Opinion
No. HHD-CV-06-4021653-S
November 2, 2006
MEMORANDUM OF DECISION
I Procedural History
This cause of action arises from a March 12, 2004, automobile accident in which David Zaleski struck a vehicle in which Amber Cillo and Linda Fox were passengers, seriously injuring each of them. David Zaleski, a minor, was intoxicated at the time of the accident allegedly as a result of consuming liquor illegally sold to him by the plaintiffs, owner and operator of Connecticut Beverage Mart. Amber Cillo and Linda Fox filed suit against the plaintiffs for negligently selling alcohol to David Zaleski. At this time, the plaintiffs discovered that the insurance it purchased through the defendant Smith Brothers Insurance, Inc. did not provide for liquor liability coverage. The plaintiffs thereafter filed an eight-count amended complaint, dated June 22, 2006, against the defendants, Continental Casualty Company and Smith Brothers Insurance, Inc., alleging a variety of errors in handling the plaintiffs' purchase of insurance. On July 7, 2006, the defendant Smith Brothers Insurance, Inc. filed a motion to strike counts one though five of the plaintiffs' amended complaint along with a memorandum of law. On August 22, 2006, the plaintiffs filed an opposition memorandum, and on October 20, 2006, the defendant filed a reply. The court heard oral argument on October 23, 2006.
II 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 ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 738 A.2d 299 (2000).
The court will address each count of the plaintiffs' amended complaint in sequence.
A Count One: Negligence
In count one of its amended complaint, the plaintiffs assert that the defendant, who knew or should have known of the nature of the plaintiffs' business, negligently failed to provide adequate insurance coverage to the plaintiffs, to advise the plaintiffs to purchase liquor liability coverage, and to review and explain the terms of the plaintiffs' policy.
In order to state a claim for negligence, a plaintiff must plead facts establishing that the defendant owed it a duty which it breached, and that as a proximate result, the plaintiff suffered some compensable harm. See Roach v. Ivan International Centers, Inc., 77 Conn.App. 93, 99, 822 A.2d 316 (2003) ("[t]he essential elements of a cause of action in negligence are . . .: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails.") (Citation omitted; internal quotation marks omitted.)
According to the plaintiffs' amended complaint, the defendant Smith Brothers Insurance, Inc. acted as its agent in purchasing insurance for the plaintiffs and as such, had a duty to exercise reasonable care in effectuating that purchase. The defendant states that it does not have a duty to the plaintiffs to advise them of appropriate insurance products, but rather, owes only a duty to exercise reasonable care in purchasing the insurance that the plaintiffs had already chosen.
The care which an insurance broker must exercise in ensuring that the buyer has proper coverage was described in Ursini v. Goldman, 118 Conn. 554, 554, 173 A. 789 (1934), as the "exercise [of] reasonable skill, care, and diligence in effecting the insurance." Id., 559. The court continued to state that "any negligence or other breach of duty on [the insurance broker's] part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss. Where he 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." (Emphasis added; citation omitted.) Id., 559.
The defendant argues that a narrow reading of this statement from Ursini should mark the outermost boundary of the insurance agent's duty to its customers. This court, however, is persuaded by the jury instructions given by the trial court and accepted as legally correct by the Appellate Court in Dimeo v. Burns, Brooks and McNeil, Inc., 6 Conn.App. 241, 504 A.2d 557, cert denied, 199 Conn. 805, 508 A.2d 31 (1986). In this case, which also involved the duty of an insurance agent to its customers, the trial court instructed the jury that "selling insurance is a specialized field with specialized knowledge and experience, and that an agent has the duties to advise the client about the kind and extent of desired coverage and to choose the appropriate insurance for the client. The court instructed the jury that the client ordinarily looks to his agent and relies on the agent's expertise in placing his insurance problems in the agent's hands. The court further instructed the jury . . . that an agent has the duty to explain [insurance] coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client." Id., 244-45.
The plaintiffs' complaint states facts sufficient to support a cause of action for negligence. Although a constrained reading of Ursini would disallow any cause of action against an insurance agent except one in which an agent fails to purchase insurance requested by a customer, the court does not believe that is the extent of the agent's duty. An insurance agent is in a position of superior skill and knowledge and is better positioned than someone unfamiliar with insurance products to choose the appropriate coverage. If an insurance agent is given facts by a customer that would indicate to a reasonably prudent agent that the customer requires a certain type of insurance to limit its exposure to liability, then it is a breach of the agent's duty to that customer for it to ignore such facts and fail to recommend the necessary coverage. The defendant's motion to strike count one of the plaintiffs' amended complaint is therefore denied.
