Desmond v. Yale–New Haven Hosp., Inc.

• Decision Date: 11 September 2012
• Docket Number: No. 33072.,33072.
• Citation: 138 Conn.App. 93,50 A.3d 910
• Court: Connecticut Court of Appeals
• Parties: Sandhya DESMOND v. YALE–NEW HAVEN HOSPITAL, INC., et al.

138 Conn.App. 93

50 A.3d 910

Sandhya DESMOND

v.YALE–NEW HAVEN HOSPITAL, INC., et al.

No. 33072.

Appellate Court of Connecticut.

Argued Jan. 10, 2012.

Decided Sept. 11, 2012.

Eric M. Desmond, Woodbridge, for the appellant (plaintiff).

Andrew A. Cohen, New Haven, for the appellees (defendants).

GRUENDEL, LAVINE and ESPINOSA, Js.

ESPINOSA, J.

The plaintiff, Sandhya Desmond, appeals from the judgment of the trial court dismissing her complaint against the defendants, Yale–New Haven Hospital, Inc. (hospital), and Yale–New Haven Health Services, Inc., alleging workers' compensation fraud; statutory negligence; breach of contract; violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq.; and violations of her right to due process under the Connecticut constitution. The plaintiff claims that the court improperly determined that (1) it lacked jurisdiction over her claims because the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31–275 et seq., barred her from bringing an action in the Superior Court and (2) its decision dismissing her claims did not violate her right to due process under the state constitution.¹ We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. At all times relevant to this appeal, the plaintiff was an employee of the hospital. On December 30, 2004, she was injured in the course of her employment. According to the plaintiff, she suffered a spill-related fall while at work and subsequently was diagnosed with bilateral, acute posttraumatic carpal tunnel injuries. Her physicians have advised her that, absent medical treatment, she permanently will be unable to use her hands.

Subsequently, she filed a workers' compensation claim with regard to her injury, and the defendants accepted the claim. On March 6, 2008, she filed a federal action in United States District Court for the District of Connecticut, in which she alleged various claims under state law and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. On March 23, 2009, the District Court granted the defendants' motion to dismiss as to the plaintiff's state law claims, allowing the action to proceed only on her claim under the Americans with Disabilities Act.

On May 20, 2010, the plaintiff filed in the Superior Court the operative complaint in the present case. The complaint contained ten counts, alleging against each of the defendants workers' compensation fraud, statutory negligence, breach of contract,unfair and deceptive acts and practices in violation of CUTPA and delay in the delivery of benefits under the act in violation of the plaintiff's state constitutional right to due process. The complaint alleged that the defendants had made various filings with the workers' compensation commission (commission) in a bad faith and fraudulent attempt to delay treatment. The complaint alleged that these bad faith attempts to delay treatment caused the plaintiff's condition to worsen, as she did not receive necessary treatment.

On June 7, 2010, the defendants filed a motion to dismiss, alleging that the exclusivity provision of the act barred the action and that the plaintiff had failed to exhaust her administrative remedies under the act. The court granted the defendants' motion to dismiss on December 16, 2010. Relying on our Supreme Court's decision in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005), the court held that the plaintiff's claims did not allege conduct that was sufficiently egregious to remove the claims from the exclusive jurisdiction of the commission. The plaintiff filed the present appeal on January 20, 2011.

“The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011).

I

First, the plaintiff claims that the court improperly held that it lacked jurisdiction over her claims because the exclusivity provision of the act barred her from bringing an action in the Superior Court. The plaintiff argues that the court erroneously determined that its analysis was controlled by DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487, 870 A.2d 1066, and, instead, maintains that General Statutes § 31–290c establishes a civil cause of action over which the commission lacks jurisdiction. In the alternative, the plaintiff argues that, if DeOliveira does apply and actions under § 31–290c ordinarily must be brought before the commission, the court improperly held that the present case did not involve egregious conduct that warranted an exception from the general rule of exclusivity. We disagree.

General Statutes § 31–284(a) lays out the exclusivity provision of the act. It provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ... but an employer shall secure compensation for his employees as provided under this chapter.... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees ... are abolished other than rights and claims given by this chapter....” General Statutes § 31–284(a).

Section 31–290c (a) provides: “Any person or his representative who makes or attempts to make any claim for benefits, receives or attempts to receive benefits, prevents or attempts to prevent the receipt of benefits or reduces or attempts to reduce the amount of benefits under this chapter based in whole or in part upon (1) the intentional misrepresentation of any material fact including, but not limited to, the existence, time, date, place, location, circumstances or symptoms of the claimed injury or illness or (2) the intentional nondisclosure of any material fact affecting such claim or the collection of such benefits,shall be guilty of a class C felony if the amount of benefits claimed or received, including but not limited to, the value of medical services, is less than two thousand dollars, or shall be guilty of a class B felony if the amount of such benefits exceeds two thousand dollars. Such person shall also be liable for treble damages in a civil proceeding under section 52–564.” (Emphasis added.)

General Statutes § 52–564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.” “[S]tatutory theft under § 52–564 is synonymous with larceny under General Statutes § 53a–119....A person commits larceny within the meaning of ... § 53a–119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. An owner is defined, for purposes of § 53a–119, as any person who has a right to possession superior to that of a taker, obtainer or withholder.... Conversion can be distinguished from statutory theft as established by § 53a–119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Citations omitted; internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn.App. 99, 113–14, 46 A.3d 175 (2012).

Violations of § 31–290c, a criminal statute, may be prosecuted by the state's attorney, not by private individuals. See General Statutes § 31–290d (a) (“There shall be a workers' compensation fraud unit within the office of the Chief State's Attorney in the Division of Criminal Justice. The unit, under the supervision of the Chief State's Attorney, may, upon receipt of a complaint, at the request of the chairman of the Workers' Compensation Commission or on its own initiative, investigate cases of alleged fraud involving any claim for benefits, any receipt or payment of benefits, or the insurance or self-insurance of liability under sections 31–275 to 31–355a, inclusive.”). Accordingly, § 31–290c does not afford the plaintiff a private right of action. Rather, § 31–290c confers to the plaintiff the right to bring an action for statutory theft under § 52–564. See Delpier v. Connecticut Interlocal Risk Management Agency, Superior Court, judicial district of Waterbury, Docket No. CV–01–0164366, 2001 WL 1681912 (November 28, 2001)(31 Conn. L. Rptr. 97) (“[§ 31–290c], on its face, does not provide for a private right of action but rather enables a victim to bring an action under [General Statutes] § 52–564, the civil theft statute”).

In Second Injury Fund v. Lupachino, 45 Conn.App. 324, 346, 695 A.2d 1072 (1997), this court held that “[§] 31–290c is the legislative response to those who have abused or may be abusing the humanitarian purpose of the act by taking advantage of it by fraudulent means. It has ordained accomplishment of this purpose by spelling out the elements of this cause of action and by imposing liability in treble damages in a ‘civil proceeding’ under § 52–564.” Concluding that the plaintiff, the second injury fund of the treasurer of the state of Connecticut, properly had alleged a cause of action under § 52–564, this court explained: “When treble damages are sought pursuant to § 52–564, as here, this court has decided that clear and convincing proof ² of the actions alleged is required in order to assess treble damages pursuant to § 52–564.....