Opinion
No. CV065000641
October 2, 2006
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO STRIKE
STATEMENT OF THE CASE
On March 16, 2006, the plaintiff, Bryan Barry, filed a three-count complaint against the defendant, Steven Boccarossa. Count one of the complaint alleges negligence on the part of the defendant, an insurance agent, in failing to use reasonable care concerning the renewal of the plaintiff's automobile insurance policy and the filing of an accident claim with the insurer Nationwide Insurance. The first count also alleges that the defendant was negligent in failing to include medical payment coverage in the plaintiff's policy. Count two alleges a violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq.; count three alleges that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq.
In his complaint, the plaintiff alleges the following: In March 2005, he procured a renewal of his automobile insurance policy. Both policies were written by Nationwide Insurance. On April 26, 2005, Nationwide sent an auto expiration notice to the plaintiff with a copy to the defendant. The notice informed the plaintiff that his automobile insurance policy had expired April 22, 2005, due to nonpayment of the premium, but that the policy could be reinstated without interruption upon payment of the premium by May 7, 2005. The notice further advised that the plaintiff should contact the defendant if he had any questions. On April 30, 2005, the plaintiff was injured in a serious motor vehicle accident and required prolonged hospitalization. On May 1, 2005, the plaintiff's father contacted the defendant and told him about the plaintiff's injuries. The defendant, however, did not inform the plaintiff's father of the cancellation about the automobile insurance policy or take any other action regarding the matter. The plaintiff claims, inter alia, that the defendant was negligent "in that he failed to use the degree of care in handling the plaintiff's policy renewal and claim of a reasonable and prudent professional insurance agent under the circumstances then and their existing." Complaint, para. 22(w).
On May 25, 2006, the defendant filed a motion to strike all three counts of the complaint on the grounds that the complaint fails to state a cause of action for negligence or for a violation of CUIPA or CUTPA. The defendant submitted a memorandum of law in support of his motion. The plaintiff submitted a memorandum of law in opposition. During oral argument on the motion, the parties stipulated that the motion to strike could be granted as to the second and third counts. Only count one remains. For the following reasons, the defendant's motion to strike count one of the complaint is denied.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). 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 . . . [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "[The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
The defendant moves to strike count one on the ground that the plaintiff fails to state a legally sufficient negligence claim because after procuring the insurance policy, the defendant owed the plaintiff no further duties, including any obligation to monitor the status of the policy or notify the plaintiff about any notice of cancellation. In response, the plaintiff insists that insurance agents have a duty to perform in accordance with the standards of the profession, using reasonable care, skill and diligence. He contends that a fiduciary relationship existed between the parties, and that the existence of a fiduciary relationship is a question of fact not suitable for determination on a motion to strike. See generally, Albuquerque v. Albuquerque, 42 Conn.App. 284, 287, 679 A.2d 962 (1996) ("[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.") (Internal quotation marks omitted.)
In light of the court's conclusion that the motion to strike should be denied based on the allegations of the complaint as discussed herein, the court does not address the plaintiff's arguments premised on his claim that a fiduciary relationship existed between the parties.
"The existence of a duty . . . is a matter of law." Murdock v. Croughwell, 268 Conn. 559, 565, 848 A.2d 363 (2004). "Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Id., 566.
An insurance agent is considered the agent of the insured for the purpose of negotiating a policy with an insurance company. Mishiloff v. American Central Ins. Co., 102 Conn. 370, 379, 128 A. 33 (1925). In this position "he owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss." Ursini v. Goldman, 118 Conn. 554, 559, 173 A. 789 (1934). "Where [the agent] undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default." Id. Once the agent has procured the insurance policy for the customer, however, "the agency relationship between the insured and the broker terminates, and the broker is without any authority to do anything which further affects the insured unless expressly or impliedly authorized by the insured to do so." Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 664, 228 A.2d 803 (1967).
The defendant relies on the reasoning of cases such as Lewis v. Michigan Millers Mutual Ins. Co., supra, 154 Conn. 660, to argue that an "insurance agent owes no continuing duty to the customer to monitor the customer's compliance with policy terms after having obtained insurance for the customer." Defendant's Memorandum, p. 8. The deficiency of the defendant's argument is that it fails to reflect that the agency relationship between an insured and the insurance agent, terminated after the acquisition of the insurance policy, may be reestablished by the insured's express or implied authorization to take further action. Id. at 664.
This is not a case where the agent merely received notification of an impending cancellation and did not contact the insured. See, e.g., Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., Superior Court, judicial district of New Haven, Docket No. CV 98 0416692 (December 22, 2003, Gilardi, J.) ( 36 Conn. L. Rptr. 429). According to the complaint, the plaintiff was unaware that there was a problem with the premium payment. He experienced a long hospitalization after the accident, and as a result, he did not receive the cancellation letter until some time after the accident. During the plaintiff's hospitalization, but before the policy's final cancellation date, the plaintiff's father notified the "defendant of the plaintiff's automobile accident and injuries as well as the fact that he was hospitalized." Complaint, para. 15.
These allegations must be assumed true, and in light of them, it may be reasonably inferred that on the basis of the parties' relationship, namely as insured and insurance agent, the father's contacting of the defendant on behalf of the hospitalized plaintiff was to request or authorize the defendant, either implicitly or explicitly, to effectuate a claim with the insurer for the plaintiff's benefit. See generally, Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (In considering a motion to strike, "[t]he court must construe the facts in the complaint most favorably to the plaintiff.") Indeed, it is difficult to discern what other reason existed for notifying the defendant about the accident.
According to the defendant, even though he was aware of the cancellation letter, he was not legally required to do anything in response to being informed that the plaintiff was involved in an accident that would involve the filing of a claim with the insurer. The court cannot agree. As previously stated, in determining whether a duty of care exists, the court should consider "whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result"; Murdock v. Croughwell, supra, 268 Conn. 565. On the basis of the considerations of Murdock, supra, and the facts presented in the complaint, the court cannot conclude that the defendant had no duty to use reasonable care as necessitated by the circumstances, particularly in light of his relationship as the plaintiff's insurance agent and the indication in the notice of cancellation that questions about it should be referred to the defendant. Although as a general rule, the defendant may have had no duty to monitor the insurance policy or contact the plaintiff after the policy was acquired, it does not follow that this rule applies when the defendant, as the plaintiff's insurance agent, receives subsequent information about an accident and authorization to act in regard to it, whether made implicitly or explicitly.
However, to clarify further the court's holding, the distinction between the existence of a duty and the exercise of it must be emphasized. The issue raised by the defendant's motion is whether, under the circumstances, the defendant had a duty of any kind, and not whether the defendant, in the exercise of a duty, acted without due care and committed negligence. This latter question must await determination by the trier of fact.
The defendant also moves to strike the claim that the defendant was negligent in failing to include medical payment coverage in the plaintiff's policy. During oral argument, plaintiff's counsel conceded that this claim was only viable if the defendant owed a duty of care regarding the cancellation notice. As the court finds that such a duty existed under the circumstances presented, the court declines to address the issue regarding the insurance policy's medical coverage. See generally, Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989) ("If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient").
CONCLUSION
Therefore, for the foregoing reasons, the defendant's motion to strike is hereby granted as to counts two and three of the complaint and denied as to count one.
So ordered.