Opinion
No. X10 UWY-CV-06-5002587S
June 4, 2007
MEMORANDUM OF DECISION
Before the Court are motions to dismiss two apportionment complaints for lack of personal jurisdiction. The motions to dismiss were filed by the plaintiffs Karen Grasser (Grasser) and Tom Grasser. Defendant/apportionment plaintiff MidState Medical Center filed the first apportionment complaint against John J. DeBaross, M.D. on June 9, 2006. The plaintiffs filed a motion to dismiss on July 28, 2006. The second apportionment complaint against DeBaross was filed on July 7, 2006 by defendants/apportionment plaintiffs Radiology Associates, Inc., Linda Durham, M.D., Harry Hajedemos, M.D. and Michael Bisceglia, M.D. The plaintiffs filed a motion to dismiss addressed to that complaint on October 10, 2006. A hearing on the motions was held on April 23, 2007. For the reasons set forth herein, the plaintiffs' motions to dismiss are granted as to both apportionment complaints.
The following facts are not in dispute. Karen Grasser and her husband Tom Grasser reside in Wallingford, CT. While vacationing in Florida with her family Karen Grasser experienced epigastric pain requiring medical attention. On or about December 23, 2003 Grasser was taken to Lee Memorial Health Park Medical Center in Fort Meyers, Florida. After being diagnosed with cholelithiasis she underwent a laparoscopic cholecystectomy performed by the apportionment defendant John J. DeBaross, M.D. On December 25, 2003 Grasser was discharged from the Florida hospital. The following day Grasser was readmitted to the same hospital complaining of pain in her abdomen. She was discharged on December 31, 2003. Upon leaving Florida there was no further treatment by Dr. DeBaross.
Subsequently the plaintiffs returned to Connecticut. As a result of experiencing abdominal pain Grasser was seen at the emergency room of MidSate Medical Center on January 3, 2004. She was admitted to the hospital the following day. The plaintiff has brought professional negligence claims against the defendants/apportionment plaintiffs which arise out of the medical care here in Connecticut. It is these parties who have filed the apportionment complaints against DeBaross for professional negligence arising out of the care of the plaintiff in Florida described above. The motions to dismiss address these claims.
"The motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . This motion shall always be filed with a supporting memorandum of law and where appropriate, with supporting affidavits as to facts not apparent on the record" Practice Book § 10-31. "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Because a determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 568, 877 A.2d 761, (2005). "Furthermore, if a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." (Citation omitted; internal quotation marks omitted.) Ryan v. Cerullo, 82 Conn. 109, 118 (2007).
When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. The trial court must first decide whether the applicable state longarm statute authorizes the assertion of jurisdiction over the defendant. If the statutory' requirements are met, its second obligation is then to decide whether the exercise of jurisdiction over the defendant would violate constitutional principles of due process. (Citation omitted; internal quotation marks omitted.) Knipple v. Viking Communications, 236 Conn. 602, 606, 674 A.2d 426 (1996). "The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate or individual defendant that has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . ." (Citation omitted; internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 606, n. 6.
In their motions to dismiss the apportionment complaints the plaintiffs contend that the court lacks personal jurisdiction over Dr. DeBaross. They argue that the apportionment plaintiffs have not met the statutory requirements of General Statues § 52-59b to confer longarm jurisdiction inasmuch as Dr. DeBaross does not transact any business within the state; has not committed a tortious act within the state; does not own or possess any real property within the state; and does not use a computer or computer network located within the state. Plaintiffs concede that DeBaross has committed a tortious act outside the state causing injury to a person within the state but insist that the allegation without more fails to establish personal jurisdiction under the statute.
Plaintiffs also contend that to allow the defendants to apportion liability to DeBaross would be contrary to General Statute § 52-102(d) which allows the plaintiff to "plead over" against the apportionment defendant since any claim the plaintiffs could assert against DeBaross has been discharged in bankruptcy. Under General Statute § 52-102b(g) because the plaintiffs cannot "plead over" they will be unable to reallocate the uncollectible damages of DeBaross to the other defendants as otherwise permitted under C.G.S. § 52-572h(g). Because the court finds that it lacks personal jurisdiction over Dr. DeBaross under General Statute 52-59b the court does not address this argument.
