Opinion
No. 386702
September 11, 1998
MEMORANDUM OF DECISION
I
The defendants move to strike counts one, three and four of the amended complaint, which seek relief pursuant to General Statutes §§ 31-51m et seq., on the grounds that the National Insurance Crime Reporting Bureau is not a public agency.
General Statutes § 31-51m(b) provides in pertinent part: "No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action." Thus, an essential element of a claim under General Statutes § 31-51m is that the plaintiff reported a violation to a public body. Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 140, 544 A.2d 655 (1988).
"Public body" is defined in General Statutes § 31-51m(a)(4) as: "(A) any public agency, as defined in subsection (a) of section 1-18a, or any employee, member or officer thereof, or (B) any federal agency or any employee, member or officer thereof." (Emphasis added.)
General Statutes § 1-18a(a) provides: "'Public agency' or `agency' means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions."
The Connecticut General Statutes and the regulations of the Commissioner of Insurance make reference to the National Insurance Crime Bureau. See, e.g., General Statutes § 38a-357; Res., Conn. State Agencies §§ 38a-357-1 through 38a-357-8.
General Statutes § 38a-357 provides: "(a) Each insurance company which issues in this state motor vehicle insurance policies providing theft or fire coverage, including policies written under an assigned risk plan under section 38a-329, shall report the theft, larceny or loss due to fire of any motor vehicle, or any of its component parts, to the National Insurance Crime Bureau.
"(b) Each insurance company which issues in this state motor vehicle insurance policies, including policies written under an assigned risk plan under section 38a-329, shall report all constructive total losses involving salvage for any motor vehicle to the National Insurance Crime Bureau.
"(c) Such reports shall include the vehicle identification number and any other information required, pursuant to regulations adopted by the Insurance Commissioner in accordance with the provisions of chapter 54. The commissioner shall designate the National Insurance Crime Bureau as the central index reporting bureau in the state. The bureau shall, in cooperation with the Insurance Department, establish a central index file of all such reports. Any costs of administration or operation of such system shall be paid by such insurance companies in accordance with procedures established by the commissioner."
Section 38a-357-1 of the Regulations of Connecticut State Agencies provides: "The purpose of sections 38a-357-1 to 38a-357-8, inclusive of the regulations of Connecticut State Agencies, is to designate the National Insurance Crime Bureau as the central index reporting bureau; to provide for the reporting by insurance companies of motor vehicle total losses due to theft or larceny, or constructive total losses due to fire, of any motor vehicle, or theft of any of its component parts, and other information; and to establish procedures for the payment of costs of administration and operation of a central index file maintained by the National Insurance Crime Bureau."
Section 38a-357-3 of the Regulations of Connecticut State Agencies provides: "The Commissioner designates the National Insurance Crime Bureau (NICB) as the Central Index Reporting Bureau in the State of Connecticut."
Section 38a-357-4 of the Regulations of Connecticut State Agencies provides: "The responsibilities of the NICB as the Central Organization are as follows:
"(a) the NICB shall establish and keep a central index file in a manner to be determined by it and consistent with its established operation procedures for all total losses due to theft or larceny, or total losses due to fire, of any motor vehicle, or theft of any of its component parts reported by insurers. Such reports shall be kept for a minimum of five years from the date of entry into the NICB system, except in the case of fires and motor vehicle salvage, which will be kept a minimum of two years from such entry.
"(b) the NICB shall send acknowledgment of a total theft loss report received from an insurer within 5 working days.
"(c) the NICB shall cooperate with insurers in the resolution of errors and the investigation of claims suspected to be fraudulent."
Section 38a-357-5 of the Regulations of Connecticut State Agencies provides: "The responsibilities of insurers are as follows:
"(a) Insurers shall report all total losses due to theft or larceny, or constructive total losses due to fire, of any motor vehicle, or theft of any of its component parts, to the NICB within 2 working days from the receipt of sufficient information from the insured. If the insurer has not received an acknowledgment or other communication from the NICB within 10 working days following the submission of a total theft loss report to the NICB, the insurer shall immediately communicate with the NICB to determine the status of the report.
"(b) Insurers shall report to NICB all constructive total losses involving motor vehicle salvage, regardless of the nature or cause of loss or the type of coverage involved, including salvage retained by either an insured or a third party claimant. Reports of salvage shall be submitted to NICB within 5 working days of the sale of a salvaged motor vehicle, or within 5 working days after the date of loss payment where an insured or claimant retains possession of a salvaged motor vehicle.
