Opinion
CV136038355S
11-12-2015
Jennifer Marder v. Nationwide Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#127)
Robin L. Wilson, J.
FACTS
On April 10, 2015, the plaintiff, Jennifer Marder, filed a second amended complaint against the defendant, Nationwide Insurance Company of America (Nationwide), for an underinsured motorist claim and a bad faith claim. In her second amended complaint, which is the operative complaint, the plaintiff alleges the following facts. On April 6, 2011, the plaintiff was a passenger in a car operated by Hyun Kim. Kim stopped her car at a red traffic signal in Bridgeport, Connecticut when Sarah Kunecki (Sarah), operating a car owned by her mother, Linda Kunecki (Linda), rear ended Kim's car. As a result of Sarah's negligence, the plaintiff incurred a number of physical and emotional injuries. At the time of the accident, the plaintiff was covered by an insurance policy (the policy) provided by the defendant. The plaintiff's policy included underinsured motorist coverage in the amount of $500,000, and was in full force and effect. Sarah was covered under an insurance policy with IDS Property Casualty Insurance Company (IDS) with a $100,000 policy limit. IDS paid the plaintiff its policy limit by way of settlement, thereby exhausting that policy. As the policy with IDS was insufficient to compensate the plaintiff for her injuries, the plaintiff filed an underinsured motorist claim with the defendant pursuant to the policy.
On May 8, 2013, the plaintiff filed her original complaint for claims against GEICO General Insurance Company (GEICO) and the defendant. On November 26, 2013, GEICO filed a motion for summary judgment, which the court, Frechette, J., granted on February 10, 2014. On May 19, 2014, the plaintiff filed an amended complaint (first amended complaint), and therefore, the plaintiff's " amended complaint" filed on April 10, 2015, will hereafter be properly referred to as the " second amended complaint."
Count one of the complaint alleges an underinsured motorist claim against the defendant, and count two alleges bad faith. The plaintiff alleges the following facts in relation to her bad faith claim. The defendant has failed to pay the plaintiff sums which she is legally entitled to recover under her underinsured motorist coverage. In the handling, settlement, and/or compromise of the plaintiff's underinsured motorist claim, the defendant breached its duty to act in good faith and fair dealing in the following ways: (1) the defendant refused to acknowledge the availability of insurance coverage applicable to Sarah and Linda at the time of the collision despite receiving affidavits from both individuals regarding such insurance coverage; (2) refused to acknowledge the plaintiff's involvement in a motor vehicle collision with the vehicle being operated by Sarah, despite affidavits and sworn testimony regarding the collision; (3) refused to acknowledge Linda's ownership of the vehicle being operated by Sarah at the time of the collision, despite a sworn affidavit pertaining to said ownership; and (4) failed to properly investigate the plaintiff's underinsured motorist claim. The plaintiff further alleges that the defendant's breach of good faith and fair dealing was prompted by its own pecuniary interest and that the defendant's conduct intentionally frustrated the purpose of underinsured motorist coverage, which will cause the plaintiff to incur significant costs.
On June 16, 2014, the defendant filed its answer and special defenses to the amended complaint. In its answer the defendant admits to issuing the policy that the plaintiff claims she is covered under and confirms the amount of the underinsured motorist coverage provided under the policy. The defendant also pleads five special defenses to the effect of limiting its obligation to compensate the plaintiff under the policy and limiting any damages awarded by a trier of fact. On June 19, 2014, the plaintiff filed a reply to the defendant's answer and special defenses.
On May 13, 2015, the defendant filed a motion to strike count two of the plaintiff's second amended complaint, and a memorandum of law in support on the ground that the plaintiff has failed to state a claim upon which relief can be sought. On June 26, 2015, the plaintiff filed an objection to the motion to strike and a memorandum in opposition. On August 6, 2015, the defendant filed its reply memorandum (reply) in support of its motion to strike. Oral argument was heard on the motion at short calendar on August 10, 2015.