I. PRACTICE BOOK COMPLIANCE
The apportionment plaintiffs first assert that the motion to dismiss is untimely. They note that adherence to the thirty days set out in Practice Book § 10-30 would allow unlimited time to file a motion to dismiss since the practice book is silent as to when a motion to dismiss must be filed if no appearance has been filed. Here, DeBaross has not filed an appearance. Apportionment plaintiffs argue that Practice Book § 10-8 should control resulting in a thirty-day time limit from the day the apportionment complaint was filed. The plaintiff's first motion to dismiss was filed forty-five days after Midstate Medical's apportionment complaint and their second motion to dismiss was filed more than ninety days after the second apportionment complaint. The plaintiffs do not address the timeliness of their motions. They claim standing to file a motion to dismiss an apportionment complaint citing Bialik v. The Village at Brookfield Commons, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 020346730 (August 26, 2003) (Upson, J.). Defendant Midstate Medical Center concedes that the plaintiff has standing. The other defendants/apportionment plaintiffs are silent on the issues of timeliness and standing, having not filed an objection to the motion to dismiss.
Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ."
Practice Book § 10-8 provides in relevant part: "Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . ."
The court does not agree that the motion is untimely. Practice Book § 1-8 provides "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." The motions to dismiss, having been filed early in the plaintiff's case, cause no harm if they are allowed. There would be great harm if they were not allowed.
First, under Practice Book § 10-30, as strictly read there is no present deadline imposed since DeBaross never entered an appearance.
Further, if the court is constrained to read the rules in some broad way to superimpose time limits for a factual situation not contemplated by the rules, and, use the return dates as the events from which to mark compliance, the timeliness of the filing of the motions to dismiss substantially complies with the Practice Book. Practice Book § 3-2 provides in part ". . . an appearance . . . should be filed on or before the second day following the return day . . ." The return date for the first apportionment complaint was July 11, 2006. Conceivably, had the apportionment defendant chosen to appear, an appearance could have been filed on July 13, 2006 while adhering to Practice Book § 3-2. Applying Practice Book § 10-30 the defendant would have until August 11, 2006 to file his motion to dismiss. The first motion to dismiss filed on July 31, 2006 would have been within the time allotted. Under the same analysis the second motion to dismiss would have been filed around sixty days beyond what the practice book allows.
It would be unjust to the apportionment plaintiffs to allow one motion to dismiss and disallow the other motion to dismiss when both apportionment complaints name the same defendant. The language of Practice Book § 10-30 read alone would arguably allow both of the present motions. Therefore the court cannot countenance the harm caused by rigid adherence to a reading of the practice book that would allow one of the motions to dismiss but not the other.
II. PERSONAL JURISDICTION UNDER THE LONGARM STATUTE
The apportionment plaintiffs have provided additional facts in support of its assertion of personal jurisdiction under General Statute § 52-59b subsections (1), (3) and (4). They are that Grasser was billed by Lee Memorial Health System (Ameripath Florida Inc.) at her Connecticut address, that payment was made by her Connecticut based health insurance company and that the hospital records revealed these facts at the time of treatment; that DeBaross owns property within the state which he uses as security for student loans, and that payment for these loans is made to a bank in Connecticut; and, at the time of the incident DeBaross was licensed to practice medicine in Connecticut. The apportionment plaintiffs argue that as a result of these facts the court may exercise personal jurisdiction over DeBaross without violating due process considerations.
General Statute § 52-59b provides for long arm jurisdiction. In the present case the relevant sections are:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state . . . (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state . . ."
A. Transacts any Business within the State
"[I]n enacting 52-59b, the legislature used New York Civil Procedure Law 302 (McKinney 1980-81 Sup.) as a model. We therefore find pertinent the judicial interpretation given to that New York statute . . . [W]e construe the term `transacts any business' to embrace a single purposeful business transaction." (Citations omitted.) Zartolas v. Nisenfield, 184 Conn. 471, 474, 440 A.2d 179 (1981). "The Appellate Division of the New York Supreme Court has stated that telephone calls and written communications, which generally are held not to provide a sufficient basis for personal jurisdiction under the long-arm statute, must be shown to have been used by the defendant to actively participate in business transactions in New York . . ." (Citation omitted; internal quotation marks omitted.) Green v. Simmons, 100 Conn.App. 600, 605 (2007).