B Count Two: Negligent Misrepresentation
In count two of its amended complaint, the plaintiffs claim that they reasonably relied to their detriment on the defendant's superior knowledge and expertise in the insurance industry and as a result of this reliance, along with the defendant's failure to advise and explain the limitations of the plaintiffs' insurance policy, the plaintiffs did not purchase liquor liability insurance.
Connecticut recognizes a cause of action for misrepresentation even if the defendant acts without malice. "[E]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . . Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation . . ." (Emphasis added; citation omitted; internal quotation marks omitted.) Savings Bank of Manchester v. Ralion Financial Services, Inc., 91 Conn.App. 386, 389-90, 881 A.2d 1035 (2005).
The plaintiffs' complaint fails to set forth facts establishing a cause of action for negligent misrepresentation. The crux of the plaintiffs' misrepresentation claim is that the defendant "negligently failed to advise and explain to the plaintiffs the limitations of the insurance coverage" and "as a result of relying upon the defendant's negligent and faulty representations" that the plaintiffs suffered damages. In order to state a cause of action for misrepresentation, the plaintiffs must point to an actual representation made by the defendant that was, in fact, false. The plaintiffs' statements that the defendant made "faulty" or "negligent" representations are merely legal conclusions not facts. The plaintiffs have pointed to no statement of fact made by the defendant which was false and on which the plaintiffs relied. As such, count two of the plaintiffs' amended complaint is stricken.
C Count Three: Indemnification
In count three of the plaintiffs' amended complaint, the plaintiffs state that due to the defendant's negligence, the defendant should be required to indemnify the plaintiffs for all losses suffered as a result of any lawsuits filed against them by Amber Cillo and Linda Fox. The plaintiffs have not plead indemnification under any statute, therefore, the court shall treat count three as a claim for common-law indemnification.
Common-law indemnification "imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indenmitee's passive negligence . . . To assert a claim for indemnification . . . an out-of-pocket defendant must show [among other things] that . . . the party against whom the indemnification is sought was negligent . . . [and] that party's active negligence, rather than the [indemnitee's] own passive negligence, was the direct, immediate cause of the . . . resulting injuries . . ." (Citation omitted; emphasis in original.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 524, 890 A.2d 140, appeal denied, 277 Conn. 928, 895 A.2d 798 (2006). See Bristol v. Dikau Bus Co., Inc., 63 Conn.App. 770, 773, 779 A.2d 152 (2001) ("[i]ndemnity shifts the impact of liability from passive joint tortfeasors to active ones . . . Thus, the common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor." (Emphasis in original; citations omitted; internal quotation marks omitted.); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997) ("[o]rdinarily there is no right of indemnity . . . between joint tort-feasors . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . .") (Citation omitted; internal quotation marks omitted).
The plaintiffs have failed to state a cause of action for indemnification. The plaintiffs have plead that the defendant's failure to procure liquor liability insurance should subject it to a suit for indemnification. For the defendant to be liable under an indemnification theory, however, the plaintiffs must plead and prove that the defendant's active negligence was the direct and immediate cause of the resulting injuries. In this case, the injuries suffered by Amber Cillo and Linda Fox were in no way affected by the defendant's failure to procure for the plaintiff's appropriate liquor liability insurance coverage. Therefore, count three of the plaintiffs' amended complaint must be stricken.
D Count Four: Contribution
In count four of the plaintiffs' amended complaint, the plaintiffs assert that due to the defendant's negligence, the defendant should be required, pursuant to Connecticut General Statute § 52-572h, to contribute to the plaintiff for some or all of the losses suffered as a result of any lawsuits filed by Amber Cillo or Linda Fox.
While at common law there is no right of contribution between joint tortfeasors; see Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 697, 535 A.2d 357 (1988); Connecticut General Statute § 52-572h provides for such a right in negligence actions. See Tilcon, Inc. v. First Union National Bank, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV98 04899978 (May 24, 2001, Aurigemma, J.). Section 52-572h provides in relevant part: "[I]f the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ." See Alvarez v. New Haven Register, Inc., 249 Conn. 709, 721, 735 A.2d 306 (1999) ([t]he system of contribution among joint tortfeasors . . . meets the problem of how to compensate an injury inflicted by the acts of more than one tortfeasor . . . The liability of the joint tortfeasor is direct because the tortfeasor actually contributed to the plaintiff's injury, and is divisible because the conduct of at least one other also contributed to the injury . . ." (Emphasis added, citations omitted).
