denied.
C
The plaintiff further argues that its motion for summary judgment should be granted as to the second count of the defendant's counterclaim alleging a violation of CUTPA on the grounds that the defendant is exempt from liability pursuant to General Statutes § 42-110c. Specifically, the plaintiff claims that it is a nursing facility regulated by the United States Department of Health and Human Services (HHS) under the Medicaid Act, and the resident admission agreement signed by the defendant containing the provision regarding the defendant's liability is in compliance with 42 U.S.C. § 1396r(c)(5)(B)(ii). Therefore, the plaintiff maintains that the transaction or action at issue is exempt from CUTPA scrutiny because, as a nursing facility regulated by HHS, its actions fall within the ambit of General Statutes § 42-110c. The defendant counters that the plaintiff's actions to collect a resident's debt from a third party do not fall within the § 42-110c exemption.
General Statutes § 42-110b(a), which states the basic prohibition of CUTPA, provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110c(a)(1) provides exemption from CUTPA liability for " [t]ransactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States ..." " The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption." General Statutes § 42-110c(b).
" [T]he burden [of proving the statutory exception under § 42-110c] is a difficult one to meet. To sustain it, a defendant must show more than the mere existence of a related or even overlapping regulatory scheme that covers the transaction. Rather, a defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive ... Accordingly, in order for the Section 42-110c(a)(1) exception to preclude CUTPA liability, [t]he agency or official must engage in overt and affirmative action to approve the course of conduct which is claimed to be an unfair or deceptive trade practice." (Citation omitted, internal quotation marks omitted.) JP Morgan Chase Bank v. O'Neil, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 6002552 (March 24, 2011, Mintz, J.) (51 Conn. L.Rptr. 710, 714-15).
In the present case, the court agrees that the plaintiff is a nursing facility regulated by HHS, and pursuant to the Medicaid Act, " an individual, who has legal access to a resident's income or resources available to pay for care in the facility, [may] sign a contract (without incurring personal financial liability) to provide payment from the resident's income or resources for such care." 42 U.S.C. § 1396r(c)(5)(B)(ii). The defendant does not argue, however, that the plaintiff does not have the right to request the defendant to sign a contract containing such a provision, or that the plaintiff's request to do so in the present case constitutes an unfair or deceptive act or practice. Instead, the defendant alleges that she is not responsible for the debt in the present case because she complied with the contract terms, and the plaintiff's collection practices are unfair and deceptive pursuant to CUTPA. The Medicaid Act governs the admission practices of medicaid funded nursing facilities such as the plaintiff. This regulatory scheme does not overtly approve or affirmatively permit the methods by which the plaintiff collects its debts, which is the practice that is alleged to be unfair or deceptive in the present case. As a result, the court finds that the plaintiff has not met its burden in proving that an exemption under § 42-110c bars the defendant's CUTPA claim, and therefore the plaintiff's motion for summary judgment as to the second count of the defendant's counterclaim on this ground must be denied.
The plaintiff also argues that its motion for summary judgment should be granted as to the second count of the defendant's counterclaim on the grounds that the defendant's CUTPA claim is preempted by federal law pursuant to the doctrine of conflict preemption. The defendant counters that Connecticut's CUTPA law does not conflict with federal law.
As discussed herein, conflict preemption occurs " where it is impossible for a private party to comply with both state and federal requirements ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"; Rodriguez v. Testa, supra, 296 Conn. at 9, 993 A.2d 955; and " [t]he analysis must begin with the assumption that Congress did not intend to displace state law." Atlantic Mortgage & Investment Corp. v. Pervis, supra, 21 Conn. L. Rptr. at 621.
In the present case, the plaintiff claims that CUTPA significantly interferes with the plaintiff's federal rights under the Medicaid Act to have the defendant sign a contract that requires her to provide payment from her father's income or resources for care provided to him by the plaintiff. The purpose of CUTPA is to " [provide] 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. Harris v. Bradley Memorial Hospital and Health Center, 296 Conn. 315, 351, 994 A.2d 153 (2010). Therefore, a CUTPA claim challenges the way that a person or entity conducts specific practices." Brooks v. Sallie Mae, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 09 6002530 (December 20, 2011, Jennings, J.T.R.) [ 53 Conn. L. Rptr. 274].
This court is not convinced that it is impossible for the plaintiff to comply with both the Medicaid Act and CUTPA, or that CUTPA stands as an obstacle to the accomplishment and execution of the full purposes and objectives intended by Congress in enacting the Medicaid Act. The provision under the Medicaid Act allowing a third party to be responsible for the payment of nursing facility services from the patient's own income and resources can be accomplished without utilizing the unfair or deceptive acts or practices that CUTPA serves to prohibit. As a result, the court finds that the defendant's CUTPA claim is not preempted by federal law, and therefore the plaintiff's motion for summary judgment as to the second count of the defendant's counterclaim on this ground must be denied.
CONCLUSION
Based on the foregoing, the court hereby grants the plaintiff's motion for summary judgment as to the FDCPA claim in the first count of the defendant's counterclaim, and hereby denies the plaintiff's motion for summary judgment as to the CCPA claim in the first count of the defendant's counterclaim and the second count of the defendant's counterclaim in its entirety.