Benjamin Wohlfert v. The Travelers Insurance Company and Alternative Employment, Inc. (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

The plaintiff, Benjamin Wohlfert, initiated this action by way of a complaint in the nature of interpleader, in which he alleges that he was seriously injured in an accident on March 17, 2006 and claimed damages against three parties.   During the course of litigation, Wohlfert received workers' compensation benefits from the defendant in the present action, Alternative Employment, Inc. (AEI) which then intervened as a plaintiff in those actions and brought independent complaints against the defendants.   After Wohlfert obtained a recovery in that litigation, AEI asserted a lien against that recovery alleging that if AEI is entitled to any portion of the recovery, its portion should be equitably limited by the amount of compensation it owes to Wohlfert for obtaining the recovery.

AEI filed an answer in which it denied most of the material allegations of the complaint and asserted fourteen special defenses and a ten count counterclaim against Wohlfert, alleging breach of the settlement agreement, conversion, statutory theft, fraud, fraudulent misrepresentation, violations of the Connecticut Unfair Trade Practices Act, breach of an implied covenant of good faith and fair dealing, violations of the Workers' Compensation Act, civil conspiracy and unjust enrichment.   AEI asserts that although the initial settlement payments were paid to Wohlfert's attorneys, Wohlfert and his attorneys failed to repay the workers' compensation liens that AEI asserted against Wolfert.

On March 16, 2010, Wohlfert filed a reply to AEI's special defenses and an answer and special defense to AEI's counterclaims, alleging that he commenced this action in accordance with rule 1.15(f) of the Rules of Professional Conduct;  that he made a payment to AEI's attorney in accordance with that rule, by way of a certified bank check;  and that AEI's attorney rejected the payment and returned the check.

On March 30, 2010, AEI moved to strike this special defense on the ground that it fails to state a claim upon which relief can be granted in that:  (1) Wohlfert is not an attorney, and he therefore cannot rely upon the Rules of Professional Conduct;  and (2) those rules cannot provide the basis for a cause of action or special defense, and can only be used for disciplining attorneys.

AEI correctly argues that a provision in the Rules of Professional Conduct cannot be properly used as a cause of action or a special defense.  Ankerman v. Mancuso, 79 Conn.App. 480, 485-86 (2003).   Our Appellate Court has specifically held that “the Rules of Professional Conduct do not of themselves give rise to a cause of action”;  Noble v. Marshall, 23 Conn.App. 227, 231 (1990).

However, that special defense also alleges that he, “in accordance with Rule 1.15(f) of the Rules of Professional Conduct, tendered payment ․ to counsel for the defendant ․ That payment was submitted by certified bank check [and][c]ounsel for the defendant subsequently rejected tender and returned the check.”

Payment as a special defense has been upheld in Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 289 (2004);  Atlantic National Trust, LLC v. Van Eck, supra, 89 Conn.App. 209.   Dovenmuehle v. Brucoli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No., 173479 (February 8, 2000, Rodriguez, J.);   Bank Boston v. Pruitt, Superior Court, judicial district of Tolland at Rockville, Docket No. 067795 (August 11, 1999, Kaplan, J.);   Bankers Trust Co. v. Mednick, Superior Court, judicial district of New Haven at Meriden, Docket No. 254012 (November 2, 1998, Beach, J.).

Farmers & Mechanics Bank v. Santangelo, Superior Court, judicial district of Middlesex at Middletown, Docket No. 067481 (December 8,1995, Stanley, J.);   Bristol Savings Bank v. EFA Acceptance Corp. Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 515249 (June 1, 1993, Aurigemma, J.).

Since Wohlfert's special defense is also premised on his allegations of payment it is unnecessary to consider the claim based on violation of the Rules of Professional Conduct.

AEI's motion to strike is denied.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.