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). " The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC, 312 Conn. 662, 670, 94 A.3d 622 (2014). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " It is . . . improper for the court to consider material outside of the pleading that is being challenged by the motion." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). In addition, " [i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
In the present case, the defendant argues that count two of the second amended complaint must be stricken because the plaintiff uses conclusory allegations to support her bad faith claim and fails to include any factual allegations to indicate that the defendant acted with a dishonest purpose or sinister motive in the handling, settlement, and/or compromise of the plaintiff's underinsured motorist claim. In addition, the defendant argues that the plaintiff's bad faith claim is nothing more than a discovery dispute that has nothing to do with insurance coverage, the policy or Nationwide's adjustment or investigation of the claim. The defendant argues that the plaintiff's bad faith claim is based on Nationwide's purported failure to respond to Request for Admissions in a manner that she deemed appropriate. The defendant argues that such a discovery dispute does not form the basis of a bad faith claim, but rather is governed by the rules of court as outlined in the Practice Book.
In the defendant's reply to the plaintiff's opposition, the defendant argues that its obligation to respond to requests for admissions is governed by the Practice Book, not by the insurance policy. As such, the defendant asserts that the plaintiff's proper course of action was to file a motion to determine the sufficiency of the defendant's responses to the request for admissions.
The plaintiff contends that she sufficiently alleges the manner in which the defendant acted in bad faith and asserts that her bad faith claim is not premised only on the defendant's failure to pay her underinsured motorist claim. The plaintiff states that her bad faith claim is premised on the defendant's failure to admit certain facts, despite being provided with materials germane to the plaintiff's underinsured motorist coverage. The plaintiff concedes, however, that she amended the first amended complaint to add her bad faith claim in light of the defendant's position that it could neither admit nor deny information in the plaintiff's request for admissions.
The plaintiff attaches copies of Sarah's and Linda's affidavits, a police accident report, and the defendant's responses to request for admissions. The plaintiff did not properly incorporate these documents by reference or attachment in her second amended complaint. See Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007) (" [A]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . .' Practice Book § 10-29(a). A complaint includes all exhibits attached thereto." [internal quotation marks omitted]). Furthermore, " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A 'speaking motion' to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of complaint). Thus, the court will not consider the plaintiff's attachments for purposes of this motion to strike. Likewise, the court will not consider the issues that both parties raised in their arguments relating to the plaintiff's request for admissions because they are outside the pleadings.
" [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . [E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004). " [T]he implied covenant of good faith and fair dealing has been applied by this court in a variety of contractual relationships, including . .., insurance contracts . . . The concept of good faith and fair dealing is [e]ssentially . . . a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." (Citations omitted; internal quotation marks omitted.) Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988).
" To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which the defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." Alexandru v. Strong, 81 Conn.App. 68, 80-81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). " Bad faith in general implies both actual and constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotations marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. 433. " [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . [I]t contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42 n.4, 867 A.2d 1 (2005). " Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient." Alexandru v. Strong, supra, 81.
Accordingly, " [a]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which [the] plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." (Internal quotation marks omitted.) Tarabek v. Hartford Ins. Co., Superior Court, judicial district of New London, Docket No. 561153 (August 26, 2002, Hurley, J.T.R.). In count two of the second amended complaint, the plaintiff alleges that a contractual relationship existed between the parties, and the defendant has admitted that a policy existed. See Pl.'s Second Am. Compl., ¶ 19; Def.'s Answer and Special Defenses, ¶ 19. Thus, the plaintiff has appropriately pled the first element. The complaint further alleges that the defendant engaged in conduct that injured the plaintiff's ability to receive benefits under her contract with the defendant, namely, that the defendant refused to acknowledge information relevant to the plaintiff's underinsured motorist claim and failed to properly investigate her claim. See Pl.'s Second Am. Compl., ¶ ¶ 26 & 27. The plaintiff therefore, has also appropriately pled the second element.
