Opinion
No. HHD CV 07 5012682S
December 10, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
This case arises out of the failure of the defendants, SCI Connecticut Funeral Services, Inc. (SCI) and Gilbert D. Spencer, to return to the plaintiff, Eleanor M. Reich, a portion of her deceased husband's cremated remains until approximately four years after his cremation and funeral. The matter presently before the court is the defendants' motion for summary judgment, filed on April 7, 2010.
According to Spencer's deposition transcript, SCI owns Glastonbury Funeral Home, which is a funeral home that provided services to the plaintiff.
On July 9, 2010, the plaintiff filed a withdrawal of the action as to Spencer as president of Spencer Enterprises, Inc., but he remains a defendant in his individual capacity.
The lawsuit was commenced against SCI and Spencer by service of process on August 10, 2007 and August 18, 2007, respectively. On February 27, 2009, the plaintiff filed the operative twenty-one-count amended complaint. As to Spencer, the plaintiff alleges negligence (count one), recklessness (count four), intentional infliction of emotional distress (count seven), negligent misrepresentation (count ten), negligent infliction of emotional distress (count thirteen), breach of contract (count sixteen) and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA) (count nineteen). The same claims are alleged as to SCI, negligence (count three), recklessness (count six), intentional infliction of emotional distress (count nine), negligent misrepresentation (count twelve), negligent infliction of emotional distress (count fifteen), breach of contract (count eighteen) and violation of CUTPA (count twenty-one).
Counts two, five, eight, eleven, fourteen, seventeen and twenty are alleged against Spencer Enterprises, Inc., which is not a party to this suit.
It is actually denominated the "Revised Substitute Third Amended Complaint" and is docket entry #133.
Spencer moves for summary judgment as to the breach of contract claim (count sixteen) on the grounds that he was not party to the purchase agreement. He moves for summary judgment as to the remaining counts on the grounds that they are time-barred. SCI moves for summary judgment as to the counts of the complaint against it on the grounds that it "would otherwise be entitled to a directed verdict," which the court understands to be a claim that there is insufficient evidence in the record to sustain the plaintiff's allegations, and that all of the claims, except the breach of contract claims, are time-barred.
"A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict." (Internal quotation marks omitted.) Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 374, 889 A.2d 829 (2006).
The following facts are undisputed. On or about October 7, 2001, the plaintiff met with Spencer, who worked at the Glastonbury Funeral Home, they made arrangements for the funeral and cremation of the decedent, William Joseph Reich, Jr., and a funeral was held on or about October 10, 2001. On or about October 16, 2001, Spencer delivered an urn containing cremated remains, a flag and an invoice to the plaintiff's home, and the plaintiff paid the final amount owed, which was a sum of $5,462.70. On or about November 22, 2005, the funeral home sent a letter (notification letter) to the plaintiff, stating that it had overlooked and failed to deliver a second container of remains and that if the plaintiff failed to contact the funeral home to instruct it as to the disposition of the ashes or to retrieve them before the end of December 2005, the funeral home would relocate them to a mausoleum crypt in a cemetery, and future retrieval from the cemetery would be at the plaintiff's expense. On or about December 19, 2005, a representative of the department of public health retrieved the remaining ashes from the funeral home, which were in a cardboard box that was marked "temporary container" and "[one] of [two]" and delivered them to the plaintiff. The plaintiff also alleges, and the defendants dispute, that as a result of the defendants' acts, she suffered and continues to suffer emotional trauma, and has incurred and will continue to incur expenses for medical care and treatment.
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) Karwowsky v. Fardy, 118 Conn.App. 480, 485, 984 A.2d 480 (2009). "While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996).
"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." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 14-15, 971 A.2d 90 (2009).
I SPENCER A Counts One (Negligence), Four (Recklessness), Ten (Negligent Misrepresentation), Thirteen (Negligent Infliction of Emotional Distress) 1. Statute of Limitations § 52-584/Continuing Course of ConductSpencer argues that the plaintiff's claims against him of negligence (count one), recklessness (count four), negligent misrepresentation (count ten) and negligent infliction of emotional distress (count thirteen) are time barred by General Statutes § 52-584 because the date on which Spencer allegedly mishandled the decedent's remains by failing to give the plaintiff the second container was October 16, 2001, which was more than three years before the plaintiff initiated her lawsuit against him by way of service of process. In support of this argument Spencer maintains that there is no evidence that he had involvement with the remains or the plaintiff after October 2001, and he had no role regarding the notification letter. Spencer also contends that he had no contractual or statutory duty to the plaintiff and, even if he did have a statutory duty, he did not breach it because the decedent was promptly cremated in 2001.
The plaintiff responds that Spencer had a duty to cremate the decedent's body and transport all the remains to her within a reasonable time after death; and that he breached that duty by failing to exercise due diligence to locate, identify and return the remains within a reasonable time, by failing to notify the plaintiff of the second container of ashes within a reasonable time, and by failing to exercise the degree of care that a reasonable member of the funeral profession in Connecticut would exercise under similar circumstances. The plaintiff argues that her suit was timely filed because the limitation period as to her negligence claims pursuant to § 52-584 only began to run when the plaintiff "sustained some form of actionable harm" and a genuine issue of material fact exists as to the date on which the plaintiff suffered actionable harm. The plaintiff claims she suffered actionable harm on November 22, 2005, when she received the notification letter. The plaintiff further argues that Spencer handled the situation in a callous manner, which caused the plaintiff to suffer damages. Accordingly, she contends that the limitation period pursuant to § 52-584 did not commence until 2005. Alternatively, the plaintiff contends that the defendants engaged in a continuing course of conduct extending from 2001 until November 2005. The defendants respond that the continuing course of conduct doctrine does not apply because the plaintiff failed to plead the doctrine as required by General Statutes § 10-57 and no special relationship existed between the parties.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "[Section] 52-584 is the applicable statute of limitations barring negligence claims." Sinotte v. City of Waterbury, 121 Conn.App. 420, 429, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). Section 52-584 also applies to "claims of . . . reckless, wanton or wilful misconduct . . ." Hill v. Williams, 74 Conn.App. 654, 658, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003).
