Opinion
No. 560156
June 12, 2003
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (#142)
The plaintiffs, Staci Meehan and Chad Wright, allege in counts nine and ten of their amended complaint filed February 25, 2003, that the defendants, Mark Antonino, John Antonino, Girard Toyota and Joseph Pangelinan, violated the Connecticut Unfair Trade Practices Act (CUTPA). The defendants move to strike counts nine and ten insomuch as the counts seek to bring a CUTPA claim on behalf of Wright.
Facts
The facts are as follows. Meehan, a graduate student at the University of Connecticut, is the owner of a 2001 BMW M-3 convertible and a 1993 BMW 325i. Her live-in boyfriend, Wright, until shortly before the filing of this action, was an assistant parts manager at Antonino Acura in Groton, Connecticut. The defendant John Antonino is the president of both Antonino Acura and Girard BMW (a.k.a Car Service Co.). The defendant Mark Antonino is son of Join Antonino. The defendant Joseph Pangelinan is the service manager of Girard BMW.
In June 2001, Wright drove Meehan's 325i to Girard BMW for repairs to its hood and to have some minor engine work performed. In early July, Girard BMW claimed that the repairs had been completed. The plaintiffs paid more than $3,000 to Girard BMW for these repairs. The repairs were not properly made and the plaintiffs incurred additional expenses in having the vehicle returned to Girard BMW for further servicing. A second attempt to repair the 325i was unsuccessful as well.
On August 29, 2001, Wright delivered Meehan's M-3 to Girard BMW for repairs relating to a stereo speaker. Girard BMW contemporaneously completed, and Chad Wright concurrently signed, an invoice/work order, listing, among other things, the car's odometer reading. Soon after Wright delivered the car to the dealership, Mark Antonino obtained control over the M-3 and, without the owner's consent, took it out for a "joyride." While out joyriding, Mark Antonino damaged the front and right side of the vehicle.
When confronted by Meehan with the allegations of joyriding and damage, both Mark and Join Antonino denied any improper behavior. To hide their alleged misdeeds, the defendants altered the M-3's odometer readings.
John Antonino threatened to fire Wright and another employee who first informed Wright of Mark Antonino's joyride should Wright or Meehan take legal action against Girard BMW or Mark Antonino. Wright left his position with Antonino Acura shortly before filing this action in anticipation of being fired.
In counts nine and ten of the complaint, Wright alleges that the threat to fire him is an unfair act committed in trade or commerce by John Antonino and Girard BMW under the Connecticut Unfair Trade Practices Act.
Discussion
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771-72, 802 A.2d 44 (2000). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Id., 580. "A trial court in passing upon a motion to strike should not consider grounds other than those specified." (Citations omitted.) Meredith v. Police Commission, 182 Conn. 138, 140-41, 438 A.2d 27 (1980).
In their motion to strike filed January 27, 2003, the defendants set forth that counts nine and ten should be stricken from the complaint because an employment relationship, such as the one that existed between the defendants and the plaintiff Wright, does not constitute trade or commerce for purposes of CUTPA. In their memorandum of opposition to the defendants' motion to strike, the plaintiffs argue that "CUTPA confers standing to `any person' harmed by an unfair `act' in `trade or commerce'" and that Wright is such a person.
The Connecticut Unfair Trade Practices Act was enacted by the Connecticut General Assembly in 1973. General Statutes § 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." General Statutes § 42-110g (a) provides in part that "[a]ny person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages."
While CUTPA is remedial in nature and should be liberally construed, our Supreme Court has stated that "it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any `trade' or `commerce.'" Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 726, 627 A.2d 374 (1993). Although CUTPA does not cover employee-employer relationships; Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 669, 613 A.2d 838 (1992); the mere existence of such a relationship does not proscribe a CUTPA claim. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 493-94, 656 A.2d 1009 (1995). A court should look to the defendant's activities, if any, outside of the employee-employer relationship. Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 492. If the plaintiff alleges that the defendant engaged in activities in trade or commerce outside the employee-employer relationship, the plaintiff's CUTPA claim will not be struck. Id., 492-93.
