Doe v. Marselle

• Decision Date: 04 July 1995
• Docket Number: No. 13338,13338
• Parties: Jane DOE v. Doris MARSELLE et al.
• Court: Connecticut Court of Appeals

Page 871

660 A.2d 871

38 Conn.App. 360

Jane DOE v. Doris MARSELLE et al.

No. 13338.

Appellate Court of Connecticut.

Argued March 17, 1995.

Decided July 4, 1995.

Susan Garten, with whom was Eileen McGann and, on the brief, Vaughan Finn, for appellant (plaintiff).

Andrew J. O'Keefe, with whom was Maureen Sullivan Dinnan, for appellee (named defendant).

Before EDWARD Y. O'CONNELL, FOTI and LAVERY, JJ.

EDWARD Y. O'CONNELL, Judge.

The plaintiff appeals from the judgment rendered following the trial court's granting of the defendant Dionisio Flores' motion to strike the plaintiff's second amended complaint. The plaintiff claims that the trial court (1) improperly construed the "wilful" requirement of GENERAL STATUTES § 19A-590, (2)¹ improperly held that General Statutes § 19a-581 et seq. is the exclusive remedy for unauthorized disclosure of confidential HIV-related information so as to exclude, inter alia, the plaintiff's negligence claims, and (3) improperly held that the Connecticut Unfair Trade Practices Act (CUTPA) did not apply to the alleged unauthorized disclosure in this case. We affirm the judgment of the trial court.

The plaintiff, Jane Doe, who is pursuing this case under a fictitious name with the court's permission, was a patient of the defendant Flores, a surgeon. The named defendant, Doris Marselle, was a surgical assistant in Flores' employ. ² In connection with gallbladder surgery, the plaintiff disclosed to Flores that she was infected with the human immunodeficiency virus (HIV).

After commencing the action, the plaintiff filed an amended complaint alleging that Flores and Marselle disclosed, in violation of the confidentiality requirements of General Statutes §§ 19a-581 through 19a-592, her status as a person infected with the HIV virus. Flores moved to strike the counts pertaining to him on the ground that the complaint did not allege a wilful violation of the statute on his part. This motion to strike was granted by agreement of the parties.

The plaintiff then repleaded by filing a second amended complaint to which Flores objected on the grounds that the plaintiff still had not pleaded wilful conduct by Flores. The court granted the objection on the ground that the deficiency of the first amended complaint, i.e., failure to plead wilful conduct, had not been corrected. The plaintiff did not replead but instead moved for judgment in Flores's favor so that she could appeal. The counts against Marselle are not involved in this appeal. We affirm the trial court's judgment.

I

As a threshold matter we must determine the effect of the "objection" filed by Flores. "When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise; Royce v. Westport, [183 Conn. 177, 180-81, 439 A.2d 298 (1981) ]; or a second motion to strike. See Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 263-64, 259 A.2d 598 (1969). 'The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified.' Royce v. Westport, supra, 180. Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete ' " 'otherwise improper allegations' " ' from a complaint. Id. The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted. Amore v. Frankel, 228 Conn. 358, 372, 636 A.2d 786 (1994).

"Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken. See Royce v. Westport, supra, 183 Conn. at 180, 439 A.2d 298; Good Humor Corp. v. Ricciuti, [160 Conn. 133, 135, 273 A.2d 886 (1970) ]; Jensen v. Nationwide Mutual Ins. Co., [158 Conn. 251, 264, 259 A.2d 598 (1969) ]. If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading." P & L Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 50, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994).

Here, however, the defendant did not file either a request to revise or a motion to strike but instead filed an "objection." An objection to a complaint is not a pleading allowed in our rule of practice. See Practice Book § 112. The trial court stated that it would be treated as a request to revise or a motion to strike. The parties have treated the objection as a motion to strike, and we will do likewise. See Crozier v. Zaboori, 14 Conn.App. 457, 463, 541 A.2d 531 (1988).

