Riverside Healthcare Center, Inc. v. Margaret Romaniello et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Riverside Healthcare Center, Inc., moves to strike the special defense of equitable estoppel and the three counts of the counterclaim filed by the defendants, Margaret Romaniello and Mary MacMahon.

A motion to strike “admits all the facts well pleaded;  it does not admit conclusions or the truth or accuracy of opinion stated in the pleadings.”   Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).

Equitable Estoppel

The complaint alleges that the defendants were financially responsible for certain nursing home expenses for care which the plaintiff provided for their father, Richard Coughlin.   In their revised answer, the defendants assert the special defense of equitable estoppel, alleging that the plaintiff failed to advise the defendants properly regarding level of care options and the availability of Medicare or other insurance coverage for a given option.

The movant contends that this special defense lacks any allegations that the plaintiff affirmatively communicated any specific information to the defendants as to whether a particular course of care would or would not be covered by insurance, and, therefore, fails to set forth a valid special defense of equitable estoppel.   The court agrees with this contention.

The defendants do not aver that the plaintiff was their insurance agent.   The only purported relationship between the parties is that the plaintiff provided convalescent care for the defendant's father.   No fiduciary duty arises in this context.

Equitable estoppel had two elements, viz. 1) the party against whom the defense is asserted must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and 2) the proponent of the defense must have changed position detrimentally based on that inducement.  Levine v. Sterling, 300 Conn. 521, 534–35 (2011).

In the present case, the defendants only allege a failure to supply information and not that the plaintiff affirmatively represented to them that insurance or Medicare would cover specific services rendered by the plaintiff in the care of Coughlin.   Nondisclosure, under the circumstances alleged in this case, cannot satisfy either of the two elements of equitable estoppel.   The motion to strike is granted as to this special defense.

Common-law Negligence

The first count of the defendants' counterclaim attempts to state a cause of action for common-law negligence regarding the financial consequences of the various care options for their father and whether insurance was available to reimburse such expenses.   In order for the defendant to prevail on a common-law negligence claim, they must allege and prove facts which impose a duty of care on the plaintiff, as a nursing home facility, to provide accurate insurance coverage advice to the defendants with respect to the services to be rendered for the benefit of their father.

This count of the counterclaim asserts that the plaintiff was responsible for advising the defendants as to insurance and Medicare availability.   Again, there is no allegation that the plaintiff was acting as the insurance agent of the defendants, or their father, retained for the purpose of analyzing Coughlin's insurance needs and costs.   Instead, the defendants seek to impose liability on the plaintiff for failing to give such advice merely based on the plaintiff's status as a nursing home.

Although intentional silence may constitute actionable fraud, Dockter v. Slowik, 91 Conn.App. 448, 458 (2005);  and one who supplies incorrect information for the guidance of others in a commercial setting may be held liable under the doctrine of negligent misrepresentation, Hull v. Fonck, 122 Conn.App. 286, 289–90 (2010);  the court's research discloses no caselaw where a party incurred liability for a negligent nondisclosure, except where a fiduciary duty arose.

On the contrary, our Supreme Court has held that “there generally is no duty that obligates one party to aid or protect another party.”  Ryan Transportation v. M & G Associates, 266 Conn. 520, 526 (2003).   In that case, a tenant, whose premises were destroyed by arson, sought damages in negligence from a cotenant for failing to alert the plaintiff of an earlier arson attempt.   The Supreme Court rejected this nondisclosure as a basis for a cause of action in negligence, Id., 529.   There is no actionable negligence without cognizable duty of care, Id., 525.   Absent a special relationship of custody or control, there is no duty to protect another, Id., 526.

The first count of the revised counterclaim is stricken.

Statutory Negligence

The defendants set forth a claim of statutory negligence against the plaintiffs, in the second count of their counterclaim, based on General Statutes § 19a–550 in conjunction with General Statutes § 19a–550a.   Assuming the factual allegations of this count to be true, those allegations fail to present a valid claim for statutory negligence.   The motion to strike is granted as to this count.

Statutory negligence, or negligence per se, superimposes a legislatively prescribed standard of conduct if the predicate circumstances exist.   Staudinger v. Barrett, 208 Conn. 94, 101 (1988).   Statutory negligence is established merely by proving a violation of the statutory rule plus causation.  Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178 (1981).

Two prerequisites pertain before the doctrine of negligence per se arises.   Gore v. People's Savings Bank, 35 Conn.App. 126, 130 (1994).   First, the claimant must fall within the protected class.  Coughlin v. Peters, 153 Conn. 99, 101 (1965).   Second, the injury sustained is of the type the legislation was designed to prevent.  Toomey v. Dannaher, 161 Conn. 204, 212 (1971).

Section 19a–550a imposes on every “hospital” the duty to notify, in writing, a patient's representative or guardian of Medicare conditions of participation.   Under General Statutes § 19a–490(b), however, a “hospital” is defined, for purposes of § 19a–550a, as distinct from a nursing home or residential care home, § 19a–490(c).  Thus, § 19a–550a is inapplicable to the plaintiff in this case.

Recklessness

The third count of the revised counterclaim attempts to set forth a claim of recklessness based on the same conduct alleged in the negligence counts.   Labeling negligent conduct as recklessness is insufficient to state a valid cause of action for reckless conduct.  Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007).

Reckless misconduct implies a conscious disregard of a high risk, such as embarking on a particularly dangerous course of action after actual warning.   Brock v. Waldron, 127 Conn. 79, 83–84 (1940).   Recklessness involves ignoring a perceived risk, Sheiman v. LaFayette Bank and Trust Co, 4 Conn.App. 39, 45 (1985);  or egregious conduct that includes an extreme departure from ordinary care and where danger is apparent, Dubay v. Irish, 207 Conn. 518, 533 (1988).   A reckless actor is one who recognizes a substantial risk of harm to others and consciously chooses to act despite such knowledge, Mooney v. Wabrek, 129 Conn. 302, 388 (1942).

The third count is devoid of any factual allegations supporting recklessness.   The motion to strike is granted as to this count, also.

Sferrazza

Sferrazza, Samuel J., J.