III v. Frank Fortunati (2011)

MEMORANDUM OF DECISION IN RE MOTION TO STRIKE (# 136)

The defendant moves to strike counts two, four, five, six, seven, specific paragraphs of the counts and the corresponding prayers for relief of the plaintiffs' revised complaint.   The defendant moves to strike counts two and six on the ground that the plaintiffs have failed to state a valid cause of action for recklessness.   The defendant moves to strike counts four and five on the grounds that the plaintiffs have not stated legally sufficient causes of action for breach of contract and bad faith and that the counts merely reiterate medical negligence claims that the court previously dismissed.   The defendant moves to strike count seven, which sounds in slander, on the ground that the defendant was privileged to publish the statement that is the basis of the claim.   The defendant moves to strike paragraphs 35(b), (c), (d), (l) and (m) of count one, paragraphs 39(b), (c), (d), (l) and (m) of count two, corresponding paragraphs of count three, paragraphs 59(a), (b) and (c) of count five and paragraphs 63(a), (b) and (c) of count six, which the defendant alleges sound in loss of parental and filial consortium, on the ground that Connecticut does not recognize loss of consortium claims outside of the spousal context.   The defendant also moves to strike the corresponding prayers for relief.

I

FACTS

On August 19, 2009, the plaintiff, Kirsten Shaw Mettler, II (Kirk Mettler), commenced this action on his own behalf and on behalf of his minor daughter, Kirsten Shaw Mettler, III (Kirsten Mettler), by service of process upon the defendant, Frank Fortunati, Jr., a psychiatrist.¹  On January 14, 2011, the plaintiffs filed a revised complaint in which they allege the following facts.   On April 28, 2006, Kirk Mettler was arrested for domestic violence.   Following his arrest, the Connecticut Department of Children and Families visited the Mettler residence.   During the visit, Kirsten Mettler reported possible inappropriate contact by Kirk Mettler.   The Department of Children and Families then arranged for the Yale Child Sexual Abuse Clinic to evaluate Kirsten Mettler.   On May 2, 2006, Kirsten Mettler's mother filed for an ex parte restraining order to prevent Kirk Mettler from having any contact with Kirsten Mettler.   During the restraining order hearing on May 16, 2006, Kirk Mettler and Kirsten Mettler's mother stipulated that they would hire the defendant to conduct a psychiatric evaluation of Kirsten Mettler following the evaluations of the Department of Children and Families and the Yale Child Sexual Abuse Clinic.   On May 22, 2006, and May 30, 2006, the defendant conducted videotaped interviews of Kirsten Mettler and her mother.   The defendant did not interview Kirk Mettler.   In mid June 2006, the defendant verbally reported to the Department of Children and Families that unlawful sexual contact had occurred between Kirk and Kirsten Mettler.   Due to the defendant's verbal report, the Department of Children and Families made a formal substantiation of sexual abuse against Kirk Mettler.   On July 13, 2006, Kirk Mettler and Kirsten Mettler's mother filed for dissolution of marriage.   On October 10, 2006, the defendant submitted a written report to the Department of Children and Families that stated that the sexual abuse allegations could not be confirmed.

Following the May 16, 2006 stipulation, Kirk Mettler had supervised visits with Kirsten Mettler twice a week for a total of seven hours each week.   On March 2, 2007, Kirk Mettler filed a motion to increase visitation.   Before a hearing on the motion was held, Kirsten Mettler's mother arranged for the defendant to evaluate Kirsten Mettler again based upon the same prior allegations of sexual abuse.   The defendant interviewed Kirsten Mettler on May 28, 2007, and June 4, 2007, without Kirk Mettler's knowledge or permission.   On December 13, 2007, Kirk Mettler's supervised visits with Kirsten Mettler were increased to three visits per week.

On April 22, 2009, the dissolution of marriage proceeding was concluded.   Kirk Mettler's three supervised visits per week with Kirsten Mettler continued until June 12, 2009.   During that time, Kirsten Mettler's mother “encouraged and shaped the false allegations of inappropriate conduct” against Kirk Mettler.

The original complaint included allegations of negligence and negligent infliction of emotional distress as to Kirk Mettler.   On August 19, 2010, the court granted the defendant's motion to dismiss these counts on the ground that they sounded in medical negligence but a certificate of good faith had not been provided pursuant to General Statutes § 52–190a.

