2008 Ct. Sup. 15622
No. CV07-5004755SConnecticut Superior Court Judicial District of Waterbury at Waterbury
September 26, 2008
BRUNETTI, J.
MEMORANDUM OF DECISION
On May 7, 2008, the defendants, John Kaczmarek, M.D. and Specialties in Women’s Health Care, P.C. filed a motion to strike the Second Count of the Plaintiff’s Fourth Revised Complaint, dated April 18, 2008. On August 26, 2008, the defendant, Waterbury Hospital filed an identical motion to strike the Third Count. The defendant’s claim are, that in paragraphs 29 and 30 of Count two, and paragraphs 38 and 40 of Count Three, that the plaintiffs Shukrije Zogaj and Arsim Zogaj are suing for duplicate damages as alleged in Count One of the Fourth Revised Complaint.
This action arises out a medical malpractice action filed on behalf of Sihana Zogaj, a minor wherein it is alleged that the defendants are responsible for the injuries suffered by the plaintiff at birth on February 11, 2005. Paragraph 29 of the Second Count and paragraph 38 of the Third Count read as follows
Shukrije Zogaj and Arsim Zogaj sue for injuries to the person of Sihana Zogaj, general and special damages, and all damages, therein, including but not limited to past, present and future medical expenses.
Paragraph 30 of the Second Count and paragraph 40 of the Third Count alleges
As a further direct and proximate cause of the negligence of each Defendant, Shukrije Zogaj and Arsim Zogaj, have expended and will continue to expend in the future, tremendous effort and large sums of money for extraordinary medical care, equipment, nursing care, rehabilitative care, and custodial attendant and other care for their child proximately caused by the Defendant’s negligence.
These allegations are identical to the allegations in paragraphs 25 and CT Page 15623 26 of the First Count. The defendant’s argument is that the plaintiff’s parents attempt to recover monies expended on behalf of the minor child in the present action is nonjusticable because it will result in a double recovery by the plaintiffs. That because the minor child has sought the same damages in the First Count of the Fourth Revised Complaint the plaintiff parent’s claim must be precluded by the long-standing common-law rule barring double recovery for the same loss. Haynes v Yale New-Haven Hospital, 243 Conn. 17 (1997).
The plaintiff filed an objection to the motions to strike dated July 3, 2008. The plaintiffs point to Connecticut General Statutes § 46b-37(b), wherein, the parents of a minor child are responsible for the expenses of their minor child until the age of eighteen years. That the sole purpose of Counts Two and Three is to protect the potential financial responsibility of the parents. Counsel for the plaintiff-parents stipulated that he is not seeking double recovery.
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 finding by the trial court. (Internal quotation marks omitted.)
Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).
It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party’s] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. (Internal quotations omitted.)
Commission of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
The court must construe the facts in the complaint most favorably to the plaintiff. (Internal quotation marks omitted.)
CT Page 15624
Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293
(1997).
The court finds that the Second and Third Count are well pleaded. The court is satisfied that since the plaintiff-parents would bear the ultimate responsibility for their child’s medical expenses and care, that to allow them to sue for these expenses is a claim upon which relief can be granted.
The motions to strike are denied.
CT Page 15625