"(c) It shall not be deemed to be an unfair claim settlement practice for an insurer to temporarily defer the processing and payments of a claim filed under comprehensive or other coverage in accordance with the following rules:
"(1) If the NICB indicates in its response to the insurer that coverage is in effect by more than one insurer for the same motor vehicle, that the motor vehicle has been previously reported as stolen and unrecovered, or that previous similar claims on the same motor vehicle have been reported, the insurer shall promptly investigate and resolve such discrepancy.
"(2) If the NICB discovers an erroneous motor vehicle identification number (VIN) and the NICB is unable to clear up such discrepancy internally, it shall send a questionnaire to the insurer. This questionnaire shall be returned to the NICB within 5 working days of receipt by the insurer. If the NICB and the insurer are unsuccessful in resolving the VIN error after a 30-day period from the date of the receipt by the insurer of sufficient information from the insured, the insurer shall proceed with the processing of the loss claim.
"(3) If the NICB indicates in its response to the insurer or the insurer finds that it has cause to believe that the claim may have been based on the fraudulent act of any person, the insurer shall promptly provide such information to the NICB and shall cooperate fully with the NICB in the investigation of any such claim."
Section 38a-357-6 of the Regulations of Connecticut State Agencies provides: "The NICB is hereby authorized to make assessments, in such manner as its Governing Board may determine, among insurers licensed in the State of Connecticut, to reimburse NICB for the costs of the performance of its duties under sections 38a-357-1 to 38a-357-8, inclusive of the Regulations of Connecticut State Agencies. Such assessments shall be prorated upon the basis of net fire and theft premiums, including those fire and theft premiums written under comprehensive policies, allocated to the State of Connecticut on the basis of ownership, use or maintenance of motor vehicles. Each insurer which is a member of the NICB shall be entitled to a credit against the assessments authorized in this section for all assessments directly related to Connecticut premiums paid by it to the NICB on account of its membership during the period covered by the assessment."
Section 38a-357-7 of the Regulations of Connecticut State Agencies provides: "All insurers required to submit reports to the NICB for the purpose of complying with sections 38a-357-1 to 38a-357-8 of the Regulations of Connecticut State Agencies, inclusive, shall be bound by all of the reporting requirements of the NICB."
Section 38a-357-8 of the Regulations of Connecticut State Agencies provides: "(a) Insurers shall cooperate with the NICB and shall release information in their possession to the NICB upon [its] reasonable request.
"(b) the NICB, in furnishing information to an employee of the Department of Public Safety, Department of Motor Vehicles, a local police department or other law enforcement agency, upon such employee's request, shall do so on behalf of any insurer which reported any such information to NICB."
In Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 759-61, 591 A.2d 395 (1991), the Supreme Court stated: "In cases such as this, where it is unclear whether a hybrid public/private entity falls within the definition set forth in 1-18a(a), we have interpreted the section to include within its scope an entity that is the functional equivalent of a public agency. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 554-55, 436 A.2d 266 (1980). In determining whether an entity is the functional equivalent of a public agency, we consider the following criteria: `(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.' Id., 554; see also Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989).
"In Hallas v. Freedom of Information Commission, supra, 295, the Appellate Court concluded that `[u]nless all four factors [of the functional equivalency test] are present, the agency does not meet the test and cannot be considered a public agency.'
"In light of the myriad of organizational arrangements that may be confronted, under the functional equivalency approach, `"each new arrangement must be examined anew and in its own context. " Washington Research Project, Inc. v. Department of Health, Education Welfare, [ 504 F.2d 238, 245-46 (D.C. Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975)]. . . . `All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.' Railway Labor Executives' Assn. v. Consolidated Rail Corporation, 580 F. Sup. 777, 778 (D.D.C. 1984). . . ." Connecticut Humane Society v. Freedom of Information Commission, supra, 218 Conn. 759 61; see also Domestic Violence Service of Greater New Haven v. Freedom of Information Commission, 240 Conn. 1, 3 n. 2, 688 A.2d 314 (1997); Yantic Volunteer Fire Co. v. Freedom of Information Commission, 44 Conn. Sup. 230, 232-33, 682 A.2d 156 (1995), aff'd, 42 Conn. App. 519, 679 A.2d 989 (1996).
In light of General Statutes § 38a-357, Section 38a-357-1 of the Regulations of Connecticut State Agencies and the functional equivalency test of Connecticut Humane Society v. Freedom of Information, supra, it cannot be said on this state of the pleadings, on a motion to strike, that the National Insurance Crime Reporting Bureau is not a public body or public agency.
