Opinion
No. CV-08-5005876S
July 10, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#112)
This action stems from the death of Robert Wininger, a former resident of two Haven Health Care facilities located in Norwich, Connecticut and Jewett City, Connecticut. Two of the defendants are Haven Health Care physicians who treated plaintiff. The third defendant is Raymond Termini (hereinafter "Termini"), former Chief Executive Officer of Haven Health Care, who received a great deal of notoriety in the wake of Haven Health Care's recent bankruptcy. None of the entities currently in bankruptcy are defendants in this case.
In fact, over 40 Haven entities are debtors in the Chapter 7 filing. In re Haven Eldercare, LLC, et al. United States Bankruptcy Court, District of Connecticut, New Haven Division, Case No. 07-32720 (ASD).
Defendant Termini brought this Motion to Dismiss dated April 3, 2008. Plaintiff filed an Objection dated April 29, 2008 and Termini filed a Reply Memorandum dated May 13, 2008. The parties presented oral argument on May 19, 2008. Termini argues that this Court lacks subject matter jurisdiction over the action against him for the following reasons: 1) A Bankruptcy Court Order dated January 22, 2008 involves the purchase of two insurance policies deprives this Court of subject matter jurisdiction; 2) The affairs of Termini and Haven Health Care are so intrinsically linked that the Bankruptcy Court has exclusive jurisdiction over actions involving Termini; and 3) Plaintiff was required to file a written opinion of a similar health care provider pursuant to Connecticut General Statutes § 52-190a(c).
I Motion to Dismiss Standards
"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to CT Page 11980 dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007).
II Does the Bankruptcy Court's Order Relating to the Insurance Policies Serve to Deprive this Court of Subject Matter Jurisdiction?
Defendant Termini claims that this matter is subject to the jurisdiction of the Bankruptcy Court based on Judge Dabrowski's January 22, 2008 Order in the Haven Health Care bankruptcy entitled "Order Granting Entry of an Order Authorizing the Debtors to Purchase Two `Tail' Policies of General Liability Insurance from CNA." The Order grants the Haven Health Care entities permission to purchase "tail" insurance policies that will provide liability coverage beyond the policy periods. The last line of the Order reads as follows: "It is further ordered that this Court shall retain jurisdiction over all matters arising from or related to the interpretation and implementation of this Order."
Termini claims, without benefit of specifics, that this Order relates to the instant action and presents the bootstrap argument that any decision to the contrary by this Court necessarily involves an interpretation of Judge Dabrowski's Order; such interpretation being solely the province of the Bankruptcy Court. If one were to take Termini's argument to its logical conclusion, Judge Dabrowski's Order could be invoked as the basis for dismissing every action in currently pending the state court system as state courts would be barred from determining whether or not the Order applied in each and every case.
This Court finds that Judge Dabrowski's Order bears no relation whatsoever to the instant action. The matters at issue here neither arise from nor relate to the purchase of the tail policies governed by the Order, the Order does not deprive this Court of subject matter jurisdiction, and Termini's Motion to Dismiss on this basis is hereby denied.
III Are Termini's Financial Affairs So Intrinsically Intertwined with those of Haven Health Care That the Bankruptcy Court Has Exclusive Jurisdiction Over This Action?Defendant Termini claims that his financial affairs are so intrinsically intertwined with those of Haven Health Care that the Bankruptcy Court has exclusive jurisdiction over actions against him. While Termini is correct in arguing that bankruptcy court jurisdiction can extend to actions against non-debtors, Lukas, Nace, Gutierrez Sachs, Chartered v. Havens, 245 B.R. 180, 182 (D.D.C. 2000), the proper vehicle for litigating such an issue is to seek an injunction from the Bankruptcy Court: "Injunctions are authorized under 11 U.S.C. § 105(a) (1982), which empowers the bankruptcy court to issue any order necessary and appropriate to carry out the provisions of the Code, including orders restraining actions elsewhere." In re Johns-Manville Corporation, 801 F.2d 60, 63 (2d Cir. 1986). "[A] bankruptcy court is authorized, once jurisdiction is established, to `issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.' This provision includes the authority to enjoin litigants from pursuing actions pending in other courts that threaten the integrity of the bankruptcy estate." In re Davis, 730 F.2d 176, 183-84 (5th Cir. 1984).
Absent the issuance of such an injunction by the bankruptcy court, this Court finds that it has jurisdiction over the action against Termini and his Motion to Dismiss on this basis is hereby denied.
IV Were Plaintiffs Required to File a Written Opinion of a Similar Health Care Provider Relating to Termini Pursuant to § 52-190a?
Defendant Termini claims that plaintiffs' failure to file a written and signed opinion of a similar health care provider indicating that there appeared to be medical negligence as it relates to the claims against Termini requires the Court to dismiss the action. Section 52-190a(a) requires that no civil action alleging that injury or death was caused by the negligence of a health care provider may be filed unless accompanied by such a written opinion. Termini correctly argues that a motion to dismiss is the proper vehicle to raise this issue in the wake of the legislature's enactment of P.A. 05-275, codified as § 52-190a(c) of the General Statutes: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." See Rios v. CCMC Corporation, 106 Conn.App. 810, 822 (2008).
The threshold question is whether the action against Termini is, in fact, a negligence claim to which the written opinion requirement applies. Each of the claims against Termini contains the following allegation: "The defendant Raymond Termini knowingly drained and misappropriated the assets of the Haven homes including Haven of' Jewett City and Haven of Norwich, and used assets the assets to furnish a lavish lifestyle and launch a Nashville record company known as Category Five Records, resulting in deplorable conditions in the Haven homes and numerous preventable injuries and deaths of residents including the death of plaintiff's decedent." Plaintiff's Complaint, Thirteenth through Eighteenth Counts, ¶ 17.
The requirements of § 52-190a do not apply to allegations of intentional conduct: "Because the count alleges willful rather than negligent conduct, this count is not subject to the requirements of § 52-190a, which apply only to actions based on negligence." Pascarelli v. Corning Clinical Laboratories, Inc., Judicial District of Danbury, Dkt. No. 325312 (March 25, 1997, Moraghan, J.) [19 Conn. L. Rptr. 82]. See, also, Landry v. Zborowski, Judicial District of Tolland at Rockville, Dkt. No. 07-6000211 (October 26, 2007, Vacchelli, J.) [44 Conn. L. Rptr. 452]; Roux v. Leach, Judicial District of New London, Dkt. No. 123669 (June 25, 2002, Martin, J.) [32 Conn. L. Rptr. 402], Petronio v. Bunch, Judicial District of New Britain, Dkt. No. 01-0509130 (April 23, 2002, Wiese, J.).
Because the allegations against Termini involve intentional, rather than negligent conduct, plaintiffs were not required to file a written and signed opinion of a similar health care provider and, as a result, Termini's Motion to Dismiss on this ground is denied.
V Conclusion
Defendant Termini's Motion to Dismiss is denied in its entirety.