In Zartolas, the plaintiffs sought relief for alleged breach of covenants in a warranty deed for the sale of property. Although the deed was executed in Iowa the property was located in Connecticut. The court in finding personal jurisdiction over the defendants reasoned that "[t]he defendants' execution of the warranty deed in Iowa does not negate the transaction's connections with Connecticut . . ." (Citation omitted.) Zartolas v. Nisenfield, supra, 184 Conn. 475. "The court noted that "[t]he defendants purposefully availed themselves of the privileges of owning and selling Connecticut land." Zartolas v. Nisenfield, supra, 478.
In contrast, the transaction in the instant case arose from an unplanned event outside of Connecticut. DeBaross in no way availed himself of contact with Connecticut. "As a broad. generalization, a nondomiciliary who enters New York's service economy pursuant to a contract is more likely to be deemed to be transacting business in New York than is one who performs services out of State for New York residents on a random basis." McLenithan v. Bennington Community-Health Plan, 223 A.D.2d 777, 778, 635 N.Y.S.2d 812, (1996). It is undisputed that Grasser did not anticipate or plan for medical treatment while on vacation in Florida. While DeBaross might have known vacationers would need emergency medical care, he could not have anticipated being hailed into courts in their many jurisdictions when the service he provided was accomplished wholly in Florida. That Grasser's funds for payment would find their origins in Connecticut is not determinative because DeBaross did not have the choice to purposefully avail himself of the privileges associated with conducting business within the state. Even though DeBaross had a Connecticut medical license he did not practice medicine in Connecticut, further there is no evidence that DeBaross sought out or solicited residents of Connecticut to utilize his services in Florida. Once an out-of-state resident turned to him for treatment he had no choice but to bill the patient at the patient's home address or forgo payment for his services. The actually billing was incidental to the transaction at issue, namely the medical treatment which occurred in Florida.
Assuming the billing of Grasser in Connecticut constituted a business transaction the court still would not have personal jurisdiction because the cause of action has not risen out of the billing and payment, it has risen out of the alleged medical malpractice.
Similar to the present case is Ingraham v. Carroll (Ingraham I), 235 A.D.2d 778, 652 N.Y.S.2d 361 (1997), appeal granted, 89 N.Y.2d 812, 679 N.E.2d 644, (1997). Aff'd, 90 N.Y.2d 592, 687 N.E.2d 1293, (1997), where the New York intermediate appeals court affirmed the lower court's ruling dismissing the complaint for lack of personal jurisdiction under N.Y.Civ.Prac.L R 302(a)(1) and N.Y.Civ.Prac.L R 302(a)(3) the equivalent to General Statute § 52-59b(a)(1) and General Statute § 52-59b(a)(3). In Ingraham I the Appellate Division of the Supreme Court of New York court rejected the contention that an out of state (Vermont) physician, who was also licensed in New York, had transacted business in New York, within the meaning of N.Y.Civ.Prac.L R. 302(a) despite regular referrals from a New York state health care provider. Although not addressed, presumably the doctor billed both the patients he treated and their health care provider in New York State. "We reject plaintiffs contention that the fact that [the physician] regularly received referrals from [the health care provider] was sufficient to show that decedent's treatment arose out of his transacting business in New York. There was no contract with [the health care provider] and the referrals do not, in our view, show that [the physician] purposely interjected himself into New York's service, economy or developed other significant contacts with New York." (Citations omitted; internal quotation marks omitted.) Ingraham v. Carroll, supra, 235 A.D.2d 779.
N.Y.Civ.Prac.L. R. 302 provides in relevant part: (a) Acts which are the basis of jurisdiction. As to a cause faction arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or . . .
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act if he
i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . ."
In the decision of the Court of Appeals affirming this intermediate appellate decision the majority noted in fn 2, "Not before us is the question whether a referral/fee arrangement creating mutual obligations would constitute an interstate business activity or give rise to jurisdiction under a different long arm provision . . . because there is absolutely no evidence of such an arrangement here." Ingraham v. Carroll, 90 N.Y.2d 592, 600, fn 2, 687 N.E.2d 1293, (1997).
The court also rejected the contention that there was personal jurisdiction for committing a tortious act out of the state causing injury to person within the state. This ruling was appealed and affirmed in Ingraham II.