In reviewing a trial court's ruling on a motion to strike, we accept as true all facts that are well pleaded and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 779-80, 629 A.2d 357 (1993). Both parties ask us to rely on Flores' deposition in determining whether he was aware of the provisions of § 19a-590. We are limited, however, to a consideration of the facts alleged in the complaint. A "speaking" motion to strike (one imparting facts outside the pleadings) will not be granted. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Bulkley v. Norwich & W.R. Co., 81 Conn. 284, 286, 70 A. 1021 (1908). Thus, we will not consult Flores' deposition.

We must next determine whether the second amended complaint materially changed the plaintiff's allegations or merely reiterated claims previously disposed of by the trial court. If the second amended complaint is not materially different from the first amended complaint, the plaintiff will have waived her right to appeal the granting of the second motion to strike. P & L Properties, Inc. v. Schnip Development Corp., supra, 35 Conn.App. at 51, 643 A.2d 1302. The defendant argues that because both complaints were stricken for the reason that they failed to allege wilful conduct on Flores' part, the rule of P & L Properties v. Schnip, supra, at 51, 643 A.2d 1302, applies, and we should decline appellate review.

The trial court is correct that the claimed deficiency in each complaint is a failure to allege wilful conduct. The complaints are not, however, otherwise identical. The plaintiff has not refiled the same or substantially similar allegations as those that have already been stricken. Here, the first amended complaint was bereft of any allegations that by any stretch of legal imagination could be construed as alleging wilful conduct. The absence of such allegations was so obvious that the plaintiff stipulated that her complaint could be stricken.

Despite having been alerted to the defect in her complaint, the plaintiff inexplicably failed to include the word "wilful" in her next complaint. Despite this inexplicable continued absence of the word wilful, her next pleading contained additional language with which she argues that wilful conduct may be inferred.

We are persuaded that the plaintiff has not waived her right to appeal but has made a good faith effort to file a complaint that states a cause of action. P & L Properties v. Schnip Development Corp., supra, 35 Conn.App. 46, 643 A.2d 1302, is inapposite. Thus, we must consider the merits of the plaintiff's argument that she has pleaded wilful conduct by Flores.

II

This is a case of first impression, in which we are asked to construe Public Acts 1989, No. 89-246, the "Act Concerning Aids Related Testing, Medical Information and Confidentiality." General Statutes §§ 19a-581 through 19a-592. We focus on the statute that creates a cause of action against "any person ... who wilfully violates any provision of this chapter." (Emphasis added.) General Statutes § 19a-590. The first issue before us is whether the plaintiff has alleged that Flores wilfully violated § 19a-583, ³ which, with exceptions not relevant here, prohibits disclosure of HIV-related information.

General Statutes § 19a-590 does not create a cause of action for all violations of the statute. It expressly creates a claim solely for wilful violations. The first amended complaint was stricken by agreement because it lacked an allegation of wilfulness and, therefore, did not state a cause of action. Although neither complaint expressly used the word wilful, the plaintiff claims that the second amended complaint contains allegations from which the trial court should have concluded that she was pleading wilful conduct on Flores' part. The plaintiff specifically relies on paragraph sixteen of the second amended complaint for her claim that she has alleged wilful conduct. Paragraph sixteen states: "After her conversation with Ms. Doe, Ms. Marselle consulted Dr. Flores concerning her intention to disclose Ms. Doe's HIV status to Ms. Marselle's sons whom she knew to be illegal drug users and acquaintances of friends of Ms. Doe."

The plaintiff also relies, albeit to a lesser extent, on paragraph seventeen, which states: "At no time did Dr. Flores inform defendant Marselle of the statutory prohibition against releasing any information which would identify Ms. Doe as HIV positive. In fact, Dr. Flores affirmatively authorized Ms. Marselle's illegal disclosure, with the sole proviso that Ms. Doe's actual name not be used in identifying her."

The relevant portion of § 19a-590 provides: "Any person ... who wilfully violates any provision of this chapter shall be liable in a private cause of action...." The plaintiff argues that "wilful" is a word of many meanings and urges that we accept the definition "intentionally" as opposed to "accidentally." She cites cases from other jurisdictions and three Connecticut criminal cases in support of this view.

The three Connecticut criminal cases limit the definitions of wilful therein to the criminal statutes being cons...