The revised complaint is comprised of seven counts.   Counts one and three are brought by Kirsten Mettler and sound in negligence and negligent infliction of emotional distress.   Counts two and six are brought by Kirsten Mettler and Kirk Mettler, respectively, and sound in recklessness.   Counts four and five are brought by Kirk Mettler and sound in breach of contract and bad faith.   Count seven is brought by Kirk Mettler and sounds in slander.

On February 10, 2011, the defendant filed a motion to strike and a memorandum of law in support.   The defendant moves to strike counts two and six on the ground that the plaintiffs have failed to state a valid cause of action for recklessness.   The defendant moves to strike counts four and five on the grounds that the plaintiffs have not stated legally sufficient causes of action for breach of contract and bad faith and that the counts merely reiterate the medical negligence claims that the court previously dismissed.   The defendant moves to strike count seven, which sounds in slander, on the ground that the defendant was privileged to publish the oral report to the Department of Children and Families.   The defendant moves to strike paragraphs 35(b), (c), (d), (l) and (m) of count one, paragraphs 39(b), (c), (d), (l) and (m) of count two, the corresponding paragraphs of count three, paragraphs 59(a), (b) and (c) of count five and paragraphs 63(a), (b) and (c) of count six, which the defendant alleges sound in loss of parental and filial consortium, on the ground that Connecticut does not recognize loss of consortium claims outside of the spousal context.   The defendant also moves to strike the corresponding prayers for relief.

The plaintiffs in turn filed an objection to the defendant's motion to strike and a memorandum of law in support on August 17, 2011.   In response, the defendant filed a reply to the plaintiff's objection and a memorandum of law in support on September 23, 2011.   The matter was heard at the short calendar on September 26, 2011.

II

DISCUSSIONAMotion to Strike Standard

“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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

B

Recklessness

The defendant moves to strike counts two and six on the ground that the plaintiffs have failed to state a valid cause of action for recklessness.   The defendant specifically alleges that the facts stated in the recklessness counts are identical to those in the negligence claim in count one and that the plaintiffs merely inserted legally conclusory language to form the recklessness counts.   The defendant also contends that the plaintiffs' allegations in counts two and six sound in medical negligence and do not constitute “ ‘an extreme departure from ordinary care’ in a situation where a high degree of danger is apparent.”

The plaintiffs counter that the defendant's conduct in “completely ignoring” Kirk Mettler was an extreme departure from ordinary care and that a situation involving a child's safety, particularly one concerning sexual abuse allegations, is a situation where a high degree of danger is apparent.   The plaintiffs further argue that the defendant was aware of the danger involved and also knew that his verbal report to the Department of Children and Families that unlawful sexual contact had occurred was unsupported.   The plaintiffs contend that although they rely on the same facts in their negligence and recklessness counts, the allegations in the recklessness counts show that the defendant possessed the requisite state of mind for reckless misconduct.

“Reckless misconduct refers to highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent ․ Recklessness, therefore, is more than negligence and also is more than gross negligence.”  (Citations omitted;  internal quotation marks omitted.)  Rubel v. Wainwright, 86 Conn.App. 728, 740–41, 862 A.2d 863 (2005).

“Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.”  Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003).   Nonetheless, “[a] plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence.”  Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987).  “Merely using the term ‘recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law.”   Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312 (2007).

In the present case, the plaintiffs have added language to the negligence allegations in count one of the revised complaint to form the recklessness allegations in counts two and six.   In count two, the plaintiffs added that the defendant acted “knowingly, wantonly and/or with reckless disregard and indifference to the consequences of his acts” to the allegation in count one that the defendant breached the standard of care owed to Kirsten Mettler.   Similarly, the plaintiffs allege in count six that the defendant acted “knowingly, wantonly and/or with reckless disregard and indifference to the consequences of his acts.”   The plaintiffs also reiterated the allegation in count one that the defendant failed to conduct a complete evaluation of Kirsten Mettler because the defendant did not interview Kirk Mettler and further stated “despite knowing the proper method for conducting a complete psychiatric evaluation.”   In addition, the plaintiffs added “despite the fact that his interviews of [Kirsten] were inconclusive” to the plaintiff's allegation in count one that the defendant verbally reported to the Department of Children and Families that illegal sexual contact had occurred between Kirk and Kirsten Mettler.   The plaintiff also repeated the allegation from count one that the defendant did not obtain authorization from Kirk Mettler before conducting the second set of interviews and inserted “despite his duty to do so.”

