Karl Bernard, Administrator of the Estate of Bob Anthony Bernard, Deceased v. Amanda Baitch et al.
FST CV 09 5013017 S
Decided: January 13, 2012
The issue before the court is whether to grant the apportionment plaintiffs’ motion to strike the apportionment defendants’ first special defense to the first count of the apportionment plaintiffs’ complaint. ? The following facts establish the context for that issue.
The plaintiff, Karl Bernard, brought this wrongful death action in his capacity as the administrator of the estate of his deceased adult son, Bob Anthony Bernard, against the defendants, Amanda Baitch, Richard Istvan, Stamford Emergency Medical Services, Inc. and Stamford Hospital. ? In his amended complaint dated February 23, 2010, the plaintiff alleges that prior to the decedent’s death, he had been appointed the conservator for the person and estate of the decedent due to psychological impairment suffered by the decedent. ? The decedent’s psychological condition was managed on an outpatient basis through the F.S. Dubois Center, the Stamford location of the Southwest Connecticut Mental Health System.
On December 15, 2007, at approximately 2:20 a.m., the decedent, then age thirty-two, fell in his bathroom at the family residence and was discovered by his mother, who called 911 for medical assistance because the decedent was exhibiting seizure-like symptoms. ? Baitch and Istvan responded to the call. ? At the time, Baitch was a paramedic licensed to provide paramedic services and Istvan was an emergency medical technician of intermediate certification. ? Baitch and Istvan were employed by defendant, Stamford Emergency Medical Services, Inc., and Baitch provided paramedic services by and through Stamford Hospital. ? Stamford Hospital established guidelines, policies and procedures for the provision of care and services in the field. ? During the field visit, the plaintiff informed the defendants that he was concerned that the decedent was seizing and needed to be transported to a hospital for appropriate care and treatment. ? However, the defendants did not transport the decedent to a hospital and left him at the family residence.
At approximately 5:50 a.m. of the same day, EMS was dispatched to the decedent’s residence again after the decedent was found unresponsive in bed. ? The decedent was subsequently pronounced dead by the Chief Medical Examiner, H. Wayne Carver, II, M.D. The plaintiff alleges that the injuries and damages suffered by the decedent were caused as a direct and proximate result of the negligence and malpractice of the defendants, in that the defendants failed to carry out the appropriate procedures in examining the decedent and determining whether to transport him to a hospital for additional treatment.
On March 12, 2010, defendants Amanda Baitch, Richard Istvan and Stamford Emergency Medical Services, Inc., filed an apportionment complaint pursuant to General Statutes ???52?102b and 52?572h seeking to add the plaintiff and his wife, Julia Bernard, as apportionment defendants in both their capacities as conservators?1and as individuals.2
The apportionment complaint alleges the following relevant facts in addition to those in the original complaint. ? According to a medical examiner upon post-mortem examination and analysis, the decedent’s cause of death was determined to be Clozapine toxicity. ? The apportionment complaint further alleges that the apportionment defendants knew or should have known that the decedent was under the influence of Clozapine and/or other drugs and medications at the time of his death; ?that he had not been taking these drugs and medications in accordance with the instructions of his medical doctor and that he had threatened to cause physical injury or harm to himself or others.
Count one of the apportionment complaint further alleges that based on these facts, the apportionment defendants were negligent in their capacity as conservators, in that they owed duties to the decedent and that the injuries and damages suffered by the decedent were caused in whole or in part by the apportionment defendants’ negligent failure to fulfill their duties to the decedent. ? Count two of the apportionment complaint alleges that the apportionment defendants were the decedent’s parents and that the injuries and damages suffered by the decedent were caused in whole or in part by the negligence of the apportionment defendants as parents, in that they failed to fulfill their duties to the decedent.
Both counts assert that the apportionment defendants were negligent in that they: ?1) knew the decedent had been prescribed medications, including Clozapine, that could be potentially dangerous to the decedent if not taken properly; ?2) failed to properly monitor the decedent’s ingestion of these medications; ?3) entrusted the decedent with control of the medications despite the fact that they knew or should have known this created an unreasonable risk of harm; ?4) failed to properly supervise the decedent’s medical and psychiatric care; ?5) failed to ensure that he received appropriate medical treatment. ? The apportionment complaint further alleges that after the apportionment plaintiffs left the decedent’s residence without taking him to the hospital, the apportionment defendants were negligent for failing to transport the decedent to a hospital themselves despite their belief that he was suffering from a medical condition and that they were negligent for failing to adequately monitor the decedent’s condition between 2:20 a.m. and 5:50 am., the period between the departure of the apportionment plaintiffs from the family residence and the discovery of the decedent in an unresponsive condition in bed.