As to the third element set out in Tarabek, there is a split of authority in the Superior Court " as to what factual allegations are sufficient to constitute the element of bad faith. The first line of cases requires specific allegations establishing a dishonest purpose or malice . . . The second line of cases holds the plaintiff to a less stringent standard . . . [T]he plaintiffs need only allege sufficient facts or allegations from which it may reasonably be inferred that the defendant breached the implied covenant of good faith and fair dealing." (Citations omitted; internal quotations marks omitted.) Algiere v. Utica National Ins. Co., Superior Court, judicial district bf New London, Docket No. CV-04-0569670-5 (February 7, 2005, Jones, J.). Under the less stringent standard, " bad faith may be inferred by repetitive, knowing or deliberate conduct as such allegations are unlikely to be attributable to an honest mistake or mere negligence . . . Nevertheless, [even] where courts have used an inference analysis . . . they have looked to allegations that the conduct at issue was engaged in purposefully." (Citation omitted; internal quotation marks omitted.) Urban Apparel Plus, LLC v. Sentinel Ins. Co., Ltd., Superior Court, judicial district of New Haven, Docket No. CV-13-6035293-S (October 31, 2013, Fischer, J.) (57 Conn. L. Rptr. 124, 126, *5) (denying motion to strike because plaintiff's claim was legally sufficient under less stringent standard since it alleged that defendant intentionally engaged in specific behavior from which one can reasonably infer sinister motive); see also Kowalchuk v. Travelers Personal Security Ins. Co, Superior Court, judicial district of New Britain, Docket No. CV-11-6012608-S (June 4, 2014, Shortall, J.T.R.) (denying motion to strike because in viewing plaintiff's allegations together and when construed broadly in favor of sustaining their legal sufficiency, allegations are sufficient to draw a reasonable inference of conduct committed with sinister motive); Labonne v. Hingham Mutual Fire Ins Co., Superior Court, judicial district of New London, Docket No. CV-12-6014737-S (March 7, 2012, Devine, J.) (57 Conn. L. Rptr. 794, 796) (denying motion to strike because in view of totality of plaintiff's multiple and specific allegations and when accepted as true and viewed broadly in favor of sustaining their legal sufficiency, allegations were sufficient to draw reasonable inference that defendant committed acts at issue with interested or sinister motive).
In contrast, under the more stringent standard, " allegations establishing a dishonest purpose or malice [must] be specifically [pleaded]." (Internal quotation marks omitted). Chestnut Investment, LLC v. Nautilus Ins Co., Superior Court, judicial district of New Haven, Docket No. CV-11-6020077-S (January 6, 2012, Wilson, J.) (granting motion to strike bad faith claim in insurance action involving fire damage to real property); see also Cifatte v. Utica First Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-13-6038325-S (September 5, 2014, Kamp, J.) (granting motion to strike because plaintiff failed to allege with any specificity as to manner of refusal of coverage or as to whether defendant should have known that it was required to honor claim); Mauro v. Cashman, Superior Court, judicial district of New Haven, Docket No. CV-09-6006862-S (December 14, 2010, Wilson, J.) (granting motion to strike because plaintiff pleaded only negligence and did not specifically plead malicious intent or sinister motive). As such, " plaintiffs must plead facts that go beyond a simple breach of contract claim and enter into a realm of tortious conduct which is motivated by a dishonest or sinister purpose." Lynch v. Covenant Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-09-5027821-S (August 11, 2009, Aurigemma, J.) (granting motion to strike because plaintiffs allegations of malicious intent or sinister motive were merely conclusory and not sufficient to support bad faith); see also Fowler v. Allstate Property & Casualty Ins. Co, Superior Court, judicial district of Fairfield, Docket No. CV-08-5016911-S (January 7, 2009, Bellis, J.) (granting motion to strike because plaintiff made no specific allegations establishing dishonest purpose or that conduct at issue was engaged in knowingly or wilfully); Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV-05-4002121-S (January 13, 2006, Pickard, J.) (granting motion to strike because although plaintiff's allegations may be more than mere legal conclusions, plaintiff failed to sufficiently make any allegations demonstrating some interested or sinister motive or dishonest purpose to surpass mere negligence); Sullivan v. Allstate Ins. Co, Superior Court, judicial district of Hartford, Docket No. CV-05-4008548-S (March 28, 2006, Tanzer, J.) (granting motion to strike because plaintiff did not allege facts to support sinister or dishonest motive); Tarabek v. Hartford Ins. Co., supra, Superior Court, Docket No. CV-02-561153-S (granting motion to strike because plaintiff failed to allege that defendant acted with dishonest purpose, moral obliquity, or sinister motive).
