Opinion
No. CV 02 0088925S
May 29, 2003
MEMORANDUM OF DECISION RE Defendant's Motion To Strike (#104) dated April 9, 2003
This Motion to Strike tests the legal sufficiency of the revised complaint, dated March 11, 2003, brought by an injured worker against her employer's workers' compensation insurer for breach of contract, breach of the covenant of good faith and fair dealing, infliction of emotional distress, and CUIPA violations brought under CUTPA, all arising out of the insurer's handling of the plaintiff's workers' compensation claim. For the reasons set forth in this opinion the motion to strike is denied.
The defendant's first line of attack is that the entire complaint should be stricken on the ground that the Workers' Compensation Act provides the exclusive remedy by which an aggrieved claimant may recover as a result of the insurer's handling of her claim. This issue is one on which there is no appellate authority and a split of authority in the Superior Court. Having reviewed the various decisions in the Superior Court, I find myself in accord with those which have held that the Workers' Compensation Act is not the exclusive remedy for an employee against her employer's insurer. The cases on both sides of the issue are summarized in Cirrito v. Crawford Company et al., Superior Court, Judicial District of New Haven at New Haven, Docket No. CV01045052S (December 23, 2002, Zoarski, J.T.R.). I will not attempt an extensive discussion of the issue. In summary, I am persuaded by the majority position set forth in these decisions, that the exclusivity principle of workers' compensation does not apply because the alleged intentional bad faith handling of a workers' compensation claim by an insurance company does not arise during the course of employment, but rather occurs after the injury for which the worker is being compensated. For this reason, the motion to strike the entire complaint is denied.
The defendant next moves to strike the last four counts of the complaint separately. As to the Second Count alleging a breach of the covenant of good faith and fair dealing, the defendant moves to strike on the ground that the plaintiff has failed to allege a proper factual predicate. The requirements of pleading a breach of the duty of good faith and fair dealing is well established. "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598 (1996). "Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive." Feinberg v. Berlewicz, 32 Conn. App. 857, 861 (1993). The defendant has cited the court to several Superior Court cases in which bad faith claims were stricken because they did no more than allege that defendant did no more than deny the plaintiff's claim for benefits. See, for example, Puglio v. National Grange Mutual Insurance Co., 1993 WL 410104 (Oct. 12, 1993) (Maiocco, J.), Ryan v. Allstate Indemnity Co., 1998 WL 182341 (April 29, 1998) (D'Andrea, J.), and Ruther v. Continental Insurance Co., 1998 WL 211953 (April 23, 1998) (Lewis, J.). The defendant claims that the Second Count in this complaint amounts to nothing more than an allegation that the defendant denied her claim. I disagree.
The plaintiff alleges in the Second Count that the defendant breached its duty to act in good faith and deal fairly with her in one or more of the following ways:
a. In that defendant has failed to issue voluntary agreements accepting the claim as compensable despite repeated demands and repeated assurances, both orally and in writing, that it would do so.
b. In that the defendant failed to pay medical bills related to the plaintiff's injury despite written acknowledgments that the claim was compensable.
c. In that the defendant failed to make indemnity payments to the plaintiff in a reasonably timely manner.
d. In that the defendant failed to make indemnity payments after agreeing to make same at workers' compensation hearings.
e. In that the defendant attempted to force the plaintiff to settle his workers' compensation claim for far less than its actual value by repeatedly failing to make indemnity and/or medical payments in a timely manner.
f. In that the defendant unreasonably denied and/or delayed approval of necessary medical care and treatment to the plaintiff.
These allegations amount to more than a mere denial of a claim. If the plaintiff is able to prove that, in order to force the plaintiff to settle her claim at a discount, the defendant refused to issue voluntary agreements and failed to make indemnity payments or pay medical bills after acknowledging in writing that the claim was compensable and agreeing at workers' compensation hearings to make the payments, this rises to something more than a mere denial of a claim. If proven, does this conduct amount to a dishonest or sinister purpose? I think that a reasonable person could find that it does. For this reason, the motion to strike the Second Count must be denied.
As to the Third Count and Fourth Count alleging intentional and negligent infliction of emotional distress, the defendant moves to strike on the grounds that the plaintiff has not alleged conduct severe enough to rise to the level of extreme and outrageous, and that the plaintiff has not alleged illness or bodily harm. In order to state a cause of action for intentional infliction of emotional distress, the plaintiff must plead the following: 1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; 2) that the conduct was extreme and outrageous; 3) that the defendant's conduct was the cause of the plaintiff's distress; and 4) that the emotional distress sustained by the plaintiff was severe. Appelton v. Board of Education, 254 Conn. 205, 210 (2000). Moreover, a plaintiff must allege facts that demonstrate conduct that exceeds all bounds usually tolerated by decent society and has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Id. at 210-11. Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Only where reasonable minds disagree does it become an issue for the jury. Id.
The Third and Fourth Counts allege that the actions of the defendant cited above in the discussion of the Second Count "were done with the intent of causing the plaintiff severe emotional distress" and caused the plaintiff "to suffer severe embarrassment, humiliation and emotional distress." Do the allegations cited above "exceed all bounds usually tolerated by decent society?" Are they "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society?" I believe that reasonable minds could differ about the answers to these questions. The actions alleged by the plaintiff amount to the use of dishonest tactics to force the plaintiff to settle her claim for less than full value. As discussed above, this amounts to a failure to act in good faith. Whether or not it rises to the level of conduct necessary to allege a cause of action for infliction of emotional distress is a closer case. But, it is still one which must be determined by the finder of fact. For this reason, the motion to strike the Third and Fourth Counts must be denied.
As to the Fifth Count alleging CUIPA/CUTPA violations, the defendant claims that the plaintiff has failed to allege facts sufficient to support a CUTPA claim including the failure to allege any facts to support her claim of a general business practice. A CUTPA claim must be pleaded with particularity to allow evaluation of a legal theory upon which the claim is based. S.M.S. Textile Mill, Inc. v. Brown. Jacobson, Tillinghast, Lahan King, P.C., 32 Conn. App. 786, 797, cert. denied, 228 Conn. 903 (1993). The plaintiff must prove at least one of the prongs of the "cigarette rule":". . . 1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of fairness; 2) whether it is immoral, unethical, oppressive, or unscrupulous; 3) whether it causes substantial injury to consumers [competitors or other businessmen]." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591 (1995). Several of the allegations of misconduct include alleged violation of CUIPA which are, by definition, considered to be "unfair methods of competition and unfair and deceptive acts or practices in the business of insurance." C.G.S. Section 38a-816. They constitute sufficient allegations to state a cause of action for a CUIPA/CUTPA violation.
The plaintiff has also alleged that the defendant has committed the same acts "with such frequency as to indicate a general business practice." The Supreme Court has held that to prevail on a CUIPA claim the plaintiff must show "more than a single act of insurance misconduct." Mead v. Burns, 199 Conn. 651, 659 (1986). "Under the guidelines set forth in Mead v. Burns . . . for a plaintiff to allege CUIPA and CUTPA violations successfully the plaintiff must allege more than a singular failure to settle the plaintiff's claim fairly." Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 672 (1992). The allegation of a general business practice in the plaintiff's complaint is sufficient to withstand a motion to strike.
The motion to strike is denied.
John W. Pickard Judge of the Superior Court CT Page 7034
CT Page 7034-a