Opinion
No. CV 09-5031256 S
August 4, 2010
MEMORANDUM OF DECISION
On August 18, 2009, the plaintiff, Jan Van Eck, commenced the present action by service of process on the defendant, West Haven Funeral Home. After a request to revise, the plaintiff filed a five-count amended complaint on November 12, 2009. The court then granted the defendant's motion to strike count two of the complaint, a claim for breach of contract. On February 26, 2010, the plaintiff filed a five-count second amended complaint (#127), the operative complaint.
The operative complaint alleges the following facts. The plaintiff's mother, the decedent, passed away at Middlesex Hospital on or about July 15, 2006. Between July 15, 2006 and August 20, 2006 the defendant removed the decedent, transported her to their facility and burned her "with the intent therein to inure to their financial gain and benefit." In violation of state statute, the defendant did not receive consent from the plaintiff nor did it notify the plaintiff of these steps. By taking these steps the defendant denied the decedent "a proper Christian burial," "failed to use a hearse to convey the deceased mother of [the] plaintiff," "did not place the deceased mother of [the] plaintiff in a proper coffin," "failed, refused and/or neglected to invite the [p]laintiff to attend at their premises at the time they conducted the burning," "failed to take due care and/or make reasonable inquiry to determine the wishes of either the deceased mother or the [p]laintiff son herein," and acted "egregiously and recklessly negligent."
The plaintiff also alleges that the defendant breached a contract with Walter Van Eck, the plaintiff's brother, violated General Statutes 42-110(b) of the Connecticut Unfair Trade Practices Act (CUTPA), acted negligently in causing the plaintiff pain and mental anguish and by entering an appearance in probate proceedings "tortiously interposed itself into matters which will require . . . the expenditure of funds for counsel to the [t]rustee to respond appropriately with that forum." The plaintiff seeks monetary damages, exemplary damages, double and treble damages, and attorneys fees.
On March 4, 2010, the defendant filed the present motion for summary judgment (#125). In support of the motion, the defendant has filed a memorandum of law (#126), to which an affidavit of Walter Van Eck, a certified death certificate, hospital records, a letter from Jeffrey Lemkin, a cremation certificate, the plaintiff's interrogatory responses, a West Haven Funeral Home contract and a probate court application are attached. On March 22, 2010, the plaintiff filed an objection to the motion (#134), with a personal affidavit attached (#135). The defendant filed a reply memorandum (#136) on March 31, 2010.
After the current motion was filed the plaintiff requested leave to amend the operative complaint. The court, Robinson, J., sustained the defendant's objection to that request.
On July 5, 2010, the plaintiff filed an additional opposition memorandum (#143), however, pursuant to Practice Book § 17-45, the filing was untimely, as it was filed less then five days before short calendar. As a result, the court overruled the defendant's additional objection to the motion.
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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).
In the present case, the defendant makes several arguments in support of its' motion. First, the defendant argues that counts one, three and four of the operative complaint are barred by the statutes of limitations. Separately, the defendant argues that each of these counts is premised on an incorrect statement of facts and accordingly no genuine issue of material fact remains in dispute. The defendant also argues that there are no issues of fact as to count two, a claim for breach of contract, in that the plaintiff was not a party to a contract with the defendant nor was he an intended beneficiary of the contract between the defendant and the plaintiff's brother. Lastly, the defendant argues that the fifth count of the complaint fails to state a claim upon which relief may be granted.
The defendant argues that the first count of the complaint is barred by the statute of limitations. Specifically, he argues that the statute of limitations should begin to run when the decedent was cremated. The plaintiff disputes this arguing it did not begin to run until the remains were out of the defendant's possession and the process of delivering the residual ashes was completed. The first count of the complaint sounds in torts as it alleges that the defendant acted "egregiously and recklessly negligent, outrageous and tortious, and offend[ed] the standards of due care and proper respect for the dead, and with reckless disregard for the damages foreseeably inflicted upon [the] [p]laintiff."
The plaintiff's argument that the three-year statute of limitation commenced on a weekend and thus should be extended until the following business day is of no avail. See e.g. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 646, 501 A.2d 1223 (1985) (holding that where the last day of an appeal fell on a Sunday, service of process the next day did not satisfy the statutory requirements). The provisions of the General Statutes and Practice Book providing an extension to the filing date, from the day the clerk's office is closed to the next business day, do not apply to initial filings. See General Statutes § 51-347c; Practice Book § 7-17.
"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 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . General Statutes § 52-577 provides: `No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.' This court has determined that [s]ection 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred." (Citations omitted; internal quotation marks omitted.) Farnsworth v. O'Doherty, 85 Conn.App. 145, 148-49, 856 A.2d 518 (2004).
In the present case, the cause of action arose as soon as the decedent was cremated. Particularly telling are the allegations that "the deceased mother of [the] [p]laintiff [was denied] a proper Christian burial," that the defendant "failed to use a hearse" or place the deceased "in a proper coffin" and that the defendant "failed to take due care and/or to make reasonably inquiry to determine the wishes of either the deceased mother or the [p]laintiff son." These allegations arise as soon as the cremation occurred, on July 25, 2006. At least one other court in this state has recognized that the statute of limitations begins to run upon cremation. See Ambatiello v. Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 90 031040 (March 12, 1993, Gormley, J.) ( 8 Conn. L. Rptr. 758). The complaint was filed on July 27, 2009, more then three years after the decedent's cremation, and as a result the claim is untimely.
