Richard J. Rosiak v. Paul T. Czepiga et al. (2012)

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT # 137

The plaintiff alleges he is an intended beneficiary of his father's estate and he has brought this action against the defendant Paul T. Czepiga, his father's attorney, alleging negligence, breach of fiduciary duty and intentional infliction of emotional distress.   The defendant has filed a motion for summary judgment as to all three counts, maintaining that he is entitled to judgment as matter of law.   The defendant has not submitted any affidavits or other documents to support his motion.   The plaintiff has filed numerous documents with his opposition.

As to the first count sounding in negligence, the defendant relies on Krawczyk v. Stingle, 208 Conn. 239 (1988), in that case the court stated “[a]s a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.”   The defendant conveniently overlooks the next sentence of the opinion which states “[a] number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services.”  Id. 244.   See also Stowe v. Smith, 184 Conn. 194 (1981) (Attorney alleged to have erred in the preparation of a will may be held liable to the intended beneficiary of the will under either a tort or contract theory of liability).   Here, there is a genuine issue of fact as to whether the plaintiff was an intended beneficiary of his father's estate to the extent he claims.   The defendant has submitted no evidence to rebut this conclusion.   The motion is denied as to this count.

In the second count, the plaintiff alleges that the defendant owed the plaintiff a fiduciary duty, and that the defendant breached that duty.   Although the defendant is an attorney, and the plaintiff may be a disappointed intended beneficiary, that relationship does not create a fiduciary relationship.   As to this, claim the general rule in Krawczyk v. Stingle applies.   The motion is granted as to the second count.

The third count sounds in intentional infliction of emotional distress.   The defendant argues that his actions do not constitute outrageous conduct.   The defendant suggests that his conduct was not more egregious than that experienced in the rough and tumble of everyday life.   Here, the absence of evidence from the defendant does not help his cause.   The evidence submitted by the plaintiff indicates that reasonable minds would differ as to whether the defendant's conduct is extreme and outrageous.   There is a genuine issue of material fact as to the third count, consequently, the motion is denied as to that count.

In summary, the motion for summary judgment is denied as to count one and count three and granted as to count two.

Domnarski, J.

Domnarski, Edward S., J.