Opinion
CV186070947S
01-18-2019
Daniel WALSH, Conservator of the Person and Estate of John Doe v. Bruce BEMER
UNPUBLISHED OPINION
OPINION
BELLIS, J.
This action, filed by the plaintiff, Daniel Walsh, conservator of the person and estate of John Doe, stems from the alleged depraved and corrupt business activity of the defendant, Bruce Bemer, through which Bemer allegedly targeted, exploited, and otherwise harmed the plaintiff. The plaintiff’s operative complaint, the second amended complaint, consists of ten counts: (1) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (2) violations of the Trafficking Victims Protection Act (TVPA), actionable pursuant to 18 U.S.C. § 1595(a); (4) assault and battery; (5) reckless and wanton conduct; and (6) intentional infliction of emotional distress.
At the time of the filing of the motion to strike, the operative complaint was the first amended complaint. Thereafter, on the same day that the plaintiff’s objection was filed, he filed a request for leave to amend the complaint along with the second amended complaint. The second amended complaint is operative, as no objection to it was filed within fifteen days pursuant to Practice Book § 10-60(a)(3).
Counts three, six, seven, eight, nine, and ten are alleged against William Trefzger, another defendant who is not a party to the motion to strike.
The defendant moves to strike counts one and two of the complaint. The defendant moves to strike count one on the grounds that it alleges a violation of Connecticut Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-393 et seq., which, unlike CUTPA, does not permit a private cause of action, and that it is insufficiently pleaded. The defendant moves to strike count two on the ground that the plaintiff failed to state a claim by failing to assert a violation of the enumerated statutes needed to invoke 18 U.S.C. § 1595.
DISCUSSION
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
A. Count One
The defendant first argues that count one is legally insufficient because the claim is based on CORA, which does not permit a private cause of action. The defendant further argues that count one is insufficiently pleaded as a CUTPA claim because the plaintiff has failed to allege deceptive behavior or an ascertainable loss. In response, the plaintiff argues that count one properly alleges a violation of CUTPA pursuant to the Federal Trade Commission’s cigarette rule. The plaintiff argues that an alleged violation of CORA can support bringing a cause of action under CUTPA.
In the present action, the plaintiff sufficiently alleges a violation of CUTPA in count one. In count one, titled "[v]iolation of General Statutes § 42-110a et seq.," the plaintiff alleges that the "acts of the defendant ... or members of his racketeering conspiracy ... were oppressive, immoral, unscrupulous and in violation of public policy, including that set forth in CORA and General Statutes § 53a-83(c)(2)(A), amounting to an unfair trade practice in violation of CUTPA ..." The plaintiff also asserts a violation of CORA, but specifically alleges that the defendant’s alleged CORA violations amount to a CUTPA violation. CUTPA prohibits engagement in unfair methods of competition, deceptive acts, or practices in the conduct of "any trade or commerce." General Statutes § 42-110b(a). CUTPA supplies a private cause of action, providing that "[a]ny person who suffers any ascertainable loss of money or property, real or personal ... may bring an action ..." General Statutes § 42-110g(a). "[I]n determining whether a practice violates CUTPA, [the Supreme Court is] guided by the criteria set out in the Federal Trade Commission’s so-called cigarette rule: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been establish 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]." (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 378-79 n.11, 949 A.2d 1084 (2008). Our Supreme Court has held that analysis under CUTPA is not formulaic; all criteria do not have to be met to constitute a CUTPA violation. Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).