General Statutes § 52-584 provides, in pertinent part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
Our Supreme Court has had the opportunity to "discuss § 52-584 and took the opportunity to restate the correct legal standard by which to evaluate the timeliness of causes of action in negligence. The limitation period . . . begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term injury is synonymous with legal injury or actionable harm. Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm . . . Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm . . . Unlike the two-year limitation section of § 52-584, the repose portion of § 52-584 which provides that `no action may be brought more than three years from the date of the act or omission complained of' bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action . . . While statutes of limitation are sometimes called statutes of repose, the former bars [a] right of action unless it is filed within a specified period of time after [an] injury occurs, while statutes of repose [terminate] any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 793-94, 849 A.2d 839 (2004). For example, our Supreme Court has stated: "The discovery of the presence of a foreign object in the body of a person who recently has undergone a medical procedure presupposes discovery of the `essential elements of a cause of action in negligence' . . . Thus, when the plaintiff discovered the presence of the [foreign objects] . . . he became aware of actionable harm . . . and the . . . limitation period began to run." (Citation omitted.) Kelly v. University of Connecticut Health Center, 290 Conn. 245, 255, 963 A.2d 1 (2009). The court disagreed with the plaintiff's position that actionable harm occurred only after he obtained an expert opinion that malpractice occurred. Id.
Spencer argues that there was no continuing course of conduct between 2001 and 2005 because there is no allegation or evidence that a special relationship existed, the plaintiff testified that the notification letter was not a wrongful act or the basis for this lawsuit, and the doctrine should be used when it is difficult to pinpoint the exact date of the negligent acts and in this case, there was only one alleged negligent act in October 2001. Spencer contends that the plaintiff failed to specially plead a continuing course of conduct in her reply to his answer.
The plaintiff responds that the continuing course of conduct doctrine is applicable because her act of entrusting the remains to Spencer created a special relationship, Spencer owed a continuing duty to supply the plaintiff with the remainder of the ashes, and the plaintiff did not know she was not in possession of all of the ashes until November 2005. She argues that there is a question of material fact as to whether Spencer committed an initial wrong by failing to give all of the decedent's remains to the plaintiff promptly, owed a continuing duty to the plaintiff and continually breached that duty by failing to give her the remains for four years. Alternatively, if a special relationship did not exist, sending the callous letter that caused the plaintiff to suffer emotional distress was a wrongful act stemming from the initial wrong of losing a portion of the remains.
"[T]he [§ 52-584] statute of limitations, in the proper circumstances, may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." Zielinski v. Kotsoris, 279 Conn. 312, 321-22, 901 A.2d 1207 (2006). "When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . In order to support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . The continuing course of conduct doctrine is conspicuously fact-bound . . .
"The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . The doctrine is generally applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . ."
"In sum, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct." (Internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151, 160-61, 795 A.2d 572 (2002). "Our Supreme Court has recognized that the repose section of General Statutes § 52-584 may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Internal quotation marks omitted.) Id., 159.
Practice Book § 10-57 provides, in relevant part: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." "[T]he complaint is required only to fairly put the defendant on notice of the claims against him . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citation omitted; internal quotation marks omitted.) Montanaro v. Gorelick, 73 Conn.App. 319, 323-24, 807 A.2d 1083 (2007).
In the present case, the plaintiff implicitly pleaded the continuing course of conduct doctrine in her complaint. The allegations in paragraph eighteen of the complaint, viewed in the light most favorable to the plaintiff, are sufficient to place the defendants on notice that the plaintiff's claims are based on both the alleged initial wrong of failing to provide the plaintiff with the decedent's cremated remains, and on the fact that this breach of duty remained in existence until 2005. These allegations cannot surprise or prejudice the defendants.
Paragraph eighteen of the complaint states: "The [d]efendant Gilbert Spencer breached his duty a. [in that] he failed to exercise due diligence to locate and identify the complete remains of [the decedent]; b. [in that] he failed to return all the cremated remains of [the decedent] within a reasonable time after death; and c. [in that] he failed to exercise due diligence to contact the [p]laintiff about the second container of remains within a reasonable time after death, and when contact was made three years later, his handling of the situation was both callous and cavalier. d. [in that] he failed to exercise the degree of care that a reasonably prudent member of the funeral profession in this [s]tate would exercise under like circumstances."
Spencer's deposition transcript and the plaintiff's deposition transcript show that the plaintiff first learned that she was not in possession of all of the decedent's remains on or about November 22, 2005, when she received the notification letter from the funeral home. There is no evidence that the plaintiff had "knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another"; Barrett v. Montesano, supra, 269 Conn. 793; prior to 2005, which is when actionable harm occurred. The action against Spencer was commenced on August 18, 2007, within two years of the plaintiff's receipt of the notification letter.
All references in this memorandum to "Spencer's deposition" refer to his December 18, 2008 deposition.
All references in this memorandum to "the plaintiff's deposition" refer to her October 13, 2008 deposition.
"The date the action was commenced is the date of service of process, which is when the writ of summons and complaint were served on the defendants." Byrne v. Burke, 112 Conn.App. 262, 272 n. 11, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).