In the recently decided Ryan v. Cerullo, 282 Conn. 109 (2007), the Supreme Court of Connecticut reached the same result. In Ryan the plaintiff, a resident of Connecticut who worked in New York, initiated a malpractice claim against the accountants hired to prepare his New York and Connecticut income tax returns. Although his New York return was interrelated to his Connecticut return, his claims of accountant malpractice were based on the preparation of the New York income tax return. The defendants were New York based, performed their work in New York, did not solicit business in Connecticut, did not promote themselves as a national accounting firm, and met with the plaintiff only in New York. Although the defendants did prepare the plaintiffs Connecticut income tax return the court affirmed the lower court's finding that it lacked jurisdiction noting " . . . any relationship or nexus between [defendant's] activities and this state simply is too attenuated to support the conclusion that the accounting services [defendant] performed for the plaintiff constituted transacting business in this state for purposes of § 52-59b." Ryan v. Cerullo, supra, 121.
Although Ryan is distinct from the instant case in that there is no evidence the defendant was a licensed CPA in Connecticut and there was no mention of billing the plaintiff at his Connecticut address, it is still instructive. In Ryan the court noted ". . . the plaintiff cannot meet the second requirement of § 52-59b(a)(1), namely, that his cause of action against Cerullo arose from Cerullo's business activity in this state." Ryan v. Cerullo, supra, 282 Conn. 121-22. "In determining whether the plaintiffs' cause of action arose from the defendants' transaction of business within this state we do not resort to a rigid formula. Rather we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." (Citation omitted.) Zartolas v. Nisenfield, supra, 184 Conn. 477.
In Ryan, even though the defendant had prepared the plaintiff's Connecticut state income tax return, the court refused to find that the cause of action arose from business activity in Connecticut since the alleged negligence related to the New York tax return. The court reached this result despite the interrelationship of the two state tax returns; the increase in tax liability in the New York income tax return led to an increased credit in the Connecticut income tax return.
Balancing the considerations enunciated in Zartolas, though DeBaross was licensed to practice medicine in Connecticut at the time of his conduct in Florida, the court does not find that the cause of action arose from business activity in Connecticut. The apportionment complaint is based on an alleged negligent act that occurred in Florida and after leaving Florida the plaintiff had no further contact with DeBaross. There is no evidence that DeBaross was practicing medicine in Connecticut at the time of the act, was soliciting business in Connecticut at the time of the act or was meeting with patients in Connecticut at the time of the act. Although he was licensed in Connecticut, DeBaross had chosen not to practice medicine in Connecticut and was in fact practicing medicine over 1200 miles away.
Lastly, it would be bad public policy to allow emergency medical treatment of a patient from out of state to confer personal jurisdiction upon the treating doctor in a state where he is not practicing just because the doctor is also licensed in that state. Conferring jurisdiction under these circumstances would encourage treatment providers to refuse treatment to out of state residents who require emergency medical assistance.
B. Commits a Tortious Act Outside the State Causing Injury to a Person Within State
Personal jurisdiction does not result from General Statute § 52-59b(a)(3). Even though DeBaross has allegedly committed a tortious act outside of Connecticut, which arguably resulted in an injury to the plaintiff within this state giving rise to the plaintiff's cause of action, DeBaross does not meet the requirements of § 52-59b(a)(3) subsections A or B. General Statute § 52-59(a)(3) provides in relevant part "commits a tortious act outside the state causing injury to person or property within the state . . . if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . ." Although DeBaross was licensed to practice medicine in the state at the time of the incident there is no evidence that he solicited business in this state. The only evidence of any revenue derived from this state, is that which came from the plaintiff. There is no evidence that the revenue from the plaintiff constituted substantial revenue from services rendered in the state or that DeBaross derives any revenue from interstate or international commerce aside from that which the plaintiff provided. Lastly, there is no evidence that DeBaross expected the act to result in consequences in the state since although he was licensed in the state at the time of the tortious act he did not practice in the state and the act occurred over 1200 miles away.