The plaintiff argues that alleging CORA violations can properly provide a basis for alleging practices that violate public policy under CUTPA. Because CUTPA is nonformulaic, a CUTPA violation "may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." Glazer v. Dress Barn, Inc., 274 Conn. 33, 82-83, 873 A.2d 929 (2005). There is a dearth of case law providing guidance on the use of a CORA violation to support a CUTPA claim. However, courts have held that the violation of the Connecticut Unfair Insurance Practices Act (CUIPA), which also lacks a civil action provision, can be used as a basis for a CUTPA claim. Mead v. Burns, 199 Conn. 651, 662-63, 509 A.2d 11 (1986). Similarly, CORA also can be used for that purpose, as CORA provides a statutory basis for a claim that a practice offends public policy. Additionally, our Supreme Court has provided guidance on the parameters of CUTPA application. In Fink v. Golenbock, 238 Conn. 183, 680 A.2d 1243 (1996), our Supreme Court held that the act "must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Id., 213; see also id., 212-13 ("trade or commerce ... is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible" [internal quotation marks omitted]); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995) ("CUTPA ... applies to a broad spectrum of commercial activity"). The defendant argues that CUTPA should not be construed to allow a claim based on a CORA violation because the legislature has declined to provide a private cause of action for violations of CORA. This argument is unavailing. Regardless of whether the legislature chose to provide a private cause of action for the violation of a criminal statute such as CORA, the well established case law provides that the violation of a statute can form the basis of a claim under CUTPA, which clearly provides a private cause of action. See Zulick v. Patrons Mutual Ins. Co., supra, 287 Conn 378-79 n.11.
Alternatively, the defendant also moves to strike count one on the ground that it is insufficiently pleaded, arguing that the plaintiff has merely provided conclusory statements without supporting facts, and that the plaintiff has not alleged an ascertainable loss. The defendant argues that the damages asserted by the plaintiff cannot be measured and are best classified as emotional distress damages, which are not an ascertainable loss for CUTPA purposes. "[T]o be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008). "An ascertainable loss is a loss that is capable of being discovered, observed, or established ... The term loss ... has been held synonymous with deprivation, detriment and injury." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, the plaintiff has alleged that the defendant’s acts "have resulted in ascertainable loss to the plaintiff, including bodily invasion, sexual abuse, drug provision and addiction and exploitation of his pre-existing drug and/or alcohol dependency ..." Unlike in Di Teresi v. Stamford Health System, Inc., 149 Conn.App. 502, 88 A.3d 1280 (2014), the plaintiff has claimed suffering of "actual monetary or physical loss." See id., 509 (holding that, in absence of claim of any actual monetary or physical loss, plaintiff patient’s claim "to have a reasonable expectation that she would be safe from harm and that the hospital would properly care for her" was not measurable for purposes of sustaining CUTPA violation [internal quotation marks omitted]). Moreover, although research reveals no appellate authority on this issue, courts have interpreted and applied CUTPA broadly, and the Superior Court has held that CUTPA can apply to personal injury claims. See Doe v. Boy Scouts of America Corp., 323 Conn. 303, 341-42 n.26, 147 A.3d 104 (2016), citing Simms v. Candela, 45 Conn.Supp. 267, 268, 711 A.2d 778 (1998) . In Simms, the court, Blue, J., reasoned "that the touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have ‘an entrepreneurial or business aspect.’" (Internal quotation marks omitted.) Id., 273, quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997). "[The plaintiff], like most personal injury plaintiffs, alleges that he has suffered economic losses, including medical expenses and lost wages ... Assuming this allegation to be true, he is a person who suffers [an] ascertainable loss of money." (Internal quotation marks omitted.) Simms v. Candela, supra, 274. Whether the alleged loss resulted from the alleged CUTPA violation is a factual issue to be decided by the judge or jury hearing the case. Id. In the present case, the plaintiff properly alleges injuries that, if true, amount to an ascertainable loss. Accordingly, the motion to strike is denied as to count one.
B. Count two
The defendant argues that count two is legally insufficient because the plaintiff alleges that the defendant violated 18 U.S.C. § 1595(a), which is not a statute that can be violated but rather provides a cause of action for a violation of the TVPA. On August 29, 2018, the plaintiff filed a request for leave to file a second amended complaint, which alleges that "the defendant ... engaged in a pattern of illegal and prohibited human trafficking activity for purulent sexual purposes in violation of 18 U.S.C. § 1591 and actionable under 18 U.S.C. § 1595(a) ..." Section 1591 of title 18 is a section that, as the defendant acknowledges, can be violated. The second amended complaint is operative, and thus the plaintiff has remedied the defect that was the basis for the motion to strike as to count two. Accordingly, the motion to strike must be denied as to that count as well.
Title 18 of the United States Code, § 1595, provides in relevant part, "(a) An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the Unite States and may recover damages and reasonable attorneys fees.
For the foregoing reasons, the defendant’s motion to strike is denied.