The plaintiffs' complaint fails to set forth facts establishing a cause of action for contribution. The plaintiffs have plead that the defendant's negligence in failing to procure appropriate insurance coverage should subject it to a suit for contribution. However, the plaintiffs have not plead that the defendant's failure to procure liquor liability coverage was the proximate cause of or actually contributed in any way to the injuries suffered by Amber Cillo and Linda Fox. Therefore, count four of the plaintiffs' amended complaint must be stricken.
B Count Five: Breach of Contract
In count five of the plaintiffs' amended complaint, the plaintiffs claim that the defendant orally contracted and agreed that it had the ability to recommend the necessary and appropriate insurance coverage to the plaintiffs and that it breached this contract by failing to procure liquor liability insurance. While Connecticut recognizes a cause of action against an insurance agent for failure to obtain insurance under a theory of either professional malpractice or breach of contract; see Ursini v. Goldman, 118 Conn. 554, 559-60, 173 A. 789 (1934); an allegation of professional malpractice, like that found in count one of the plaintiffs' complaint, does not generally give rise to a breach of contract claim. See Barnes v. Schlein, CT Page 20362 192 Conn. 732, 735-36, 473 A.2d 1221 (1984); Camposano v. Claiborn, 2 Conn. Cir.Ct. 135, 137 (1963).
"[Professional [m]alpractice is commonly defined as the failure of one rendering professional services [including those services provided by the defendant] to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . ." (Citation omitted; internal quotation marks omitted.) Barnes v. Schlein, supra, 192 Conn. 735-36. "A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the . . . [parties] contract for a specific result." (Emphasis added; citation omitted.) Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999). "When determining whether a complaint sets forth an independent breach of contract claim or merely dresses a malpractice claim in contract language, the court examines the pleadings to ascertain whether the breach of contract alleged is based on substandard . . . care or exists irrespective of adherence to or deviation from the standard of care." Ferraro v. Mariner Health, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 04 4001418 (August 3, 2005, Sferrazza, J.), citing Rosato v. Mascardo, 82 Conn.App. 396, 411-12, 844 A.2d 893 (2004).
The courts have applied these principles on a number of occasions. In Rehor v. Boland, Superior Court, judicial district of New Haven, Docket No. CV 95 0378521S (Jan. 30, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 106), the court, addressing a claim for breach of contract and dental malpractice, stated that "[t]he basis of the contract claim is an implied understanding that the dentist here would use the appropriate standard of care to treat the plaintiff patient. It is not an express contract to achieve a specific result but an implied contract theory or quasi-contract theory . . . Permitting an implied contract action and a malpractice action would merely permit the placing of a different label on what is the same thing . . .") (Emphasis added). And in Malone v. Caldwell, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 39 14 36 (Apr. 20, 1992, Wagner, J.) ( 6 Conn. L. Rptr. 323), the court stated that "[parties] are at liberty to contract for a particular result, and if that result be not obtained, the plaintiff has a cause of action for breach of contract . . . This cause of action is entirely separate from malpractice, even though they both . . . may arise out of the same transaction . . . The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite . . . skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other." (Emphasis added; citation omitted.)
The plaintiffs' complaint fails to set forth facts establishing a cause of action for breach of contract. A fair reading of the plaintiffs' amended complaint reveals that the plaintiffs' cause of action hinges not on whether the defendant executed specifically agreed-upon tasks required of it pursuant to a contract, but whether the defendant exercised ordinary care in effectuating the plaintiff's purchase of insurance. The complaint states that the defendant contracted that it had the "ability to recommend the necessary and appropriate insurance coverage" not that it contractually guaranteed, as a part of the basis of the bargain, to effectuate the purchase of a particular insurance product. The defendant's statement is merely a recitation that the defendant will exercise the skill and judgment common to practitioners of its trade. Absent a showing that the defendant specifically guaranteed a particular result and that such a result was not delivered, the plaintiffs cannot maintain an action for breach of contract. As such, count five of the plaintiffs' amended complaint must be stricken.
III Conclusion
For the grounds stated herein, the defendant Smith Brothers Insurance, Inc.'s motion to strike counts one through five of the plaintiffs' amended complaint is granted as to counts two through five, and denied as to count one.
So ordered.