Even in instances when courts have denied a motion to strike a bad faith claim for legal insufficiency under similar facts or facts pled with less specificity, the plaintiffs in those cases have alleged sufficient facts in which a sinister or dishonest purpose could logically be supported by those facts, or have pled facts such that an inference of a sinister or dishonest motive could reasonably be inferred without an explicit allegation of a sinister or dishonest motive. In light of these cases and the requisite parameters for a bad faith claim, as set out in appellate and superior court case law, and viewing the plaintiff's allegations in a light most favorable to her, the plaintiff in the present case has not alleged sufficient facts to support a claim of bad faith.
The following cases are those in which plaintiffs have alleged bad faith and pled similar facts or facts that have been pled with less specificity than in the present case, and survived a motion to strike. In Jello-Pitkin v. GEICO Indemnity Co., Superior Court, judicial district of New London, Docket No. CV-09-5012395-S (August 16, 2011, Cosgove, J.) (52 Conn. L. Rptr. 453, 455), a case involving an underinsured motorist claim, the court found that " count three alleges that the defendant stalled, delayed and refused to diligently process the plaintiff Jello-Pitkin's claim or to properly negotiate settlement of the claim, 'all in order to profit from the Plaintiff's vulnerable position' and thus 'acted with a sinister intent, an intent of wanton or malicious injury and/or evil motive, exhibiting a reckless indifference of the interests of others, in particular the Plaintiff; such defiant behavior is unlikely to be attributable to an honest mistake or mere negligence.' Further, the plaintiffs allege that the defendant 'knowingly, willfully, and deliberately ignored the Plaintiff's demand for the payment of a reasonable settlement amount behaving in a way evidencing dishonest purpose, malice or evil motive.'" The court found the plaintiff's allegations sufficient and denied the motion to strike the bad faith claim. Id. ; see also Edwards v. Progressive Casualty Ins. Co., Superior Court, judicial district of New London, Docket No. CV-10-6006128-S (June 24, 2011, Martin, J.) (denying motion to strike bad faith cause of action on similar grounds in claim for uninsured motorist benefits). In Kowalchuk v. Travelers Personal Security Ins. Co., supra, Superior Court, Docket No. CV-11-6012608-S, a similar case involving an underinsured motorist claim, the court found the following allegations sufficient to deny a motion to strike a bad faith claim: " In particular, Mr. Kowalchuk alleges that Travelers: (1) failed appropriately to value and consider all of his medical records and bills; (2) failed to give appropriate consideration to the opinions of his treating physicians; and (3) forced the plaintiff to incur the significant time and expense of trial based on the 'cynical calculation' that, since the company did not have a significant amount of exposure at trial, it would force Mr. Kowalchuk to try his case, in the hope that he would decide to forego that imposition and agree to accept a lesser settlement." Id.
Also, in Mamudi v. State Farm Fire & Casualty Co., Superior Court, judicial district of Waterbury, Docket No. CV-12-6016785-S (December 20, 2012, Roche, J.), a case involving an insurance claim after a motor vehicle accident, the court found the following allegations sufficient to deny a motion to strike a bad faith claim: " In the second count of the complaint the plaintiff pleads, among other allegations, that the defendant 'purposefully, willfully, maliciously . . . or knowingly breached its duty of good faith and fair dealing in its contractual obligations . . . [when it] misrepresented the status of its review of the plaintiff's claim in an effort to delay and/or reduce the payment of monies due under the policy of insurance.' . . . [T]his court cannot find that the plaintiff's complaint fails to meet this standard when construing the complaint in the manner most favorable to sustaining its legal sufficiency . . . [T]he plaintiff uses the terms 'purposefully, willfully, maliciously, and . . . knowingly' in connection with an alleged representation by the defendant to the plaintiff. Moreover, the plaintiff's allegation that the defendant's alleged actions were intended to 'delay and . . . reduce the payment' to the plaintiff, when construed in the manner most favorable to sustaining the complaint's legal sufficiency, alleges a sinister or interested motive." Id.