II
The defendants move to strike counts one, three and four of the amended complaint, which seek relief pursuant to General Statutes § 31-51q, because, they claim, the plaintiff has failed to allege that she was exercising a right protected by the First Amendment to the Constitution of the United States or section 4 or 14 of the Constitution of the State of Connecticut when she was discharged.
General Statutes § 31-51q provides in pertinent part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge. . . ." (Emphasis added.) The gravamen of this ground of the defendants' motion to strike is that the plaintiff has not alleged a violation of constitutional rights because all of the plaintiff's statements were made on private property. This is not true of the third count which alleges without any specification of the place of reporting: "the plaintiff was terminated from her employment at Francis A. Sartiano's chiropractic [o]ffice for whistle blowing activity in reporting the fraud and illegal insurance practices of Francis A. Sartiano."
The first and fourth counts, however, allege:
On May 5, 1994, the plaintiff was meeting with an insurance investigator for the National Insurance Crime Bureau and the defendant Francis A. Sartiano, P.C.'s, office manager, Angelina Avitable, walked in on the meeting and fired the plaintiff.
On May 5, 1994, Angelina Avitable, knew that the plaintiff's meeting was with an insurance investigator who was conducting an investigation of the illegal practices of Francis Sartiano, P.C., since the plaintiff had previously informed her of the investigation and the investigator's identity and had asked her to cooperate in the investigation.
"The interpretation of pleadings is always a question for the court . . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citations and internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 82-83, 700 A.2d 655 (1997).
Applying this rule of construction, the court still cannot divine a suggestion in the first and fourth counts that the plaintiff exercised any constitutional right on public property. The United States Supreme Court has refused "to extend federal constitutional protection to expressive activity on private property. "Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1210 (1984); see Pruneyard Shopping Center v. Robins, 447 U.S. 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). Similarly, the Connecticut Supreme Court has held that the state constitution's free speech provisions only protect against infringement by state action. Cologne v. Westfarms Associates, supra, 192 Conn. 62; see also Monahan v. Bausch, Superior Court, judicial district of Fairfield; Docket No. CV91 0280862 (Sept. 11, 1991) (Spear, J.). For this reason, the motion to strike the first and fourth counts is granted.
III
The defendants next move to strike the fifth count of the plaintiff's complaint. The defendants characterize this count as sounding in intentional infliction of emotional distress. The plaintiff claims that it alleges only negligent infliction of emotional distress. Adopting the plaintiff's characterization, the count still must be stricken.
The material allegations of the fifth count are that during her employment, the plaintiff many times asked the defendant Sartiano to discontinue his illegal practices, a request he refused. While the plaintiff was meeting with an insurance investigator about these practices, Sartiano had her fired.
"[N]egligent infliction of emotional distress in the employment context arises only where it is `based upon unreasonable conduct of the defendant in the termination process. . . .`the mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. `The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.' Madani v. Kendall Ford, Inc., 312 of. 198, 204, 818 P.2d 930 (1991)." Parsons v. United Technologies Corp., supra, 243 Conn. 88-89. "Such a claim must be accompanied by additional allegations of unreasonable conduct which occurred during the termination process or at the time of discharge. Chieffalo v. Norden Systems, Inc., Superior Court, judicial district of Stamford-Norwalk, No. 127694 ( 12 Conn. L. Rptr. 656, 657) (1994); Skierkowski v. Creative Graphics Services, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, No. 463242 (1995). An example of unreasonable conduct occurring at the time of discharge is where a `meeting or any other aspect of the actual discharge was done in [a] . . . humiliating manner. . . .' Leniart v. C S Distributors, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 516354 (1994)." Parsons v. Sikorsky Aircraft Division, Superior Court, judicial district of Fairfield, No. 280394 (March 1, 1996), aff'd in part, rev'd on other grounds, 243 Conn. 66, 700 A.2d 655 (1997). Since the plaintiff does not allege unreasonable conduct in the termination process, the motion to strike the fifth count is granted.
IV
Finally, the defendants move to strike counts three, four, five and six, which are directed against the defendant Frank A personally, because there is no allegation of any tortious act committed by that defendant in those counts.
A.
In count three the plaintiff alleges that the defendant is the alter ego of Francis A., P.C., and that he failed to comply with necessary corporate procedures. That count, however, does not allege that Sartiano, individually, is liable for the wrongful discharge of the plaintiff alleged in counts one and two. Rather, the third count alleges that used his control of the corporation to commit fraud and illegal insurance practices which "led to and proximately caused the [plaintiff's] injuries and damages hereinafter more specifically set forth."