Two recent superior court opinions, and a 1985 federal court opinion, have addressed fact patterns similar to the present case. In Tanner v. Darly Custom Tech, Inc., Superior Court, judicial district of Danbury, Docket No. CV 000340177 (February 8, 2001, Adams, J.), 29 Conn.L.Rptr. 415. the plaintiff alleged that his employer fired him, in part, because he refused to participate in his employer's unfair practices which were occurring in trade or commerce. The court granted the employer's motion to strike the plaintiff's CUTPA claim, holding that "even when unfair acts within trade or commerce are alleged, if the ultimate injury for which redress is sought occurs within the zone of the employment relationship, a claim under CUTPA will not lie." Id. The plaintiff "includes in his allegations certain activities of [his employer] which can be construed, for the purposes of this motion, as unfair practices occurring in its trade or commerce, the gist of [the plaintiff's] complaint, the actual injury he incurred, is not from those activities but from something which is at the very core of the employer-employee relationship — the loss of employment." Id.
In Jablonski v. Sheldon Precision, Superior Court, judicial district of Waterbury, Docket No. CV 98 0145784 (April 10, 2000, Doherty, J.), the plaintiff alleged that he was fired by his employer after "he informed the principals and owners of [his employer] of said schemes to conceal and sell defective and poor quality goods . . ." The court granted the employer's motion to strike the plaintiff's CUTPA claim holding that the CUTPA count "relates to the employment relationship of the plaintiff and [the defendant], and therefore, does not allege that the acts occurred in the conduct of trade or commerce as defined by General Statutes § 42-110a (4)." Id.
In Collins v. Gulf Oil Corp., 605 F. Sup. 1519 (1985), the plaintiff alleged that his employer illegally concealed payments resulting in "an unfair competitive advantage," violated consent decrees with Securities and Exchange Commission and subsequently terminated the plaintiff when "he became a threat to covering them up." Id., 1521. In dismissing the plaintiff's CUTPA claim, the court stated, "To sustain a CUTPA claim, plaintiff must show that he was a direct victim of defendant's unfair practices . . . Although the Act does not facially exclude employment contract disputes, this court has dismissed a CUTPA claim where plaintiff alleged loss of money or property as a result of a retaliatory discharge based on plaintiff's objection to the employer's unfair practices since this was but an indirect, remote relationship, not governed by CUTPA . . . [T]he relationship between plaintiff's loss and defendant's unfair practices is too remote to sustain plaintiff's claims." (Citation omitted; internal quotation marks omitted.) Id., 1523.
Like the plaintiffs in the cases above, Wright is attempting to assert a CUTPA claim for unfair and deceptive business practices perpetrated by his employer upon a third party with whom the employer was engaged in trade or commerce. The argument that "any person" may bring a claim if they have been injured by an unfair business practice has been rejected by the courts. Jackson v. R.G. Whipple, Inc., supra. Furthermore, the relationship between the plaintiff and defendant must be one of trade and commerce. Tanner v. Darly Custom Tech, Inc., supra; Jablonski v. Sheldon Precision, supra; Collins v. Gulf Oil Corp., supra, 605 F. Sup. 1523 . The defendants' ability to injure Wright was only possible through his employment relationship and not a relationship built through trade or commerce. The only interest of his that was implicated by the defendants' actions, the threat to terminate his employment, was Wright's interest in maintaining his current employment. An individual's interest in maintaining his employment lies squarely within the employee-employer relationship. Furthermore, the defendants' activities that occurred outside the employee-employer relationship did not otherwise implicate Wright's interests. Meehan is the owner of the cars that were alleged to have been damaged or incorrectly repaired, not Wright. Wright may not bring a CUTPA claim because he lacks a relationship in trade or commerce with the defendants — a required CUTPA element.
Wright's CUTPA claim attempts to piggyback on the trade relationship between Meehan and the defendants. This court has been unable to find any case law in which a plaintiff has been allowed to bring a CUTPA claim based on a trade or commerce relationship that existed between the defendant and a third party. To the contrary, as the cases cited above show, such claims have not been allowed. Therefore, Wright may not maintain a CUTPA claim against the defendants because he lacks the requisite trade or commerce relationship with them.
Conclusion
For foregoing reasons, the defendants' motion to strike counts nine and ten are granted only insomuch as they pertain to the defendant Chad Wright.
D. Michael Hurley, JTR