DocketNumber: No. CV98 35 57 18 S
Citation Numbers: 2001 Conn. Super. Ct. 11709
Judges: RUSH, JUDGE.
Filed Date: 8/29/2001
Status: Non-Precedential
Modified Date: 4/17/2021
In count one of the complaint, the plaintiff alleges that GBIPA breached its contract with him by improperly terminating his membership in June, 1995. In count two, the plaintiff alleges that PHS was a party to GBIPA' s breach of contract. In count three, the plaintiff alleges that (iBIPA's conduct in seeking to terminate his membership on previous occasions as well as its conduct in terminating his membership in June, 1995, violates the Connecticut Unfair Trade Practices Act (CUTPA). In count four, the plaintiff alleges that PHS' conduct also violates CUTPA. (iBIPA filed an answer and special defenses in which it asserted that count three is barred by the applicable statute of limitations. The plaintiff filed a reply denying the special defense.
GBIPA moves for summary judgment on count three on the ground that the plaintiff did not bring his CUTPA claim within the three year statute of limitations set forth in General Statutes § 42-119g (f). In opposition to the motion for summary judgment, the plaintiff asserts that count three is not time barred because GBIPA engaged in a continuing course of conduct which tolled the statute of limitations.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled tojudgnent as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the CT Page 11711 evidence in the light most favorabl (to the nonmoving party. . . . The party seeking summary judgment has the burden of showing thi absence of any genuine issue [of] material facts which, under applicable principles of substantiw law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion musi provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Community Action for GreaterMiddlesex County, Inc. v. American Alliance Ins. Co.,
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci,
CUTPA authorizes the bringing of a cause of action for unfair or deceptive acts or practices in the conduct of any trade or commerce. General Statutes §
In Connecticut, an action is formally commenced and the statute of limitations stops running upon the service of the writ, summons and complaint on the defendant; Rana v. Ritacco,
The plaintiff argues that pursuant to this exception, the action in this case was commenced on July 27, 1998, the date the writ was sent to the sheriff. The sheriff filed an amended return of service in which he states that the writ was delivered to him for service on July 29, 1998.1 Therefore, under § S2-593a, the plaintiffs CUTPA claim is barred by limitations unless the conduct on which it is based occurred within three years of July 29, 1998, or no earlier than July 29, 1995.
A review of the amended complaint reveals that all of the conduct which forms the basis for count three occurred prior to July 29, 1995. Specifically, the plaintiff alleges that in 1994, GBIPA threatened to terminate his membership because he did not comply with a credentialing request which he thought was unjustified. He also alleges that in 1991, and on February 14, 1995, and March 3, 1995, (iBIPA threatened to terminate his membership in response to lawsuits he brought against other parties. Most recently, the plaintiff alleges that on March 6, 1995, GBTPA notified him that the association intended to terminate its agreement with him and his membership in (iBIPA. He claims that on or about June 22, 1995, PHS' medical director notified him that his membership in GBIPA was terminated. The plaintiff alleges that after June 22, 1995, other physicians requested that he see two patients, but he was unable to do so because of the termination. He also states that he believes that other PHS patients were not referred to him after that date because his membership in GBIPA had been terminated. Finally, the plaintiff alleges that PHS' medical director sent him a letter dated July 31, 1995, notifying him that he was reinstated as a member of (iBIPA, effective as of date of his termination.
The plaintiff did not submit any evidence that the conduct that forms the basis of hi CUTPA claim occurred within three years of August 6, 1999, as required under §
The plaintiff contends that his CUTPA claim is not barred because (iBiIiPA engaged in a continuing course of conduct which tolled the statute of limitations. Pursuant to the continuing course of conduct doctrine, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed". (Internal quotation marks omitted.) Sanborn v. Greenwald,
"[I]n order [t]o support a finding of a continuing course of conduct that may toll the statutt of limitations there must be evidence of a breach of a duty that remained in existence aftei commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongfai conduct of a defendant related to the prior act." (Emphasis added; internal quotation marks omitted.) Sherwood v. Danbury Hospital,
As to the first category, "[w]hat is meant by the "special relationship' required by this principle is not clear . . . it does mean something more than evidence of either a terminated . . . or on-going relationship." Graetz v. Brito, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 052517 (March 2, 1998, Flynn, J.) (
In the complaint and in the affidavit the plaintiff submitted in opposition to the motion foi summary judgment, the plaintiff does not allege any facts or offer any evidence from which the court could find that a genuine issue of fact exists as to whether there was a special relationship between the plaintiff and (iBIPA. According to the plaintiff, the only relationship he has with (iBIPA is based on his contract with this defendant.
As to the second category of conduct that may support a continuing course of conduct argument, the plaintiff fails to offer any evidence that (iBIPA engaged in later wrongful conduct within the appropriate limitations period that is related to its prior actions. He concludes that his "reinstatement was pending the outcome of the appeal [and his termination] was never formally resolved;" (Plaintiffs Affidavit, ¶ 3). Although the continuing course of conduct doctrine is conspicuously fact-bound; see Blanchette v. Barrett,
In the present case, viewing the evidence in the light most favorable to the plaintiff, as the court is required to do; Community Action forGreater Middlesex County, Inc. v. American Alliance Ins. Co., supra,
Accordingly, the Motion for Summary Judgment as to count three is hereby granted.
RUSH, J.