Opinion
No. CV04-0200157-S
January 13, 2005
MEMORANDUM OF. DECISION ON MOTION TO STRIKE (#104)
FACTS
The present action revolves around the uninsured motorist coverage provisions of an automobile policy of indemnity and a business policy of indemnity, in effect between Robert Pote, the plaintiff, and the Nationwide Mutual Insurance Company, the defendant. The plaintiff alleges that on April 4, 2001 he was involved in an accident while operating his vehicle in Norwalk, Connecticut and suffered serious injuries and incurred damages, as result of that collision. He further alleges that his injuries and losses are the legal responsibility of the defendant under the provisions of its said policies of insurance and that the parties have not been able to agree on the amount of damages to which the plaintiff is entitled under the insurance policies. Before the court is the defendant's motion to strike counts two, thee, five and six of the plaintiff's second amended complaint because they fail to allege sufficient facts to support claims of bad faith and CUTPA violations.
The plaintiff's second amended complaint, filed on July 1, 2004, asserts the following six counts, of which the first three concern the automobile policy of indemnity and the last three the business policy of indemnity: (1) breach of contract; (2) bad faith (breach of the implied covenant of good faith and fair dealing); (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (4) breach of contract; (5) bad faith (breach of the implied covenant of good faith and fair dealing); and (6) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The defendant did not object to the plaintiff's failure to file a memorandum of law in opposition to the motion to strike, as mandated by Practice Book § 10-42. The court, therefore, has the discretion to address the merits of the motion. See, e.g., Ratner v. Laviano, Superior Court, judicial district of Stamford, Docket No. CV 0177011 (April 16, 2001, D'Andrea, J.).
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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted). Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
With respect to counts two and five, the defendant argues that the mere failure to settle or refusal to pay is not sufficient to sustain a claim of bad faith, and that the plaintiff has failed to allege any additional dishonest act on the part of the defendant. As to counts three and six, the defendant asserts that a violation of the Connecticut Unfair Insurance Practices Act (CUIPA) arising out of an unfair claim settlement practice under General Statutes § 38a-816(6), as the predicate for a CUTPA violation, can only be based on a general business practice, and not on unfair conduct related to a single insurance claim.
Referred to by the plaintiff in the complaint as the "Connecticut Unfair Indemnity Practices Act."
The first issue is whether counts two and five (identically worded) sufficiently allege a claim for breach of the implied covenant of good faith and fair dealing. "For the plaintiff to recover for bad faith [he] has to allege and prove that the defendant engaged in conduct design[ed] to mislead or to deceive . . . 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." (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 544-45, 792 A.2d 132 (2002). In counts two and five, the plaintiff alleges that the defendant breached its duty of good faith in several ways. Among these the only factual claim is that the defendant failed to tender payment for the plaintiff's loss in a timely manner even though the defendant knew that the plaintiff was entitled to what the defendant offered to settle the claim, if not more. (Counts two and five, para. 16a) Read in conjunction with paragraph 15 which alleges that the parties are unable to agree as to the amount of damages to which the plaintiff is entitled for his injuries, this appears to be a claim that the defendant, while engaged in settlement negotiations, should have tendered payment in the amount of its settlement offer even though that offer was not accepted. The court finds nothing misleading or deceptive about the defendant's failure to tender payment under those circumstances. The other allegations of bad faith are that the defendant failed to tender any payment when the defendant had sufficient information within its possession to justify or substantiate such payment (para. 16b); that the defendant failed to fully and fairly investigate the factual validity of defendant's claims, or to effectuate a prompt, fair, and equitable settlement of plaintiff's claims for which the amount owed was reasonably clear (para. 16c); and failed or refused to provide in a timely manner a reasonable explanation of the basis for denial of Plaintiff's claims (para 16d). These allegations are notably devoid of facts. Although all these claims relate to settlement negotiations, there is nothing alleged as to the details of those negotiations or the "amount owed that was reasonably clear," or the "sufficient information" allegedly within defendant's possession, or the investigation that allegedly should have been performed, or the explanations given that were allegedly unreasonable. The purpose of a motion to strike is to contest the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. In ruling on a motion to strike the court is limited to the facts alleged in the complaint, and the court must construe the facts in the complaint most favorably to the plaintiff. Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988). But a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285 (1982). The allegations of paragraphs 16b, c, and d of counts two and five are mere conclusions of law unsupported by facts alleged. Construing the few facts alleged most favorably to the plaintiff, these allegations amount to little more than a claim that the defendant failed to make an offer of settlement which the plaintiff considered reasonable. In Buckman v. People's Express, Inc., 205 Conn. 166 at 171-72 the Supreme Court approved jury instructions on a claim of bad faith negotiations that included the following: ". . . bad 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 . . . it contemplates a state of mind affirmatively operating with furtive design or ill will." Disregarding the plaintiff's allegations of mere conclusions of law, there are insufficient facts alleged in counts two and five to satisfy that standard, and counts two and five therefore fail to allege facts upon which relief can be granted. The motion to strike is therefore granted as to counts two and five of the Second Amended Complaint.
The defendant also maintains that counts three and six (identically worded) are legally insufficient to state a valid claim under CUTPA "[A] CUTPA claim based on an alleged unfair claim settlement practice prohibited by § 38a-816(6) require[s] proof as under CUIPA, that the unfair settlement practice had been committed or performed by the defendant with such frequency as to indicate a general business practice . . . [When] the plaintiff's evidence [is] insufficient to satisfy the requirement under CUIPA that the defendant's alleged unfair claim settlement practices constituted a general business practice, the plaintiff's CUTPA claim [cannot] survive the failure of [the] CUIPA claim." (Citation omitted; internal quotation marks omitted.) Lees v. Middlesex Insurance, Co., 229 Conn. 842, 850-51, 643 A.2d 1282 (1994).
The plaintiff is alleging that the defendant engaged in an unfair practice only with respect to a single insurance claim, and not with such frequency to indicate a general business practice. Alleged improper conduct in the handling of a single insurance claim, without any allegation of misconduct in the processing of any other claim, does not rise to the level of a "general business practice" as required by § 38a-816(6) of CUIPA. Lees v. Middlesex Insurance Company, supra at 849. Consequently, counts three and six, absent any allegation of misconduct by the defendant in the processing of any other claim, cannot validly support a CUIPA violation. Moreover, one could not interpret the counts to allege that the CUTPA claim is based on anything other than the alleged CUIPA violation. As in Lees, in fact, such an "assertion . . . [would be] contradicted by the complaint . . . which makes plain that the plaintiff's CUTPA [claims are] based on the same alleged conduct as the CUIPA claim[s]." Id., 850 n. 10. Therefore, counts three and six are insufficient to state a valid CUTPA claim.
ORDER
It is therefore ordered: that the defendant's Motion to Strike, dated July 12, 2004 (#104) is granted.
BY THE COURT:
Alfred J. Jennings, Jr., Judge