In the certified appeal of Ingraham I to the Court of Appeals of the State of New York, the highest court of New York examined the trial court dismissal resulting from the conclusion that the defendant did not have substantial contacts within the state. Ingraham v. Carroll Ingraham II, 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293 (1997). In Ingraham II, the court elucidated the facts behind the trial court decision and intermediate court affirmance. The plaintiff's decedent, a resident of New York State was referred by her New York physicians to consult with a Vermont physician in Vermont who was also licensed to practice medicine in New York. After three consultations with the Vermont physician in Vermont the physician scheduled and performed surgery at the South Western Vermont Medical Center. Ultimately the plaintiff was diagnosed with cancer and died. The decedent's husband brought an action in New York against the physicians involved, asserting personal jurisdiction over the non-resident based upon N.Y.Civ.Prac.L R 302(a)(3) the counterpart to General Statute § 52-59b(3). The New York Court of Appeals affirmed the lower court's dismissal for lack of personal jurisdiction noting that the ". . . appellant has made no showing that respondent `regularly does or solicits business . . . in the state' or `engages in any other persistent course of conduct . . . in the state' or `derives substantial revenue from goods used or consumed or services rendered in the state' (CPLR 302[a][3][i] [emphasis supplied]). Indeed, it is undisputed that respondent practices only in Vermont. He neither treated decedent in New York, nor contracted to provide services in New York or solicited business in New York." Ingraham v. Carroll, supra, 90 N.Y.2d 597-98.
Looking at the second subsection of N.Y.Civ. Prac.L R 302(a)(3) which mirrors General Statute § 52-59b(a)(3)(B), while the New York court reasoned in Ingraham II that the physician should have reasonably expected his actions to have consequences in New York based upon facts not present in the instant case, the court went on to conclude as a matter of law that since the defendant physician only treated patients in his home state he had not participated in interstate commerce.
"[W]here a local physician treats a nonresident patient is by no means uncommon . . . local physicians may treat nonresident patients traveling on vacation . . . to the physician, the patient's residence is largely irrelevant to the provision of medical services. Unlike a manufacturer who introduces a product into the stream of commerce expecting it to be sold in other States, a physician treating patients in his or her home State is providing a service that is inherently personal, and local, in nature. Undisputably, all of respondents revenue is derived from such local medical services . . . Thus, in terms of the substantial revenue from interstate commerce requirement . . . the existence of nothing more than an informal, even if frequent, referral practice . . . is insufficient, as is the fact that respondent holds an apparently completely unexercised privilege to practice medicine in New York." Ingraham v. Carroll, supra, 90 N.Y.2d 599-600.
Likewise here, DeBaross only provided teatment to the plaintiff while she was in Florida. That plaintiff was billed and that the funds for payment came from a Connecticut source does not constitute interstate commerce for purposes of establishing personal jurisdiction.
The distinguishing facts of the first element in Ingraham II, that the defendant expected that the plaintiff's treating New York doctors would follow his advice on a course of treatment is totally absent in the facts before his court in the instant matter.
C. Owns, Uses or Possesses any Real Property Situated Within the State
Personal jurisdiction is also lacking under General Statute § 52-59b(a)(4). While DeBaross owned real estate in Connecticut at all salient times, the real estate owned by DeBaross was not in any way involved in the present matter. "By the terms of § 52-59b(a)(4), the cause of action against a non-resident must arise out of the ownership, use, or possession of the real property." Kascak v. O'Rourke, Superior Court, judicial district of Fairfield at Bridgeport. Docket No. 26 14 38 (October 29, 1990, Thim, J.) [ 1 Conn. L. Rptr. 382]. ("Like transacting business, ownership, use or possession of real property as a basis for in personam jurisdiction requires that the real property interests involved be related to the subject matter of the litigation. Shaffer v. Heitner, 53 L.Ed.2d 683 (1977). Shaffer v. Heitner requires that jurisdiction be founded upon a relationship among the forum, the defendant and the controversy." Chemical Bank v. Schlesinger, Superior Court, judicial District of Stamford-Norwalk at Stamford. Docket No. CV 920122878 S (Dec. 21, 1993, Mottolese, J.) ( 1993 Ct.Sup. 11077).
General Statute 52-59b(a)(4) provides in relevant part " . . . owns, uses or possesses any real property situated within the state . . ."
Because personal jurisdiction is lacking under the Connecticut long arm statute the court need not address constitutional due process.
The motions to dismiss are granted.