The defendant argues that count two of the complaint fails to state a cause of action and is premised on an incorrect statement of facts. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). "Although facts may be in dispute, the disputed facts must be material. That is, the facts must satisfy the elements [of the alleged cause of action]." Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 939 A.2d 629 (2008).
"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.) Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). "[A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981). The Supreme Court has concluded that "the intent of both parties to a contract determines whether a third party has contract rights as a third party beneficiary." Grigerik v. Sharpe, 247 Conn. 293, 310, 721 A.2d 526 (1998).
In count two, the plaintiff has alleged, that as an intended beneficiary, the defendant breached a contract with the plaintiff's brother, Walter Van Eck. The defendant has attached the cremation order, which was signed by Walter Van Eck. The plaintiff argues he was the intended beneficiary of the contract because the cremation order states "[i]t is also assumed by Oak Grove Crematory that the Cremation has been agreed upon by all legal next of kin." Despite this clause, there is no evidence that either party to the alleged contract intended to confer a benefit upon the plaintiff. Instead Walter Van Eck testifies that "[m]y brother, Jan Van Eck, was not a party to the contract with West Haven Funeral Home" and that the defendant "had abandoned [their mother's] body."
There is also no issue of fact as to whether the contract itself was breached. In fact, the plaintiff argues that the contract has not been produced, while also arguing that the defendant breached the contract by not notifying the plaintiff of the cremation. The facts do not support that there was any breach of contract between Walter Van Eck and the defendant. The defendant carried out the decedent's cremation, pursuant to the cremation order. The plaintiff has not provided any evidence to the contrary. Therefore there are no issues of fact as to whether a breach of contract occurred or whether the plaintiff was the intended beneficiary of the contract. As a result, summary judgment is granted as to count two of the operative complaint.
In count three of the complaint, the plaintiff alleges a CUTPA claim. The defendant argues that the claim is barred by the statute of limitations. The plaintiff argues that like count one the statute of limitations did not begin to run until the decedent's ashes were delivered. General Statutes § 42-110g(f) provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." "Section 42-110g(f) applies to all claims brought under CUTPA without regard to the nature of the underlying unfair trade practice that has been alleged." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606-07, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007).
The CUTPA claim incorporates the allegations in the first count and, as with count one, arises out of the cremation of the decedent on July 25, 2006. Therefore, because the action was commenced more then three years after the occurrence of a violation arose, count three of the complaint is untimely.
The defendant also argues count four is barred by the statute of limitations. In count four the plaintiff alleges that the defendant was negligent in "failing to take due care and/or to make reasonable inquiry" of the plaintiff and his mother. General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . 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 . . ." "It is well established that the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period." (Citation omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000).
In the present case, because the action was commenced more then three years from the date of the alleged negligent act, the cremation, the action is barred by the statute of limitations.
In count five the plaintiff alleges that the defendant "tortiously interposed itself" into the probate proceedings, requiring the expenditure of funds by the trustee and diminishing the value of the defendant's inheritance. The defendant argues that the fifth count of the complaint is not a legally recognizable cause of action and if such a cause of action does exist there are no issues of fact.
"[I]t is true that no Connecticut Appellate or Supreme Court decisions have been rendered on [the issue of recognizing the claim of tortious interference with an inheritance], which, of course, does not mean the Supreme Court will not recognize this tort, perhaps in this case." Bocian v. Bank of America, N.A., Superior Court, judicial district of Hartford, Docket No. CV 06 4019877 (December 8, 2006, Rittenband, J.T.R.) ( 42 Conn. L. Rptr. 483). Despite the lack of case law, at least one court in the state has recognized the tort of tortious interference with an inheritance, stating that "[s]uch a cause of action is very similar if not identical to a recognized cause of action in Connecticut; tortious interference with a contractual right . . . The elements are: (1) that defendant intentionally interfered with the giving or leaving of property to the plaintiff; (2) that defendant used unlawful means to accomplish the interference or had an improper purpose; and (3) proof of damages." Id. "A plaintiff may recover damages for tortious interference with a contract not only where the contract is thereby not performed . . . but also where the interference causes the performance to be more expensive or burdensome . . ." (Citation omitted; internal quotation marks omitted.) Herman v. Endriss, 187 Conn. 374, 376-77,446 A.2d 9 (1982).
The court finds that the allegations of the claim are one of tortious interference with an expected inheritance. There remains, however, the question of whether there is an issue of material fact. Walter Van Eck, as executor of the decedent's will, testified that he supplied the defendant with a HIPPA authorization for the decedent's medical records. Additionally, he testified that there was no probate hearing and thus no expenses pertaining to his brother's inheritance. The plaintiff's only evidence is a personal affidavit. In the affidavit the plaintiff testifies that "I have suffered damages by the actions of the [d]efendant by counsel in filing an [a]ppearance and [p]leadings, making representations, and asking the Probate Court to intercede with a [h]earing and [o]rders on its behalf."
"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). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). "The plaintiff's conclusory statements, in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The plaintiff's testimony contains only assertions of fact. There has been no evidence to show that the defendant has intentionally interfered with the plaintiff's property. There is also no factual dispute as to the second element of tortious interference, as the facts do not support that the defendant used unlawful means or an improper purpose to interfere with the plaintiff's inheritance rights. Lastly, damages have not been shown, as Walter Van Eck, the executor of the estate, testified that there was "no diminution of value" to the plaintiff's potential inheritance. Being as there is no issue of material fact, summary judgment is granted as to count five.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment as to all five counts of the operative complaint.