Spencer, as the moving party, bears the burden of demonstrating that there is no question of material fact that his wrongful conduct did not continue through November 2005, he did not owe a continuing duty to the plaintiff, and he is entitled to judgment as a matter of law. The deposition testimony that Spencer was on vacation during part of November 2005 does not show that he did not have continuous control of the remains from 2001 through 2005. Therefore, he has not met his burden to demonstrate that there is no issue of material fact in dispute as to the continuing course of conduct doctrine or his involvement with the events leading to the letter of November 22, 2005. Therefore, Spencer has failed to prove that the plaintiff's claims are barred by § 52-584 and that he is entitled to judgment as a matter of law.
2. The Record Does Not Contain Sufficient Evidence to Entitle Spencer to a Directed Verdict a. Count One (Negligence)
Spencer argues that he is entitled to summary judgment on the plaintiff's negligence and recklessness claims because he was not personally liable under the contract and it is undisputed that the decedent's body was promptly cremated. The plaintiff alleges that Spencer failed to use due diligence to locate, identify and return all of the remains within a reasonable time; he failed to use due diligence to contact the plaintiff about the second container; he failed to use the degree of care that a reasonably prudent member of the funeral profession would exercise; and, as a result, the plaintiff was harmed.
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
"[T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008). "The existence of the duty is a question of law whereas whether there was a breach of that duty is a question of fact." Tryon v. North Branford, 58 Conn.App. 702, 715, 755 A.2d 317 (2000).
In the present case, Spencer's deposition shows that he is a funeral home professional, and it is undisputed that Spencer had custody of the decedent's cremated remains. It is also undisputed that he failed to give all of the ashes to the plaintiff in 2001. Whether Spencer's duty to do so remained in existence until 2005 and whether he breached his duty of care by failing to return all of the remains within a reasonable time is an issue of fact.
Spencer has not met his burden to show that there is no genuine issue of material fact as to whether he exercised due diligence and the proper degree of care of a member of the funeral profession and that he is entitled to judgment as a matter of law. Therefore, the motion as to the allegation of negligence against Spencer (count one) must be denied.
b. Count Four (Recklessness)
Spencer argues that the recklessness count fails because there is no evidence that he knew or should have known that his alleged conduct would cause the plaintiff to suffer emotional distress and there is no evidence that he acted intentionally or that he knew there was a second container until 2005. The plaintiff argues that failing to return a portion of the ashes for four years is an extreme departure from ordinary care and is more than a mere mistake. She contends that there is at least a question of material fact as to whether these facts constitute recklessness.
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . Whether the defendant acted recklessly is a question of fact." (Citation omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 137-38, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002). "[A] party may not merely reallege allegations contained in a claim of negligence, but rather must allege additional facts that demonstrate that the defendant's conduct was reckless." Burney v. Downer Funeral Home, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175648 (August 13, 2001, Lewis J.T.R.).
An example of conduct by a funeral home that was held by the Superior Court to fall below the threshold of recklessness is a case in which the funeral home arranged a funeral and approximately one hundred mourners proceeded from the service to a cemetery to find that the gates were closed, the grave had not been dug and the burial had to be postponed. At the rescheduled burial, which was attended by four mourners, "[b]efore placing the coffin in the grave, the hearse driver opened the coffin in front of the plaintiff apparently to ascertain which end contained the upper portion of her mother's body." Burney v. Downer Funeral Home, supra, Superior Court, Docket No. CV 99 0175648.
In contrast, in a different procedural posture, "[i]n Perkins v. Colonial Cemeteries, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 144646 (Karazin, J.) (May 16, 1996) [appeal dismissed, 53 Conn.App. 646, 734 A.2d 1010 (1999)], the defendant moved and buried the decedent's body in three different grave sites. Ruling upon a motion to strike the [claims of] intentional and reckless inflictions of emotional distress, the court allowed a claim for both emotional distress claims to survive the motion." (Emphasis added.) Himberg v. Shure Funeral Home, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0266920 (February 20, 2001, Robinson-Thomas, J.) ( 29 Conn. L. Rptr. 201, 202).
In the present case, the plaintiff has submitted evidence that Spencer negligently failed to promptly return all of her husband's cremated remains to her. Additional evidence in the record shows that Spencer may have acted recklessly. For example, the second container was marked "box one of two," it was found in a closet in the funeral home where cremated remains were stored, and Spencer accessed the closet to obtain cremated remains for other clients from 2001 through 2005. Whether his conduct was reckless is a question of fact. Franc v. Bethel Holding Co., supra, 73 Conn.App. 138. Spencer has failed to provide evidence demonstrating that there is no issue of material fact and that, as a matter of law, he was not reckless. Therefore, the motion for summary judgment must be denied as to count four.
c. Count Ten (Negligent Misrepresentation)
Spencer contends that the negligent misrepresentation claims fail because the plaintiff's deposition testimony shows that her claims are not based on any alleged misrepresentations by Spencer and there is no evidence that he knew or should have known that not all of the remains had been returned to the plaintiff. The plaintiff argues that she relied on the false representation that she would and did receive all of the remains after the funeral and that she would be provided with a burial certificate. She contends that there is an issue of material fact as to whether the defendants had the means of knowing or should have known that some of the remains were left in the funeral home.
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact . . . [Our Supreme Court] has long recognized liability for negligent misrepresentation . . . The governing principles are set forth in . . . § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . . [T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information . . . There must be a justifiable reliance on the misrepresentation for a plaintiff to recover damages." (Citation omitted; internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002).
"A claim of negligent misrepresentation may be based on a defendant's failure to speak when he has a duty to do so . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act . . . [A] claim of negligent misrepresentation may be based on a failure to disclose when one ought to know the truth and has a duty to speak." (Citations omitted; internal quotation marks omitted.) Camerone v. Phillips, Superior Court, judicial district of New Haven, Docket No. 030483400 (January 17, 2007, DeMayo, J.T.R.). "[C]ourts liberally construe the pleadings in a way so as to sustain such a claim . . . In our view, the plaintiff's allegation that `the defendants negligently misrepresented the facts to the plaintiff necessarily implied that the defendants did not exercise reasonable care or competence in communicating with the plaintiff." (Citations omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 219-20, 520 A.2d 217 (1987).
