Connecticut Podiatric v. Health Net, No. X01 CV05-4005900S.

• Decision Date: 01 February 2006
• Docket Number: No. X01 CV05-4005900S.
• Citation: 892 A.2d 1046,49 Conn.Sup. 462
• Court: Connecticut Superior Court
• Parties: CONNECTICUT PODIATRIC MEDICAL ASSOCIATION, et al. v. HEALTH NET OF CONNECTICUT, INC.

892 A.2d 1046

49 Conn.Sup. 462

CONNECTICUT PODIATRIC MEDICAL ASSOCIATION, et al. v. HEALTH NET OF CONNECTICUT, INC.

No. X01 CV05-4005900S.

Superior Court of Connecticut, Complex Litigation Docket at Waterbury.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Murtha Cullina, LLP, Hartford, for the plaintiffs.

Robinson & Cole, LLP, Hartford, for the defendant.

SHEEDY, J.

The named plaintiff, Connecticut Podiatric Medical Association (the association) and three individual plaintiffs, podiatrists Jeffrey F. Yale, Anthony R. Iorio and R. Daniel Davis, have filed a class action complaint against the defendant,¹ Health Net of Connecticut, Inc. (Health Net), in which it is alleged that the defendant reimbursed the plaintiffs at lower rates than it reimbursed medical doctors for the same services. Yale, Iorio, and Davis are individual podiatrists who claim to have received insufficient reimbursement; the association is a professional association comprised of just such individual podiatrists as the three named practitioners who bring the action individually and on behalf of a class of others similarly situated. The governing complaint is the revised class action complaint of July 13, 2005. It is awkwardly constructed in that it is brought in two counts, each of which asserts a violation of the Connecticut Unfair Trade Practices Act (CUTPA). Count one alleges that, in unfairly discriminating against these individual plaintiffs and the named plaintiff, the defendant violated both CUTPA and the Connecticut Unfair Insurance Practices Act (CUIPA). Count two asserts, in its caption, to be a straight CUTPA claim; yet, reference is subsequently made in that count to a violation of CUIPA. The plaintiffs seek money damages and injunctive relief.

The defendant has filed a motion to dismiss all claims for monetary relief asserted by the named plaintiff on the ground that it lacks standing to pursue a claim for economic damages on behalf of its members. The named plaintiff does not, in its objection, address the substantive merits of the defendant's claim but argues instead: (1) The present motion is not the proper procedural vehicle to attack a complaint's prayer for relief; and (2) The defendant has, under Practice Book §§ 10-6 and 10-7, waived its right to file a motion to dismiss because it earlier filed a request to revise. Both parties have submitted supporting memoranda and neither has requested oral argument, thus consenting to the court's adjudication on the papers.

APPLICABLE LAW

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991); Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "The plaintiff bears the burden of proving subject matter jurisdiction . . ." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763, 741 A.2d 956 (1999).

"[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983).

ADJUDICATION

In its revised complaint, the named plaintiff clearly claims representational standing. "The [association] brings this action in its representational capacity on behalf of its members." It does not— and cannot—dispute the defendant's claim in that regard. It has chosen not to address that claim in its objection. Regarding representational standing, our Supreme Court, in Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 464, 673 A.2d 484 (1996), announced its adoption of the federal standard as enunciated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). That standard provides that an association has standing to bring suit on behalf of its members when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id. (Emphasis added.) Assuming, arguendo, that the first two prongs of the standard are satisfied, the defendant asserts that the third prong cannot be satisfied—and the court agrees. See Rent Stabilization Assn. v. Dinkins, 5 F.3d 591, 596 (2d. Cir.1993), citing Hunt v. Washington State Apple Advertising Commission, supra, at 343, 97 S.Ct. 2434. The plaintiffs here seek money damages and injunctive relief. With regard to the claim for prospective relief, "it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the named plaintiff actually injured." Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Our Supreme Court has said that the issue of standing may be decided by inspecting the allegations of the complaint and determining whether they are facially sufficient to state a claim based either on direct injury to the named plaintiff or injury to its members. Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616-17, 508 A.2d 743 (1986). There, a dismissal for lack of standing was reversed because the complaint's allegations were found sufficient to confer standing. There, however, the only relief sought was declaratory relief. The court went on to say: "Because money damages are not sought for alleged injuries to the individual members, proof relating solely to the variant experiences. . . will not be necessary." Id., at 617, 508 A.2d 743. While it is so that, when considering the issue of standing raised by a motion to dismiss, the trial court must accept as true the factual allegations of the complaint; Warth v. Seldin, supra, at 501, 95 S.Ct. 2197; Ganim v. Smith & Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001); the allegation that the association has representational standing is a legal conclusion, the truth of which is discredited when one considers whether, as to the monetary relief sought, the participation of the individual member podiatrists is required.

In the present case, proof of the alleged unfair trade practices will, as the defendant argues, require proof of actions that the defendant took as to each class member, the effect of those actions on each such class member, and the number of instances in which the class member claims to have been under reimbursed so as to permit individual damage calculations. The named plaintiff, unlike the individual podiatrist members of the class, is not a provider of podiatric services. It is a professional organization "composed of podiatrists who are doctors of podiatric medicine and practitioners of the healing arts licensed to practice in the State of Connecticut." It purports to represent a class of every Connecticut podiatrist participating in the defendant's network. It is relevant that the named plaintiff does not assert any claims on its own behalf—but solely in its representational capacity on behalf of its members. The solitary inquiry then is whether the named plaintiff's claim for money damages on behalf of its members will require the direct participation of its podiatric members. Its statement that it will not is unsupported by any specific facts in support of that conclusory claim. In a recent reversal of this court's certification of a class, our Supreme Court held each class member would need to show individualized proof of harm to recover under CUTPA and that certification of the class was error because "`individualized inquiries would overwhelm any common issues surrounding the [defendant's challenged policy.]'" Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 338, 880 A.2d 106 (2005).²

The named plaintiff, in choosing not to address the substantive claims of the defendant in this motion to dismiss, has waived the right to do so later. This court does not know how the monetary relief the named plaintiff seeks on behalf of its members can be calculated and awarded without the individual participation of its members. Both the claim asserted and the relief it seeks requires the same and the named plaintiff thus lacks representational standing under the third prong of Hunt and Gay & Lesbian Law Students Assn., to assert a claim for monetary relief.

The court also finds unpersuasive the two technical arguments advanced by the named plaintiff in its objection to the granting of this motion. The named plaintiff first argues that this motion is not the correct procedural vehicle to attack a prayer for relief and that, under "Practice Book § 10-35(a)(2)," that vehicle is a motion to strike.³ Practice Book § 10-39(a)(...