On May 26, 2010, the apportionment defendants filed a motion to strike the apportionment complaint on the grounds that they were immune from suit in their capacity as conservators and that they cannot be sued in their individual capacity as parents because they did not owe a duty to the decedent, their adult son. ? The motion to strike was denied by the court, Jennings, J.T.R., on March 22, 2011 [51 Conn. L. Rptr. 604]. ? In its memorandum of decision, the court noted that the issue of the immunity of conservators was under consideration by the Supreme Court as a question certified to it by the United States Court of Appeals for the Second Circuit in Gross v. Rell, 585 F.3d 72 (2nd Cir., 2009) (affirming District Court’s certification of the following question to the Connecticut Supreme Court: ??Under Connecticut law, does absolute quasi-judicial immunity extend to conservators appointed by the Connecticut Probate Courts?? ?Id., 96). ? The court also found that the claims of negligent entrustment, a tort long recognized in Connecticut, in the second count of the Apportionment Complaint precluded the granting of the motion to strike that count. ? Neither the apportionment defendants’ motion to strike nor Judge Jennings’ memorandum of decision addressed the issue of whether the first count of the apportionment complaint was permitted under General Statutes ??52?572h(k).
On August 25, 2011, the apportionment defendants filed amended special defenses, including the defense that the apportionment plaintiffs’ claims against them in their capacity as conservators are not permitted by the provisions of General Statutes ??52?572h(k). ?On October 24, 2011, the apportionment defendants filed a motion to strike that special defense, claiming that the allegations of their apportionment complaint sound in negligence rather than breach of fiduciary duty.
DISCUSSION
?The purpose of a motion to strike is to contest ? the legal sufficiency of the allegations of any [pleading] ? to state a claim upon which relief can be granted.? ?(Internal quotation marks omitted.) ?Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). ??A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.? ? Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 (2001). ? In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. ?Connecticut National Bank v. Douglas, 221 Conn. 530, 536 (1992). ??It is fundamental that in determining the sufficiency of a [pleading] challenged by [an opposing party’s] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ? Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.? ?(Internal quotation marks omitted.) ?Violano v. Fernandez, 280 Conn. 310, 318 (2006). ??A motion to strike admits all facts well pleaded; ?it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.? ?(Emphasis in original; ?internal quotation marks omitted.) ?Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997).
?Section 52?102b(a) grants the right to file an apportionment complaint to a defendant in any civil action to which Section 52?572h applies ? The Supreme Court has stated that a civil action to which Section 52?572h applies within the meaning of 52?102b, means a civil action based on negligence. ?Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793?95, 756 A.2d 237 (2000).? ?(Internal quotation marks omitted.) ? Altavela v. Scott Swimming Pools, Inc., Superior Court, Judicial District of Danbury, Docket No. CV 03 0350723 (November 22, 2005, Schuman, J.) (40 Conn. L. Rptr. 322, 323).
General Statutes ??52?572h provides in relevant part: ??(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought ? (c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property ? if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section ?’ General Statutes ??52?572h(k) provides: ??This section shall not apply to breaches of trust or of other fiduciary obligation.? ?General Statutes ??52?572h(k).
In the memorandum of law submitted by the apportionment plaintiffs in support of their motion to strike, the apportionment plaintiffs claim that the special defense based on ??52?572h(k) must be struck because the relevant count of their apportionment complaint alleges the negligence of the apportionment defendants, not a breach of trust or any other fiduciary obligation. ? On the other hand, the apportionment defendants point out that the duties to the decedent which they are alleged to have negligently performed or omitted are duties arising solely out of their appointment as co-conservators of the defendant and that such duties are fiduciary obligations? expressly excluded from the statutory scheme of the apportionment statute. ? The apportionment defendants further argue that although negligence is alleged, these allegations only arise in the context of the conservators’ breach of fiduciary obligations to the decedent and consequently apportionment is prohibited.
?[T]he determination of whether a duty exists between individuals is a question of law ? Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty ? Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. ? The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. ? 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) ??25:05, p. 25?7.? ?(Citations omitted; ?internal quotation marks omitted) Jaworski v. Kiernan, 241 Conn. 399, 404?05 (1997).