Our Supreme Court has stated that a jury could find a defendant employer liable for negligent misrepresentation due to its failure to supply adequate specific information in its performance evaluation of an employee. Craine v. Trinity College, 259 Conn. 625, 662, 791 A.2d 518 (2002). In Camerone v. Phillips, supra, Superior Court, Docket No. CV 03 0483400, the seller of a house failed to fulfill his duty to disclose to the buyer the existence of water seepage that the seller had hidden. In contrast, the seller of a working residential horse farm was not liable for negligent misrepresentation because she omitted to inform the purchasers that a permit would be needed to use the land as a commercial horse farm. The Appellate Court stated: "The court had ample evidence from which to conclude that the plaintiff reasonably represented the premises as a working horse farm. We hold that the court's conclusion that it was not negligent for the plaintiff implicitly to represent that no additional permits were necessary is not clearly erroneous." Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 204, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).
Here, the deposition transcripts do not show that Spencer made statements to the plaintiff about the size of the urn, the amount of the cremated remains or that the urn contained all of the decedent's ashes. The transcripts show, however, that the plaintiff was assisted by Spencer in choosing an urn; she expected him to know what size urn would be needed; Spencer delivered the filled urn to her home; the urn did not contain all of the remains; Spencer routinely transferred ashes from crematory boxes into urns; the crematory box that was delivered to the plaintiff in 2005 was marked "box one of two;" and, the remainder of the ashes remained in the custody of the funeral home for about four years. This is evidence from which a finder of fact could infer that Spencer's delivery of the urn in 2001 knew or should have known that his representation that the urn contained all of the ashes was false. Because Spencer has failed to show that there is no question of material in dispute fact as to the plaintiff's claim of negligent misrepresentation, he is not entitled to judgment as a matter of law. Therefore, the motion for summary judgment as to count ten must be denied.
d. Count Thirteen (Negligent Infliction of Emotional Distress)
The defendants argue that the claims of negligent infliction of emotional distress fail because there is no evidence that Spencer knew or should have known that there was a second container of remains until 2005. The plaintiff responds that the defendants either knew or should have known that losing a portion of the remains and returning them four years later, possibly mixed with the remains of another person, and informing her by way of an insensitive letter involved an unreasonable risk of emotional distress.
The plaintiff bases this statement on her allegation that both of the containers she received are full, while Spencer, in his deposition, stated that cremated remains would usually only fill one box and, in the rare case that a second box was needed, it would generally be only partly filled.
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009). "This . . . test essentially requires that the . . . distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress was] reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly w6uld be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). "Some judges of the Superior Court . . . have recognized that morticians and funeral homes owe a duty of care to the immediate family members of a decedent in connection with claims of infliction of emotional distress." Ginsberg v. Manchester Memorial Hospital, Superior Court, district of Hartford, Docket No. CV 09 5030482 (May 17, 2010, Peck, J.) ( 49 Conn. L. Rptr. 341, 344).
The plaintiff's deposition transcript contains evidence that Spencer's failure to promptly return all of the ashes to the plaintiff caused her to suffer emotional distress and it resulted in bodily harm. Spencer's deposition reflects that he had a continuing duty to return the remains because the box of ashes that was delivered to the plaintiff in 2005 was marked "box one of two;" it was found in a closet in the funeral home where cremated remains were stored; and, Spencer accessed the closet to obtain cremated remains for other clients from 2001 through 2005. As a funeral home employee, Spencer owes a duty of care to the widow of the decedent who engaged the funeral home to properly handle her husband's remains. Since there are unresolved issues of material fact relating to Spencer's liability to the plaintiff as to her claim of negligent infliction of emotional distress, he is not entitled to summary judgment as to count thirteen.
B Count Sixteen (Breach of contract)
In support of the motion for summary judgment as to count sixteen, Spencer argues that the breach of contract claim fails because the plaintiff admitted in her deposition that she did not have a contract with Spencer. In response, the plaintiff counters that Spencer is personally liable under the contract as an agent of an undisclosed principal or, alternatively, there is an issue of fact as to whether he is personally liable as an agent of an undisclosed principal.
"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.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, CT Page 1115 294 Conn. 913, 983 A.2d 274 (2009).
"[A] principal may be bound to contracts executed by an agent if it is within the agent's authority to contract on behalf of that principal . . . and the authority to enter into a specified contract includes the authority to make it in the usual form and with usual terms . . . The nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C., 269 Conn. 613, 636, 850 A.2d 145 (2004). "To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or to make inquiries to discover these facts . . . Therefore, where the agent contracts as ostensible principal, regardless of his intention and notwithstanding his lack of personal interest in the consideration, he will be personally liable on the contract as if he were the principal . . . The existence of an agency relationship is a question of fact for the trier." (Citations omitted; internal quotation marks omitted.) New England Whalers Hockey Club v. Nair, 1 Conn.App. 680, 683, 474 A.2d 810 (1984).
