Roscoe v. Elim Park Baptist Home, Inc.

• Decision Date: 22 December 2015
• Docket Number: NNHCV146049541S
• Court: Connecticut Superior Court
• Parties: James Roscoe, Executor of the Estate of John Roscoe et al. v. Elim Park Baptist Home, Inc

James Roscoe, Executor of the Estate of John Roscoe et al. v. Elim Park Baptist Home, Inc

No. NNHCV146049541S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

December 22, 2015

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#109)

Hon Matthew E. Frechette, J.

The instant matter concerns claims brought by a decedent's executor and widow against a Continuing Care Retirement Community (CCRC). This action was commenced on August 15 2014 by service of process on the defendant, Elim Park Baptist Home, Inc. In an eight-count amended complaint, dated January 8, 2015, the plaintiffs, James Roscoe as executor of the estate of John Roscoe, and Geraldine Perzanoski, allege the following facts. On April 4, 2002, the decedent, John Roscoe, contracted with the defendant to be provided with a residence for the rest of his natural life. The contract gave the decedent access to the residence unit and the defendant's services in exchange for an entrance fee and subsequent monthly payments. A portion of the entrance fee was held in an " Entrance Fee Refund Account, " which was to be paid to the decedent's estate upon his death, with the interest earned being paid to the defendant.

The decedent married Perzanoski on August 24, 2012. Following the marriage, the decedent became concerned about outliving his assets and about Perzanoski's long-term financial welfare. Due to his financial concerns, the decedent experienced a strong desire to obtain more liquid assets.

During the summer of 2012, Carl Jahrstorfer, the defendant's director of planned giving, made various presentations to the decedent in order to persuade him to make a gift to the defendant. Based on those conversations, Jahrstorfer, as an agent and employee of the defendant, offered the decedent an agreement whereby the defendant would permit the decedent to transfer all of the assets in his Entrance Fee Refund Account as follows: $41, 181.50 to be donated to the defendant as a gift; $41, 182 to be received by the decedent as a cash payout; and $41, 181.50 to be given to the defendant as a charitable gift annuity, whereby the defendant, for the life of the decedent and Perzanoski, would pay to either of them $219.64 per month.

At all times pertinent, based on financial disclosure forms that the decedent provided to the defendant at the defendant's request, the defendant knew or should have known that the decedent and Perzanoski's income did not cover all of their expenses, and that the decedent experienced significant health problems. Moreover, the defendant knew or should have known the various tax and financial planning issues involved with and caused by annuities, especially with respect to Medicaid eligibility.

Nevertheless the defendant did not make any attempt to analyze or understand the decedent's or Perzanoski's finances or to determine whether an annuity was appropriate for them. In persuading the decedent to enter into the agreement, the defendant represented that the annuity was a far more valuable product than it actually was. These representations were based on factual predicates that the defendant knew or should have known to be untrue. Furthermore, the defendant informed the decedent that he would receive " important benefits" with explaining what those benefits were, and that the agreement was a " good deal" for the decedent and Perzanoski, despite knowing that the factual basis for those statements was untrue.

The plaintiffs further allege that the annuity was unsound in ways including but not limited to the following: the annuity generated more taxable income than had been represented to the decedent; the charitable deduction that would be available was of little value due to the decedent's tax bracket; the annuity caused the decedent and Perzanoski to become ineligible for Medicaid, and/or put Perzanoski at risk of receiving a penalty if she applied for Medicaid; and the annuity was not actuarially sound. Ultimately, on September 30, 2012, the decedent entered into the agreement with the defendant.

The plaintiffs' eight-count amended complaint sounds in negligence, negligent representation, recklessness, breach of fiduciary duty, fraudulent misrepresentation, civil theft tortious interference with inheritance, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq. On May 20, 2015, the defendant filed a motion to strike the amended complaint in its entirety, along with a supporting memorandum of law. On June 30, 2015, the plaintiffs filed a brief in opposition to the motion to strike, to which the defendant filed a reply on July 21, 2015.

Argument was heard at the short calendar on September 21, 2015.

DISCUSSION

" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . 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." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

I NEGLIGENCE AND RECKLESSNESS

In support of striking Counts One and Count Three, the defendant argues that it does not owe a duty of care to protect the financial well-being of its residents, such that the duty-based claims of negligence and recklessness must be stricken. In opposition, the plaintiffs contend that, a duty of reasonable care arose here because the defendant undertook to advise the decedent concerning his finances.

" To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty . . . The existence of a duty is a question of law . . . Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand . . . [A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." (Citation omitted; internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698-99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007). " [T]here generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another." (Citation omitted) Ryan Transp., Inc. v. M & G Assocs., 266 Conn. 520, 526, 832 A.2d 1180 (2003).

Although a retirement community may, in some respects, provide care and support for its residents, that relationship does not create a common-law duty of care with respect to providing financial or insurance advice to residents. See Riverside Healthcare Center, Inc. v. Romaniello, Superior Court, judicial district of Tolland, Docket No. CV-10-6001234-S (May 17, 2011, Sferrazza, J.) (51 Conn. L. Rptr. 603). Indeed, no such duty arose here. Thus, as a matter of law, there is no duty of care supporting the plaintiffs' negligence and recklessness claims. The defendant's motion to strike is granted as to Count One and Count Three.

II FIDUCIARY DUTY

With respect to Count Four, the defendant argues that no fiduciary relationship existed between the defendant and the decedent. In opposition, the plaintiffs argue that a fiduciary relationship arose because of the degree to which the decedent was dependent on the defendant in entering the agreement.

" [S]ome actors are per se fiduciaries by nature of the functions they perform. These include agents, partners lawyers, directors, trustees, executors, receivers, bailees and guardians . . . Beyond these per se categories, however a flexible approach determines the existence of a fiduciary duty, which allows the law to adapt to evolving situations wherein recognizing a fiduciary duty might be appropriate . . . This court has instructed that, [a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him . . . With these principles in mind, we have recognized that not all business relationships implicate the duty of a fiduciary." (Citations omitted; internal quotation marks...