In addition, in Pettibone Tavern, LLC v. OneBeacon Midwest Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-10-6006711-S (October 28, 2010, Domnarski, J.), a case involving an insurance claim for property damage, the court denied a motion to strike a bad faith claim. The plaintiff's complaint alleged the following: " Despite the plaintiff's diligence, [the defendant] has engaged in a campaign to delay and deny coverage to the plaintiff despite its knowledge that no basis exists to do so under the policy. [The defendant] demonstrates it was acting in bad faith because it has failed to conduct a reasonable and timely investigation of the plaintiff's claims, has failed to pay benefits in a timely manner, has refused to engage in reasonable settlement negotiations to resolve the plaintiff's claims, has engaged in unfair insurance settlement practices, and has engaged in conduct that injured the plaintiff's right to receive some or all of the benefits guaranteed to the plaintiff." Id. The plaintiff further detailed its repeated requests for the defendant to honor the insurance claim and its attempts to submit the same insurance claim more than once. Id. The court concluded that " [t]he word 'campaign' suggests a series of actions to bring about the delay and nonpayment. This allegation, on its own, falls short. However, the additional allegation that [the defendant] had knowledge that it had no basis for denying coverage, but denied the plaintiff nonetheless, gives rise to the inference that [the defendant] acted 'willfully.'" Id.
In the present case, the crux of the plaintiff's bad faith claim is set forth in the allegations contained in paragraphs 26 and 27 of count two of the plaintiff's second amended complaint. In paragraph 26, the plaintiff alleges that the " Defendant Nationwide has breached its duty to act in good faith and fair dealing in regard to the handling, settlement, and/or compromise of [the plaintiff's] underinsured motorist claim in one or more of the following ways: (a) refusing to acknowledge the availability of insurance coverage applicable to Sarah Kunecki and Linda Kunecki at the time of the collision despite receiving affidavits from both individuals regarding such insurance coverage; (b) refusing to acknowledge the plaintiff's involvement in a motor vehicle collision with the vehicle being operated by Sarah Kunecki, despite affidavits and sworn testimony regarding the collision; (c) refusing to acknowledge Linda Kunecki's ownership of the vehicle being operated by Sarah Kunecki at the time of the collision, despite a sworn affidavit pertaining to said ownership; [and] (d) failing to properly investigate [the plaintiff's] underinsured motorist claim . . ." In paragraph 27, the plaintiff further alleges that the defendant's " breach of its covenant of good faith and fair dealing in regard to [the plaintiff's] underinsured motorist claim is prompted by its own pecuniary interest and is conduct that intentionally frustrates the very purpose of underinsured motorist coverage . . ."
The plaintiff cites to Partosan v. Union Mutual Fire Ins. Co., Superior Court, judicial district of Windham, Docket No. CV-10-6001697-S (February 16, 2011, Vacchelli, J.), and Perkins v. Hermitage Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-11-6006314-S (February 29, 2012, Arnold, J.), to support her contention that the factual allegations in count two of the second amended complaint are legally sufficient. The plaintiff's use of these cases is misplaced in that she disregards the nature of the courts' analyses of the allegations pleaded in Partosan and Perkins that guided the courts' decisions to deny the motions to strike in both cases. As such, Partosan and Perkins are distinguishable from the present case and do not support the plaintiff's opposition to the defendant's motion to strike.