The plaintiffs have not alleged any new facts in support of their recklessness allegations.   Rather, the plaintiffs have reiterated the negligence allegations in count one and appended additional phrases in an attempt to transform the negligence allegations into a cause of action for recklessness.   The recklessness counts sound in negligence and the additional language does not elevate the negligence allegations to a level of “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  Rubel v. Wainwright, supra, 86 Conn.App. 740.   The allegations in counts two and six are therefore legally insufficient to state a cause of action for recklessness.   Accordingly, the defendant's motion to strike counts two and six and the corresponding prayers for relief is granted.

Breach of Contract and Bad Faith

The defendant moves to strike counts four and five on the ground that the plaintiffs have not stated legally sufficient causes of action for breach of contract and bad faith.   In their revised complaint, the plaintiffs allege that because the defendant agreed to perform a psychiatric evaluation of Kirsten Mettler for a specified sum of money, an implied agreement existed between Kirk Mettler and the defendant.   The defendant argues that the plaintiffs have not alleged sufficient facts to demonstrate an actual agreement between Kirk Mettler and the defendant.   In addition, the defendant contends that Kirk Mettler and Kirsten Mettler's mother agreed to have Kirsten Mettler evaluated pursuant to a stipulation and that the defendant was not a party to the stipulation.   The defendant further argues that the breach of contract claim is based upon the same factual allegations in the medical negligence claim that the court previously dismissed and that the plaintiffs are attempting to circumvent the court's prior ruling through labeling the failed medical negligence claim as a breach of contract claim.   The defendant contends that because the plaintiffs have failed to allege a cognizable claim for breach of contract, their bad faith claim must also fail.

The plaintiffs counter that when the defendant agreed to perform the psychiatric evaluation, an implied contract was formed and that the stipulation between Kirk Mettler and Kirsten Mettler's mother provides the specific terms of the agreement.   The plaintiffs argue that the intended result of the implied contract was that the defendant would conduct a psychiatric evaluation of Kirsten Mettler.   Because the defendant only interviewed Kirsten Mettler and her mother, the plaintiffs contend that the defendant did not conduct a complete evaluation, and thus, the defendant breached the implied contract.   The plaintiffs further argue that because they have alleged facts sufficient to demonstrate the existence of an implied contract, their bad faith claim is also valid.

“Although ordinarily—indeed, in most cases—in reviewing a motion to strike, the court must take the plaintiffs allegations at face value, that rule is not absolute.   We have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis.”  Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001).   In Gazo, the court examined the contract language used in the plaintiff's complaint “to determine what the plaintiff really [sought].”  Id., 263.   The court reasoned:  “Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender ․ putting a contract tag on a tort claim will not change its essential character.”  (Citation omitted;  internal quotation marks omitted.)  Id., 263.

“It is possible [however] for a negligence claim and a contract claim to arise out of the same facts, and a breach of contract claim may be heard in the same case claiming medical malpractice ․ Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint ․ Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Citations omitted;  internal quotation marks omitted.)  Rosato v. Mascardo, 82 Conn.App. 396, 410–11, 844 A.2d 893 (2004).  “When determining whether a complaint sets forth an independent breach of contract claim or merely dresses a malpractice claim in contract language, the court examines the pleadings to ascertain whether the breach of contract alleged is based on substandard medical care or exists irrespective of adherence to or deviation from the standard of care.”   Ferraro v. Mariner Health, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 04 4001418 (August 3, 2005, Sferrazza, J.).

In the present case, the plaintiffs allege that the “defendant contacted and/or was contacted by, [Kirk Mettler], and/or his legal representative to discuss the details of the evaluation and payment therefor” and that Kirk Mettler's “legal representative agreed with the mother's attorney that he would discuss the details of the psychiatric evaluation and payment therefor and relay the information back to the plaintiff, Kirk's attorney.”   The plaintiffs further allege that the defendant interviewed Kirsten Mettler “with the expectation that he would be compensated by the plaintiff, Kirk, and/or the mother” and that the defendant interviewed Kirsten Mettler “at the direction of either the plaintiff, Kirk, and/or the mother and was thereafter compensated for his services.”   Although the plaintiffs argue that this language sufficiently indicates the existence of an implied agreement between the defendant and Kirk Mettler, the language is vague and does not definitively state that Kirk Mettler had any direct contact with the defendant.   The complaint therefore does not sufficiently allege an implied contract between Kirk Mettler and the defendant.