In the present case, the purchase agreement and the deposition transcripts of Spencer and the plaintiff support Spencer's claim that he acted at all times as the disclosed agent of the funeral home. The following statements in Spencer's deposition support his agency status: he sold the funeral home business to SCI prior to 2001; he was working for SCI as the manager of Glastonbury Funeral Home at the time of then decedent's funeral; his duties included arranging and running funerals and taking care of the paperwork involved. The purchase agreement shows that Spencer disclosed the fact that he was an agent because it states: "The words we, us and our refer to the Funeral Provider or Seller whose name and address appear above" and, at the top of the page, it sets out the name and address of the Glastonbury Funeral Home. Spencer's signature, which he attests in his deposition, is on the purchase agreement and is preceded by the words "accepted for seller" and the plaintiff's signature, which she attests in her deposition, is on the purchase agreement, followed by the word "buyer." The plaintiff's deposition shows that when making final arrangements for the decedent, she and her daughters "decided on Glastonbury Funeral Home," which she thought was a good company. Because none of the evidence shows that Spencer's agency status was undisclosed, there is no genuine issue of material fact that Spencer has personal liability under the contract as an undisclosed principal. Because Spencer has met his burden of showing there is no question of material fact that he personally is not a party to the contract, he is entitled to judgment as a matter of law. Therefore, the motion for summary judgment as to count sixteen must be granted.
C Count Seven (Intentional Infliction of Emotional Distress)
Spencer argues that there is no evidence that he knew or should have known that his alleged conduct would cause the plaintiff emotional distress. Specifically, he contends that the plaintiff testified in her deposition that she has no evidence that Spencer acted intentionally and there is no evidence that Spencer knew there was a second container prior to 2005. The plaintiff argues that the undisputed facts are extreme and outrageous and the defendants knew or should have known that the plaintiff would suffer emotional distress from receiving the news, four years after the funeral, that a portion of her husband's remains had been lost.
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). "[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).
"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." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "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.) Id., 210-11.
"[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, counterclaim or cross 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 it 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.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
When considering whether the conduct of the defendants was outrageous under Connecticut's legal standards, it is helpful to consider prior rulings. In one case, a defendant funeral home, mistakenly believing that the plaintiff had consented, arranged for the cremated remains of the plaintiff's uncle to be buried in a cemetery plot that was owned by the plaintiff and contained the remains of his grandmother. Angiolillo v. Buckmiller, 102 Conn.App. 697, 701-02, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). Once the funeral home realized its error, it arranged to have the remains disinterred and reinterred in another part of the cemetery. Id., 702. The Appellate Court concluded that, as a matter of law, the defendants' actions "were not sufficiently extreme and outrageous as to give rise to a cause of action for intentional infliction of emotional distress." Id., 706-07. This court has found that a defendant hospital's behavior was not outrageous when, having custody of a corpse, it allowed the corpse to sustain a gash on the forehead, bruised eyes and a broken nose. Ginsberg v. Manchester Memorial Hospital, supra, 49 Conn. L. Rptr. 344. In at least one case, the Superior Court has held that the plaintiff's act of sending a letter to the defendant was sufficient to satisfy the "extreme and outrageous" standard for the defendant's counterclaim of intentional infliction of emotional distress. That letter was of an "almost explosively violent nature," was "extremely physically threatening" and contained the following sentence: "When we get done with you, you are going to wish cancer took you." Leddy v. Raccio, Superior Court, judicial district of New Haven, Docket No. CV 05 4008146 (May 19, 2008, Corradino, J.), aff'd, 118 Conn.App. 604, 984 A.2d 1140 (2009).
Here, the deposition transcripts and the notification letter show that Spencer failed to promptly return a portion of the decedent's remains to the plaintiff. Even when considered in the light most favorable to the plaintiff, this evidence does not meet the standard of outrageousness that is required to sustain a claim of intentional infliction of emotional distress. Therefore, the motion for summary judgment as to count seven is granted.
D Count 19 (CUTPA) 1. Statute of Limitations § 42-110g(f)
Spencer argues that the claim of CUTPA violations (count nineteen) is barred by General Statutes 42-110g(f) because the three-year period during which a plaintiff may file suit begins on the date of the defendant's alleged conduct, and the date on which a plaintiff first incurs or discovers injury is irrelevant. He contends that because he allegedly mishandled the remains in October 2001, he had no involvement with the remains or the plaintiff's family after 2001, and he had no role in sending the notification letter, the statute of limitations expired in October 2004, before the plaintiff filed her complaint.
The plaintiff argues that, although § 42-110g(f) is narrowly interpreted by our courts to accrue upon the occurrence of the CUTPA violation, this lawsuit was filed partly due to the notification letter and partly because of Spencer's handling of situation. She contends that there is a genuine issue of material fact as to when the CUTPA violation took place.
General Statutes § 42-110g(f) provides: "An action under this section [Unfair Trade Practices] may not be brought more than three years after the occurrence of a violation of this chapter." "[T]he legislature intended that . . . CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g(f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for victims of CUTPA violations in this state . . . Therefore, if the deceptive acts that the jury reasonably could have found form the basis of the CUTPA claim occurred more than three years prior to the commencement of the action, that claim is time barred." (Citation omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 45-46, 717 A.2d 77 (1998).
Spencer breached his duty to return all of the ashes to the plaintiff in 2001 and the breach remained in existence until 2005. For reasons previously stated in this memorandum, Spencer has not met his burden of showing that there is no question of material fact that his wrongful conduct did not take place over time, continuing through November 2005. Because Spencer has failed to show that there are no issues of material fact as to whether the CUTPA claim is time barred, he cannot prevail on his motion for summary judgment on the ground of the statute of limitations.
2. Professional Services Exception to CUTPA
Spencer argues that the CUTPA claims fail because they rely on prior counts which are unsustainable due to a lack of supporting evidence and the plaintiff cannot show any aggravating circumstances. The plaintiff contends that the elements of CUTPA have been met because Spencer offended public policy, violated common law and statutory laws, his conduct was immoral and unscrupulous, and the plaintiff was a consumer who contracted with Spencer for funeral services. She argues that issues of fact exist as to whether there are aggravating circumstances surrounding the breach of contract that rise to the level of a CUTPA violation and whether Spencer's other conduct is a violation of CUTPA.