"With regard to the requisite causal element, it is axiomatic that proximate cause is `[a]n actual cause that is a substantial factor in the resulting harm . . . . `Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662 A.2d 753 (1995). The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act . . . . Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989) [overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995)]. Proximate cause does no exist merely because there is cause in fact. 'Philosophically, cause in fact is limitless; but for the creation of this world, no crime or injury would ever have occurred. . . . Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions. . . . `Stewart v. Federated Dept. Stores, Inc., supra, 605-606, citing W. Prosser W. Keeton, Torts (5th Ed. 1984) § 41, p. 264, and § 42, p. 273. 'This line is labeled "proximate cause."' Suarez v. Sordo, 43 Conn. App. 756, 769, 685 A.2d 1144 (1996) [cert. denied, 240 Conn. 906, 68 A.2d 334 (1997)]. . . .
"Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306-307, 692 A.2d 709 (1997).
In Abrahams v. Young Rubicam, Inc., supra, 240 Conn. 300, the plaintiff brought an action under the Connecticut Unfair Trade Practices Act (CUTPA) in United States District Court alleging that the defendants had damaged his reputation and business interests by their participation in a scheme in which they paid substantial monies to a third party in the mistaken belief that the monies would be used to bribe the plaintiff, then reported to government authorities that the plaintiff had accepted the bribe. Id., 302. The District Court dismissed the CUTPA claim. Id. On appeal, the Second Circuit certified to the Supreme Court of the State of Connecticut the question whether the plaintiff's allegations, if proven, would give rise to a CUTPA claim. Id., 303. The Supreme Court held that no such claim could be proven. Id., 304. Said the court:
In this case, Young Rubicam's bribery scheme did not, in and of itself, directly harm the plaintiff. The plaintiff has not alleged, nor can it be reasonably inferred from the plaintiff's allegations, that Young Rubicam either intended or could have foreseen that, as a result of its attempt to bribe the plaintiff, he would be injured by an erroneous indictment for bribery or by publication of the incorrect accusations therein. In other words, Young Rubicam's conduct in attempting to bribe the plaintiff was not `a substantial factor reasonably foreseeable as likely to bring about [the] plaintiff's indictment [on false charges] and his resulting damages. [the p]laintiff was neither the intended target nor victim of [Young Rubicam's] illegal activities. . . .`It is true that the plaintiff would not have been harmed but for the existence of the bribery scheme. As explained previously, however, mere `but for' causation is not sufficient to support a CUTPA claim. Rather, the proximate cause of the plaintiff's injuries was the confession that Young Rubicam gave to state and federal authorities after its scheme was discovered, in which it implicated the plaintiff as having accepted bribes. It was the confession, not the underlying bribery scheme, that directly and predictably led to the indictment against the plaintiff that damaged his reputation. As the Court of Appeals observed, the plaintiff was injured not by the bribery scheme itself, but `by the fallout from the scheme's exposure.'
(Citations omitted.) Id., 307-308.
Similarly, here, the proximate cause of the plaintiff's losses was not Sartiano's fraud and illegal insurance practices. The proximate cause of her losses was her discharge from her employment. While proximate cause, as stated supra, is usually a question of fact, there are cases where common sense and experience render it a question of law which, as in Abrahams v. Young Rubicam, Inc., supra, may be determined from the face of the complaint. See also Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 113-115, 585 A.2d 1263 (1991) (granting of motion to strike affirmed based on lack of proximate cause). This is such a case. The motion to strike the third count is granted.
B.
In count four the plaintiff alleges that she was employed by individually and that she was wrongfully discharged, in violation of General Statutes §§ 31-51q and 31-51m, when she was discharged by acting through his employee. The defendants move to strike this count on the grounds that it asserts liability against personally. "The flaw in the defendants position is that it presupposes that the plaintiffs are not entitled to put forth alternative theories of liability. Our law, however, has never placed such a limitation on litigants. Cf. Dreier v. Upjohn Co., 196 Conn. 242, 492 A.2d 164 (1985) (under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint); DeVita v. Esposito, 13 Conn. App. 101, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988) (same). "Sharp v. Wyatt, Inc., 31 Conn. App. 824, 844, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994); see also Marrin v. Spearow, 35 Conn. App. 398, 401, 646 A.2d 254 (1994). Because the plaintiff, in the fourth count, alleges that she was employed by, individually, and was fired by him, she alleges a cognizable cause of action against him individually. So too, the sixth count, which alleges that the plaintiff was employed by personally and that he breached an implied covenant of good faith and fair dealing, is not vulnerable on this basis. In summary, the defendants' motion to strike counts one, three, four and five of the amended complaint is granted. The balance of the motion to strike is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court