In addition, the plaintiffs' breach of contract claim is an attempt to revive the plaintiffs' medical negligence claims that were previously dismissed by the court.   In count four of the revised complaint, the plaintiffs allege that the defendant breached his implied agreement with Kirk Mettler by:  not performing a complete psychiatric evaluation of Kirsten Mettler, failing “to act fairly and impartially” in not interviewing Kirk Mettler, being influenced by the legal counsel and psychiatrist of Kirsten Mettler's mother and reporting that inappropriate sexual contact had occurred when the defendant's findings were inconclusive.   These claims all enter around the defendant's conduct as a psychiatrist and do not result from an actual contractual relationship between Kirk Mettler and the defendant.   Accordingly, count four of the complaint sounds in medical negligence and represents an apparent attempt to replead the medical negligence claim that the court previously dismissed.   Thus, the plaintiffs have failed to allege a legally sufficient cause of action for breach of contract, and the defendant's motion to strike count four of the revised complaint and the corresponding prayer for relief is therefore granted.   Furthermore, because a valid contract is a prerequisite to a cognizable claim for a breach of the implied covenant of good faith and fair dealing, the defendant's motion to strike count five and the corresponding prayer for relief is also granted.

D

Slander

The defendant moves to strike count seven, which sounds in slander, on the ground that he was absolutely privileged to publish any statements he made to the Department of Children and Families.   The plaintiffs counter that because the defendant was privately hired and was not commissioned by the Department of Children and Families to conduct the psychiatric evaluation of Kirsten Mettler, the defendant's statement was not privileged.   The plaintiffs further argue that although the defendant's statement as a mandated reporter would normally be privileged, he acted in bad faith, and his report therefore was not privileged.

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Citations omitted;  internal quotation marks omitted.)  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).

The defendant specifically argues that any statements he made to the Department of Children and Families occurred in the course of a quasi-judicial proceeding and were therefore absolutely privileged.  “The effect of an absolute privilege in a defamation action ․ is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously.”  Morgan v. Bubar, 115 Conn.App. 603, 613, 975 A.2d 59 (2009).   While the defendant, as a psychiatrist, is a mandated reporter of suspected child abuse pursuant to General Statutes § 17a–101b, mandated reporters are not afforded an absolute privilege.  General Statutes § 17a–101e(b) provides:  “Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a–101a to 17a–101d, inclusive, and 17a–103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect.”   Accordingly, the defendant's immunity is contingent upon his acting in good faith and is therefore a qualified, not an absolute, privilege.

“In common usage, the term good faith has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation ․ It has been well defined as meaning [a]n honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious ․ It is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives ․ Whether good faith exists is a question of fact to be determined from all the circumstances.”   Bhatia v. Debek, 287 Conn. 397, 412–13, 948 A.2d 1009 (2008).

In the present case, the plaintiffs allege in their revised complaint that “[d]espite the defendant's verbal report to [the Department of Children and Families] that he believed unlawful sexual contact occurred between [Kirsten] and Kirk, he provided a written report ․ stating that based upon his interviews with [Kirsten] that sexual abuse could not be confirmed.”   In count seven, the plaintiffs further allege that the verbal report to the Department of Children and Families was “false and malicious or through the exercise of due care and diligence [the defendant] should have known [the report was] false and malicious.”   When these allegations are viewed in a light most favorable to the plaintiffs, the plaintiffs have sufficiently alleged that the defendant acted in bad faith and that he was therefore not statutorily immune from civil liability.   Accordingly, the plaintiffs have alleged a cognizable claim for slander, and the defendant's motion to dismiss count seven and the corresponding prayer for relief is denied.

E

Loss of Filial and Parental Consortium

The defendant moves to strike paragraphs 35(b), (c), (d), (l) and (m) of count one, paragraphs 39(b), (c), (d), (l) and (m) of count two, the corresponding paragraphs of count three, paragraphs 59(a), (b) and (c) of count five and paragraphs 63(a), (b) and (c) of count six, which the defendant alleges sound in loss of parental and filial consortium, on the ground that Connecticut does not recognize loss of consortium claims outside of the spousal context.   The plaintiff counters that although Connecticut courts generally do not recognize claims for loss of filial and parental consortium, the Connecticut Supreme Court in Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), carved out an exception that allows for damages due to loss of filial consortium.   In Zamstein, the court reasoned:  “We find persuasive § 699 of the Restatement (Second) of Torts, which provides that ‘[o]ne who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child's parent.’  “ Id., 566.   The plaintiffs argue that the defendant's actions in having Kirk Mettler investigated by the Department of Children and Families, embarrassing and causing depression and anxiety in Kirk and Kirsten Mettler, subjecting Kirk and Kirsten Mettler to excess therapy, and exposing Kirsten Mettler “to a mother, who alienated her from her father and encouraged and shaped false allegations of inappropriate sexual conduct” satisfy the requirement of “more” under the Restatement.