The plaintiff cites to Partosan for its proposition that allegations that a defendant insurance company failed to conduct a reasonable investigation, failed to consider evidence, improperly accused the plaintiff of negligent conduct, and refused to credit information from the plaintiff and the police as to the cause of the accident are sufficient to support a bad faith claim. Partosan v. Union Mutual Fire Ins. Co., Superior Court, supra, Docket No. CV-10-6001697-S. The court analyzed the plaintiffs' allegations and concluded that the allegations were legally sufficient: " Viewing the allegations of the Amended Revised Complaint in the light most favorable to the plaintiff, as the court must do for purposes of the motion to strike, the plaintiffs have sufficiently pled facts which, if credited, could constitute a finding of bad faith. They have alleged a course of conduct of unfair and unreasonable conduct in callous disregard to the right and plight of the insureds. They have alleged a conscious doing of wrong for a dishonest purpose ." (Emphasis added.) Id. Although the plaintiff in the present case alleges similar conduct as the plaintiffs in Partosan to demonstrate bad faith, the plaintiff's allegations in the present case are insufficient to demonstrate that the defendant was engaged in a series or pattern of misconduct rising to the level of bad faith, acted in callous disregard of the plaintiff's rights, or engaged in conscious doing of wrong for a dishonest purpose.
In Perkins, the court denied a motion to strike based on the following analysis: " Looking to the allegations for bad faith, the plaintiffs allege that the defendant failed to provide a defense to its insured . . . failed to indemnify its insured; failed to conduct a full and fair investigation of the complaint against its insured; and refused to satisfy the judgment against its insured . . . The plaintiffs then allege that the defendant regularly engages in bad faith by wrongly refusing to honor claims presented against it and fail to indemnify and defend its insureds as a regular business practice. These alleged practices force the insureds to pay legal fees; causes them emotional distress; and causes them to incur judgments against them. The plaintiffs allege this course of conduct was done with a 'dishonest purpose' when the defendant knew or should have known based on the information the defendant had, that its insured's liability was clear and probable. While the plaintiffs have not specifically alleged that the defendant had an intent to mislead or deceive or defraud its insureds, they have alleged a 'dishonest purpose' and other additional allegations, including specific insurance policy provisions, sufficient to imply bad faith." Perkins v. Hermitage Ins. Co., Superior Court, supra, Docket No. CV-11-6006314-S.
Although the plaintiff in the present case has attempted to allege similar acts to demonstrate bad faith, she fails to allege the requisite specificity to support her claim of bad faith. Here, the plaintiff did not specifically allege that the defendant acted with a dishonest purpose, engaged in a series or pattern of misconduct rising to the level of bad faith. Nor has the plaintiff set forth sufficient allegations from which bad faith could reasonably be inferred. The second amended complaint does not set forth how the defendant acted with bad faith when it engaged in the alleged conduct that injured the plaintiff's ability to receive benefits. The plaintiff does not plead with specificity how the defendant's conduct, as alleged in paragraph 26(a)-(c), demonstrates a sinister or dishonest purpose or motive, or where in the defendant's conduct a sinister or dishonest purpose or motive may be inferred. Moreover, even under the less stringent standard, the plaintiff's allegations are legally insufficient. When viewing the allegations in count two in their totality and construing them broadly in favor of sustaining their legal sufficiency, a reasonable inference of sinister or dishonest purpose would be attenuated. The plaintiff does not allege sufficient facts to implicate purposeful, knowing, or repeated conduct or malicious intent or sinister motive that constitutes more than negligence. Furthermore, the plaintiff does not connect the defendant's alleged conduct to the terms of the policy regarding handling, settlement, and/or compromise of the plaintiff's underinsured motorist claim.
In addition, paragraphs 26(d) and 27 are conclusory statements without any factual allegations to support these assertions. Paragraph 26(d) does not contain factual allegations to show how the defendant failed to properly investigate the plaintiff's underinsured motorist claim, how that conduct rose to the level of bad faith, and what the defendant's duties are in investigating an insurance claim under the plaintiff's policy. Therefore, the plaintiff's bad faith claim on this ground is also legally insufficient. Similarly, paragraph 27 states a conclusory statement of a possible sinister or dishonest purpose. Merely stating that the defendant was motivated by a pecuniary interest under the circumstances of the present case is not enough to allege malicious intent or sinister motive in support of a bad faith claim. Moreover, the nature of the plaintiff's factual allegations in the present case do not directly or indirectly implicate a pecuniary interest that rises to the level of bad faith or implicate conduct that rises to the level of intentional frustration of the underinsured motorist coverage.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike count two is granted.