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." Section 42-110g(a) provides, in relevant part, that "[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 method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." "[A] violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Internal quotation marks omitted.) De La Concha of Hartford v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).
"It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [f]ederal [t]rade [c]ommission 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." (Internal quotation marks omitted.) Naples v. Keystone Building Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).
"[P]rofessional malpractice does not give rise to a cause of action under CUTPA." Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribcoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). CUTPA claims against a medical professional are valid "when the actions at issue are chiefly concerned with `entrepreneurial' aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the `competence of and strategy' employed by the . . . defendant." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 809, 826 A.2d 1066 (2003).
"In Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997), the Connecticut Supreme Court concluded that professional negligence claims do not fall under the protection of CUTPA. In Haynes, the plaintiff alleged that `Yale-New Haven [Hospital] held itself out to be a major trauma center even though it allegedly did not meet those standards.' CT Page 1121 Id . . . 32 . . . Concluding that the allegations did not support a CUTPA claim, the Supreme Court concluded `that the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim.' Id. . . . 38 . . ."
"The question of how far the professional negligence exclusion extends has created a split in the Superior Courts. A number of courts have held that the CUTPA exclusion extends beyond the medical and legal fields to exempt other types of professional malpractice . . . Conversely, [o]ther Superior Courts have reasoned that a CUTPA count based on negligence in professions other than law or medicine should survive a motion to strike because the appellate courts have not expressly extended the professional negligence exception." Thirteen Sixty Eight Wing Development Corp. v. Chan, Superior Court, judicial district of New London, Docket No. CV 07 5007327 (July 13, 2010, Cosgrove, J.). See Plummer v. Goodman Ins., Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5013886, (March 12, 2010, Trombley, J.) (malpractice exception not extended to allegations founded upon misrepresentation of insurance coverage); Silk v. Cowles Connell, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 03 103524 (May 25, 2004, Quinn, J.) ( 37 Conn. L. Rptr. 152, 153) (malpractice exception extended to insurance agents and brokers); Pollock v. Panjabi, Superior Court, judicial district of New Haven, Docket No. CV 97 0402199 (May 17, 2000, Levin, J.) [ 27 Conn. L. Rptr. 316] (malpractice exception not extended to professor and kinesiologist); Advest Group v. Arthur Andersen LLP, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 97 0571417 (July 28, 1998, Aurigemma, J.) ( 22 Conn. L. Rptr. 520, 524) (malpractice exception extended to accountants); Simms v. Candela, Superior Court, judicial district of New Haven, Docket No. CV 98 04078445 (March 4, 1998, Blue, J.) [ 21 Conn. L. Rptr. 479] (malpractice exception extended to entrepreneurial aspect of landlord's business).
Here, the plaintiff's CUTPA claim against Spencer is, in essence, a claim that he failed to properly exercise the expertise of a funeral home professional in handling the decedent's cremated remains. Because the handling of cremated remains is not an entrepreneurial aspect of the funeral home business; "such as the solicitation of business and billing practices," Janusauskas v. Fichman, supra, 264 Conn. 809; and this is analogous to other professional services for which the malpractice exception to CUTPA has been extended, the court applies the exception to Spencer. Therefore, the motion for summary judgment is granted as to count nineteen.
This count appears to have been drafted at a time when the plaintiff believed that Spencer owned Spencer Enterprises, Inc. d/b/a Glastonbury Funeral Home and/or was president of it. Spencer Enterprises is not a party to this case and there are no claims against it. Claims against Gilbert Spencer in his capacity as President of that entity have been withdrawn. See Revised Substitute Third Amended Complaint, para. 3, incorporated by reference into count nineteen.
The defendants argue that the plaintiff's claims against SCI for negligence (count three), recklessness (count six), negligent misrepresentation (count twelve) and negligent infliction of emotional distress (count fifteen) are time barred by General Statutes § 52-584 because the claims are based on alleged mishandling of the decedent's remains by Spencer and the funeral home in October of 2001.
The plaintiff argues that her negligence claims against SCI are based on its conduct as a corporate entity. Her complaint alleges that SCI managed, directed, controlled or influenced the day to day management, procedures and operations of the funeral home and is or may be vicarious liable for acts and/or omissions of the funeral home. She contends that actionable harm occurred in 2005 and that is when the statute of limitations began to run. The defendants respond that the continuing course of conduct doctrine does not apply because the plaintiff failed to plead the doctrine as required by General Statutes § 10-57 and no special relationship existed between the parties.
The plaintiff first learned that she was not in possession of all of the decedent's remains on or about November 22, 2005, when she received the notification letter. Because the action was commenced against SCI within two years, on August 10, 2007, § 52-584 does not bar these claims for acts that took place in 2005. To the extent that these claims relate to acts that took place between 2001 and 2005, the continuous course of conduct doctrine tolls § 52-584, for the reasons previously discussed in part I.A.1. For these reasons, the motion for summary judgment on behalf of SCI is denied as to counts three, six, twelve and fifteen.
2. The Record Does Not Contain Sufficient Evidence to Entitle SCI to a Directed Verdict a. Count Three (Negligence)
SCI argues that it is entitled to summary judgment on the negligence and recklessness claims because the plaintiff's claims rest on alleged breaches of duty by Spencer. SCI contends that because Spencer did not owe a statutory or contractual duty to the plaintiff, and it is undisputed that the decedent's body was promptly cremated, SCI did not breach the contract or any duty under General Statutes § 7-64.
The plaintiff argues that SCI breached its duty to promptly and properly deliver the remains and handled the situation in a callous manner that caused her to suffer damages. She argues that SCI is vicariously liable for the acts of its employees who breached their duty under the agreement and under § 7-64 by failing to exercise due diligence to locate, identify and return the remains within a reasonable time, failing to notify the plaintiff of the second container of ashes within a reasonable time, failing to exercise the degree of care that a reasonable member of the funeral profession would exercise under similar circumstances, and sending an insensitive notification letter to her.