The court will first address the issue of whether the defendant may strike specific paragraphs of the plaintiffs' complaint.  “[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Internal quotation marks omitted.)   Jascowski v. Ross, Superior Court, judicial district of New London, Docket No. CV 06 5000425 (March 9, 2011, Cosgrove, J.).

In the present case, the specific paragraphs that the defendant moves to strike attempt to state causes of action for loss of parental and filial consortium.   In their revised complaint, the plaintiffs allege that Kirsten Mettler suffered damages from the following:  a reduction in time spent with Kirk Mettler, a disruption in her “relationship and emotional connection” with Kirk Mettler, “present and future adverse emotional reactions to [the reduction in time spent with and disruption in her relationship with Kirk Mettler] including but not limited to depression, anxiety, sleep problems, insecurity, lack of trust, arid feelings of victimization,” the inability to take vacations with Kirk Mettler and the inability to visit with her extended family.   In paragraphs 59(a), (b) and (c) of count five and paragraphs 63(a), (b) and (c) of count six, the plaintiffs also allege that Kirk Mettler suffered damages due to the following:  a reduction in time spent with Kirsten Mettler, a disruption in Kirk Mettler's “relationship and emotional connection” with Kirsten Mettler and “the inability to care for [Kirsten Mettler].”   These paragraphs, when read together, are an attempt to allege causes of action for loss of parental and filial consortium, respectively.   The court may therefore address the defendant's motion to strike these specific paragraphs.

“The right of consortium is said to arise out of the civil contract of marriage and as such, does not extend to the parent-child relationship.”   Mahoney v. Lensink, 17 Conn.App. 130, 141, 550 A.2d 1088 (1988), aff'd in part and rev'd in part on other grounds, 213 Conn. 548, 569 A.2d 518 (1990).  “While it may be true that our appellate courts have not yet directly addressed the legal sufficiency of a claim for filial consortium, the courts are not without guidance.   In Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), our Supreme Court determined that a child cannot recover for loss of parental consortium, because ‘the balance of policy considerations fails to establish the additional justification necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with their parent.   We reach this conclusion primarily on the basis of:  the fact that recognition of the cause of action would require arbitrary limitations;  the additional economic burden that recognition would impose on the general public;  the uncertainty that recognition would yield significant social benefits;  the substantial risk of double recovery;  and the weight of judicial authority.’  Id., 484–85.   Additionally, the court noted that ‘there is nothing in reason to differentiate, as a categorical matter ․ the parent's loss of the joy and comfort of his child from that suffered by the child.’   Id., 485 n.20. Based on this rationale, the trend among the judges of the Superior Court is that ‘[l]oss of consortium claims are limited to spouses and do not extend to claims for loss of parental or filial consortium.’   “ Browne v. Kommel, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5066167 (July 14, 2009, Pavia, J.) [48 Conn. L. Rptr. 248].   Because Connecticut courts have consistently declined to recognize loss of consortium claims outside the spousal context since the Supreme Court's ruling in Zamstein, the court finds the defendant's argument that Zamstein carved out an exception to general rule to be without merit.   Accordingly, the court grants the defendant's motion to strike paragraphs 35(b), (c), (d), (l) and (m) of count one, paragraphs 39(b), (c), (d), (l) and (m) of count two, the corresponding paragraphs of count three, paragraphs 59(a), (b) and (c) of count five, paragraphs 63(a), (b) and (c) of count six and the corresponding prayers for relief of the plaintiffs' revised complaint.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike counts two, four, five, six, paragraphs 35(b), (c), (d), (l) and (m) of count one, paragraphs 39(b), (c), (d), (l) and (m) of count two, the corresponding paragraphs of count three, paragraphs 59(a), (b) and (c) of count five, paragraphs 63(a), (b) and (c) of count six and the corresponding prayers for relief of the plaintiffs' revised complaint.   The court denies the defendant's motion to strike count seven.

Brian T. Fischer, J.

FOOTNOTES

FN1. The court shall refer to Kirk and Kirsten Mettler collectively as “the plaintiffs.”.  FN1. The court shall refer to Kirk and Kirsten Mettler collectively as “the plaintiffs.”

Fischer, Brian T., J.