?[A]?fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.? ?(Internal quotation marks omitted.) ?Murphy v. Wakelee, 247 Conn. 396, 400 (1998). ??Rather than attempt to define a fiduciary relationship in precise detail and in such a manner to exclude new situations, [the Connecticut Supreme Court has] instead chosen to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting ? influence on the other.? ?(Internal quotation marks omitted.) ? Elm City Cheese Co. v. Federico, 251 Conn. 59, 99 (1999). ? In apportionment cases brought by a client alleging negligence against a lawyer, the lawyer has a fiduciary relationship with his client and is thus exempt from apportionment. ? See, e.g., Reed v. Watson, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017353 (May 13, 2009, Gilardi, J.) (47 Conn. L. Rptr. 758), Shevin v. Shafran, Superior Court, judicial district of Danbury, Docket No. CV 99 0337189 (November 6, 2001, Moraghan, J.) (30 Conn. L. Rptr. 647) and Whitaker v. Erdos & Maddox, Superior Court, judicial district of Fairfield, Docket No. CV 00 0371896 (November 14, 2000, Skolnick, J.).
?The fiduciary duty comprises two prongs: ?a duty of care and a duty of loyalty. ? While the duty of care requires that fiduciaries exercise their best care and judgment, the duty of loyalty derives from the prohibition against self-dealing that inheres in the fiduciary relationship.? ? Estate of Lintgeris v. Lintgeris, Superior Court, judicial district of Waterbury, Docket No. CV 08 50008846 (June 3, 2009, Sheedy, J.). ??[F]iduciary duties do not come in a one size fits all package. ? The nature of the duties of a conservator of an incompetent or a trustee for a minor may be entirely different from that of an agent of a sophisticated client in the business world.? ?(Internal quotation marks omitted.) ? XL Specialty Ins. Co. v. Carvill America, Inc., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 04 4000148 (May 31, 2007, Beach, J.) [43 Conn. L. Rptr. 536].
There is no question but that the statutory duties imposed on conservators of the person or estate of a ward are fiduciary obligations. ?General Statutes ??45a?199 states in relevant part that: ??fiduciary includes ? conservator.? ?(Internal quotation marks omitted.) ? See, e.g., Luster v. Luster, 128 Conn.App. 259, 270 (2011). ??A conservator has only such powers as are expressly or impliedly given to him by statute.? ?Murphy v. Wakelee, supra, 247 Conn. 406. ? The duties of a conservator of the person include: ??(1) The duty and responsibility for the general custody of the conserved person ? (3) the authority to give consent for the conserved person’s medical or other professional care, counsel, treatment or service; ?(4) the duty to provide for the care, comfort and maintenance of the conserved person.? ? General Statutes ??45a?656. ? Furthermore, General Statutes ??45?644 states in relevant part that the: ??conservator of the person? [has responsibility over] personal affairs of a person found to be incapable of caring for himself.?
Paragraphs 24 and 25 of the apportionment complaint allege that the apportionment defendants violated certain duties which they owed to the decedent. ? The list of duties set forth in those paragraphs mirrors the duties imposed on conservators of the person as listed in ??45a?656. ? Although the apportionment complaint does utilize some negligence language (?knew or should have known?), the claims of what the apportionment defendants failed to do were inherently based on violations of their express fiduciary obligations.
Given the plain and unambiguous wording of ??52?572h(k), General Statutes ??1?2z mandates that the text of the statute should be read as is written. ? The apportionment complaint does not allege the breach by the apportionment defendants of any duty owed to the decedent other than those arising out of their duties as co-conservators of the person and estate of the decedent. ? These duties are, without doubt, the type of fiduciary obligations that ??52?572h(k) excludes from the scope of the apportionment statute. ? The court finds that the apportionment defendants’ special defense based on ??52?572h(k) states a valid special defense. ? Accordingly, the apportionment plaintiffs’ motion to strike that defense is denied.
David R. Tobin, J.
FOOTNOTES
FN1.?The complaint alleges that the plaintiff had been appointed by the probate court as the conservator for his son before his death. ? The apportionment complaint alleges on information and belief that both parents had been appointed as conservators. ? For purposes of this motion to strike, the allegations of the apportionment complaint must be taken as true..??FN1.?The complaint alleges that the plaintiff had been appointed by the probate court as the conservator for his son before his death. ? The apportionment complaint alleges on information and belief that both parents had been appointed as conservators. ? For purposes of this motion to strike, the allegations of the apportionment complaint must be taken as true.
FN2.?The defendants, Amanda Baitch, Richard Istvan and Stamford Emergency Medical Services, Inc., will herein be referred to as ?the apportionment plaintiffs.? ? The defendant, Stamford Hospital, is not a party to the apportionment complaint. ? The plaintiff and Julia Bernard will herein be referred to as ?the apportionment defendants.?.??FN2.?The defendants, Amanda Baitch, Richard Istvan and Stamford Emergency Medical Services, Inc., will herein be referred to as ?the apportionment plaintiffs.? ? The defendant, Stamford Hospital, is not a party to the apportionment complaint. ? The plaintiff and Julia Bernard will herein be referred to as ?the apportionment defendants.?
Tobin, David R., J.