Section 7-64 provides: "The body of each person who dies in this state shall be buried, removed or cremated within a reasonable time after death" and sets out fines and a term of imprisonment as penalties for failure to comply. There is no dispute that the body of the decedent was promptly cremated.
"[A] party may be liable in negligence for the breach of a duty that arises out of a contractual relationship . . . Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract." (Citation omitted; internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870, 794 A.2d 997 (2002). "Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time . . . What is a reasonable length of time is ordinarily a question of fact for the trier." (Citations omitted; internal quotation marks omitted.) Putnam Park Associates v. Fahnestock and Co., Inc., 73 Conn.App. 1, 11, 807 A.2d 991 (2002). "[W]e accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008). Under the terms of their agreement, the funeral home billed the plaintiff for transporting the decedent's remains to the crematory, crematory services and an urn. Although not explicit in the purchase agreement, based on the purpose of the agreement, it is reasonable to infer an implicit understanding that the funeral home would promptly and properly return the cremated remains to the plaintiff. Because the contract is silent on the time for the funeral home to perform this duty, it should have been performed within a reasonable time. Putnam Park Associates v. Fahnestock and Co., Inc., supra, 73 Conn.App. 11. What time is reasonable under a contract is ordinarily a fact question. Id.
As a ground for summary judgment as to this count, SCI claims that because Spencer was not liable under the contract neither is SCI. However, the plaintiff's deposition testimony, Spencer's deposition testimony and the agreement contain evidence supporting the plaintiff's claim of vicarious liability as to the actions of Spencer and other funeral home employees. Specifically, the evidence reflects that funeral home employees had a contractual duty to deliver the ashes to the plaintiff; they were responsible for writing the notification letter; and, the letter combined with the failure to deliver all the ashes within a reasonable time caused the plaintiff to suffer harm.
Viewing the record in the light most favorable to the plaintiff, SCI has failed to show that there is no genuine issue of material fact as to whether it is vicariously liable for the acts of the funeral home employees and that it is entitled to judgment as a matter of law. Therefore, the motion for summary judgment as to count three must be denied.
b. Count Six (Recklessness)
SCI argues that the recklessness count fails because there is no evidence that Spencer knew or should have known that his alleged conduct would cause the plaintiff to suffer emotional distress and there is no evidence that he acted intentionally or that he knew there was a second container until 2005. The plaintiff argues that the failure to return a portion of the ashes for four years is an extreme departure from ordinary care, is much more than a mere mistake and that reasonable precautions to avoid emotional injury to the plaintiff were not taken in the drafting of the November 22, 2005. Whether these acts or omissions, as earlier discussed in part I.A.2.b. of this memorandum, constitute recklessness gives rise to question of fact which precludes summary judgment. Because SCI may be held to be vicariously liable for the recklessness of its agents, servants or employees, the motion for summary judgment as to count six must be denied.
c. Count Twelve (Negligent Misrepresentation)
SCI contends that the negligent misrepresentation claims fail because the plaintiff's deposition testimony shows that her claims are not based on any alleged misrepresentations by Spencer, Spencer did not write the notification letter, and there is no evidence that he knew or should have known that not all of the remains had been returned to the plaintiff. The plaintiff argues that she relied on the misrepresentation that she would and did receive all of the remains after the funeral and that she would be provided with a burial certificate. She contends that there is an issue of material fact as to whether the defendants had the means of knowing or should have known some of the remains were left in the funeral home.
As discussed in part I.A.2.c., the record contains evidence from which a finder of fact could infer that Spencer's delivery of the urn in 2001 constituted a false representation that the urn contained all of the cremated remains. Spencer's deposition shows that he was a funeral home employee in 2001. Because SCI may be held vicariously liable for the acts of the funeral home employees, the motion for summary judgment as to count twelve must also be denied.
d. Count Fifteen (Negligent Infliction of Emotional Distress)
SCI argues that the claims of negligent infliction of emotional distress fail because the claim is based solely on Spencer's conduct and there is no evidence that Spencer knew or should have known that there was a second container of remains until 2005. The plaintiff responds that the defendants knew or should have known that losing a portion of the remains and returning them four years later, possibly mixed with the remains of another person, and informing her by way of an insensitive letter involved an unreasonable risk of emotional distress.
As discussed in part I.A.2.d., there is evidence, which SCI has not challenged with countervailing evidence, that Spencer's conduct caused the plaintiff to suffer emotional distress. Further, there is no question that the November 22, 2005 letter also is alleged as a basis for the claim of negligent infliction of emotional distress. The plaintiff's deposition testimony reflects evidence that the letter, sent by a funeral home employee, in and of itself, caused her considerable emotional distress. These facts, viewed in the light most favorable to the plaintiff, show that SCI may be vicarious liable for the acts or omissions of funeral home employees which gave rise to the plaintiff's claimed emotional distress. Because SCI has failed to demonstrate that there is no issue of material fact as to this count and that it is entitled to judgment as a matter of law, the motion for summary judgment is denied as to count fifteen.
B Count Eighteen (Breach of Contract)
SCI argues that the breach of contract claim fails because it is based on an alleged contract between the plaintiff and Spencer, individually, and there is no issue of fact that there was no such contract. The plaintiff contends that the defendants had a duty under the contract to promptly and properly return the remains to her; and, that the defendants rendered the funeral and cremation services improperly by delivering only one container of ashes to the plaintiff in 2001 and delaying delivery of the second container until 2005.
"Ordinarily, one has a contractual duty, and thus is subject to contractual damages, only when one is a party to the contract or is very closely bound to the contract. Duties in tort, on the other hand, extend, as a general proposition, to all those reasonably and foreseeably affected by the conduct. It makes sense to allow for a somewhat more remote form of vicarious liability in tort, but not in contract." Berte v. Haddam Hills Academny, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 02 0097138 (December 16, 2005, Beach, J.) ( 40 Conn. L. Rptr. 565, 570).
As discussed in part I.B., the evidence in the record shows that the parties to the contract were the plaintiff and Glastonbury Funeral Home. There is no allegation or evidence that Spencer or any other employee of the funeral home signed the contract as an employee or agent of SCI. Because SCI has met its burden of showing there is no question of material fact that it was not a party to the contract, it is entitled to judgment as a matter of law. Therefore, the motion for summary judgment is granted as to count eighteen.
C Count Nine (Intentional Infliction of Emotional Distress)
SCI argues that this count is based solely on Spencer's alleged conduct and there is no evidence that Spencer knew or should have known that his alleged conduct would cause the plaintiff emotional distress. Specifically, it contends that the plaintiff testified in her deposition that she has no evidence that Spencer acted intentionally and there is no evidence that Spencer knew there was a second container prior to 2005. The plaintiff argues that the undisputed facts are extreme and outrageous and the defendants knew or should have known that the plaintiff would suffer emotional distress from receiving the news, four years after the funeral, that a portion of her husband's remains had been lost.
As discussed in part I.C., while the evidence in the record, reflects that the actions of the defendants were arguably callous and careless, even when considered in the light most favorable to the plaintiff, it does not meet the requisite standard of outrageousness required to sustain a claim of intentional infliction of emotional distress. Therefore, SCI is entitled to summary judgment as to count nine.
D Count Twenty-One (CUTPA) 1. Statute of Limitations § 42-110(f)
SCI argues that General Statutes § 42-110g(f) bars the plaintiff's CUTPA claim against it because it is based on the alleged failure of Spencer and the funeral home to return all of the ashes in 2001, and not on the notification letter. SCI contends that, although the plaintiff stated in her deposition that the notification letter was the whole basis of the lawsuit, she later conceded that neither of the statements in the letter that she objects to are the basis of this suit.
The plaintiff argues that the CUTPA violations are based on the defendant's handling of the situation, mainly based on the November 22, 2005 letter. She contends that the continuing course of conduct doctrine applies because her act of entrusting her husband's remains to the defendants created a special relationship between the parties and that the defendants owed a continuing duty to provide her with all of the ashes. She further claims that she did not know she was not in possession of all of the ashes until November 22, 2005. As a consequence, she maintains that there is a question of material fact as to whether the defendants committed an initial wrong by failing to give all of the decedent's remains to the plaintiff promptly and whether the defendants owed her a continuing duty which it breached by failing to give her the remains for four years. Alternatively, she contends that if a special relationship did not exist, sending the callous letter was itself a wrongful act which stemmed from the defendants' initial wrong of losing or misplacing a portion of the remains. As discussed in part I.D.1., the plaintiff commenced this action against SCI within two years of her receipt of the letter. Therefore, her CUTPA claim against SCI is not time-barred. Summary judgment is therefore denied as to count twenty-one on the ground of the statute of limitations.
2. The Record Does Not Contain Sufficient Evidence to Entitle SCI to a Directed Verdict
SCI argues that the plaintiff's CUTPA claim is based on the recklessness, intentional infliction of emotional distress and breach of contract claims. It contends that, because there is no evidence to support the recklessness and intentional infliction of emotional distress claims, and because there was no contract between the plaintiff and Spencer, SCI is entitled to summary judgment on the CUTPA claim.
The plaintiff contends that the elements of CUTPA have been met because the defendants offended public policy, violated common law and statutory laws, and engaged in conduct that was immoral and unscrupulous. She also contends that she was a consumer who contracted with the defendants for funeral services. She argues that issues of fact exist as to whether there are aggravating circumstances surrounding the breach of contract that rise to the level of a CUTPA violation and whether the defendants' other conduct is a violation of CUTPA.
"In the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation." Id., 229. Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims; Tyson Roller v. Accuride Corp., Superior Court, judicial district of Hartford, Docket No. CV 06 5009721 (May 7, 2008, Langenbach, J.); and multiple breaches of contract, Greene v. Orsini, 50 Conn.Sup. 312, 316, 926 A.2d 708 (2007). "[S]ince CUTPA does not require proof of intent to deceive, to mislead or to defraud, [even an] innocent misrepresentation can amount to a CUTPA violation." Fourteen Bradbury Place v. LeCamp, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 076000533 (January 16, 2009, Malone, J.). The Connecticut Supreme Court upheld an award of punitive damages under CUTPA in a case where "[t]he defendants' actions clearly [rose] above simple negligence and [supported] a finding of reckless or intentional conduct by the defendants to the plaintiffs' detriment." Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 55, 634 A.2d 870 (1993).
As discussed in part II.A.2.a., because SCI may be held to be vicariously liable for the acts of its agents, servants and employees and has failed to demonstrate that there are no issues of material fact as to whether the acts or omissions of the funeral home employees constitute CUTPA violations. The motion for summary judgment must be denied as to count twenty-one.
CONCLUSION
Regarding Spencer, the motion for summary judgment is granted as to count seven (intentional infliction of emotional distress), count sixteen (breach of contract), and count nineteen (violation of CUTPA); the motion is denied as to count one (negligence), count four (recklessness), count ten (negligent misrepresentation) and count thirteen (negligent infliction of emotional distress). Regarding SCI, the motion is granted as to count nine (intentional infliction of emotional distress) and count eighteen (breach of contract); the motion is denied as to count three (negligence), count six (recklessness), count twelve (negligent misrepresentation), count fifteen (negligent infliction of emotional distress) and count twenty-one (violation of CUTPA).