Opinion
No. CV02 039 13 04 S
March 30, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#106)
On July 8, 2005, the third-party plaintiff, Marilyn J. Celon the insured homeowner, filed a two-count complaint against the third-party defendant, Royal Indemnity Company (Royal), the insurance provider. Count one sounds in breach of contract and count two alleges breach of the implied covenant of good faith and fair dealing. Celon alleges that Royal issued her a homeowner's policy for her residential home and that she performed all policy conditions and paid all applicable premiums. Celon further alleges that she was sued for negligent entrustment of a go-cart to a minor, by the plaintiffs, Jiming Chen and Jeff Chen, a minor, and that Royal refused to defend or indemnify the claim, despite the fact that the alleged negligent entrustment occurred on the insured premises. Celon also alleges that, in unreasonably failing to defend and indemnify the claim, Royal has acted in bad faith.
On August 9, 2005, Royal filed a motion to strike count two of the defendant's third-party complaint on the ground that General Statutes § 52-102a limits the liability of a third-party defendant to liabilities contained in the original party's claim against the defendant/third-party plaintiff. Royal has submitted a memorandum of law in support of the motion. On September 9, 2005, Celon filed a memorandum of law in opposition. The matter was heard on the short calendar on September 26, 2005 and neither party has moved to have this matter assigned to another judge or judge trial referee within 14 days after the expiration of the 120-day period pursuant to Practice Book § 11-19 (Time Limit for Deciding Short Calendar Matters).
"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). "It is fundamental that 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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "An attack upon the sufficiency of an impleader complaint should be made by a motion to strike." Commissioner v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102 n. 2, 485 A.2d 580 (1985).
Royal argues that a third-party plaintiff's allegations against a third-party defendant are limited to the liabilities contained in the first party's claim against the defendant/third-party plaintiff. Consequently, Royal maintains that since the first-party plaintiff never alleged that Celon acted in bad faith, Celon may not use § 52-102a to join "an independent claim that exists solely between Celon and Royal." Royal further argues that Celon has not pleaded sufficient facts to establish bad faith or conscious wrongdoing on the part of Royal, and, as such, the motion to strike must be granted.
Celon counters that Royal is interpreting § 52-102a too narrowly and a "third party plaintiff may properly assert a bad faith cause of action notwithstanding the fact that the first party plaintiffs did not allege bad faith in their complaint." Celon further argues that the facts pleaded are sufficient to establish a bad faith cause of action and that if the third party defendant desired a "more complete and particular statement of the allegations" the appropriate step would have been to file a request to revise, an avenue which is now foreclosed because Royal chose to file this motion to strike, thereby waiving any right to expanded factual allegations.
Section 52-102a provides in relevant part that "[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded."
In the present case, the central issue is the interpretation of this statute in determining "whether a third party complaint can include claims against a properly impleaded third party defendant which are in excess of those alleged in the original complaint." Middlesex Mutual Assurance Co., v. Black, 40 Conn.Sup. 63, 65, 480 A.2d 614 (1984). "The purpose of § 52-102a, like that of [Federal] Rule 14(a), is clearly to obviate the multiplicity of actions . . . [It is also] to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials." (Citations omitted; internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). "While 52-102a incorporates the language of Rule 14(a), it does not incorporate the accompanying language of Rule 18 of the Federal Rules of Civil Procedure, which allows for the joinder of any claims against a properly impleaded party. This has been the reasoning behind trial court decisions prohibiting the joining of any claims other than indemnification or contribution." Great Spring Water v. Chadburn, Inc., Superior Court, judicial district of Stamford, Docket No. CV 960155158 (August 24, 1998, Lewis, J.) ( 23 Conn. L. Rptr. 153, 154).
Many courts, however, have concluded that despite the absence of Rule 18 language, the authority to join claims against a properly impleaded party, arising out of the same transaction or transactions, can be found by reading the impleader statute in conjunction with the Practice Book rule for joinder of actions. See Zawilinski v. Neuman, Superior Court, judicial district of New Britain, Docket No. CV 01 0510911 (July 30, 2003, Murray, J.); Wise v. Bickford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 97 0571001 (September 17, 1997, Teller, J.) ( 20 Conn. L. Rptr. 218); Middlesex Mutual Assurance Co. v. Black, supra, 40 Conn.Sup. 63.
Section 52-102a(b) of the impleader statute provides in relevant part that "[t]he writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint . . ." (Emphasis Added.) Accordingly, these courts have found that Practice Book § 10-21, applies to third-party complaints, and, as such, allows for the joinder of claims "[i]n any civil action . . . whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." Practice Book § 10-21. The statutory interpretation of these courts is not only supported by the clear language of § 52-102a(b) but also by "the general policy of our law which favors as far as possible the litigation of related controversies in one action." (Internal quotation marks omitted.) Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948).
In Wise v. Bickford, supra, 20 Conn. L. Rptr. 218, the court allowed a third-party plaintiff to assert a negligence claim against a third-party defendant, despite the fact that the original plaintiff had not alleged negligence against the defendant/third-party plaintiff. The court in its analysis stated that § 52-102a "contemplates that the pleadings therein are to be treated in the same manner as the ordinary civil action." Id., 219. Thus, the court could find no reason why the third-party plaintiff could not maintain his independent action for negligence. The court went on to state that "[t]his construction of § 52-102a is in accord with the purpose of encouraging and requiring parties to consolidate all of the litigation between them over claims which arise from a given set of events into a single judicial proceeding." Id.
In the present case, count two of the third-party complaint, alleges that Royal issued a homeowner's policy to Celon for her residential premises, that Celon performed all policy conditions and paid all relevant premiums, that the underlying action by the plaintiff's alleged negligent entrustment occurring on the insured premises, that Royal refused to defend or indemnify Celon against the underlying action, and that Royal's refusal is "unreasonable, unwarranted, and in bad faith." Whether Royal's refusal to defend or indemnify, constitutes an unreasonable, unwarranted and bad faith act, depends on the underlying facts of the original action. Thus, like the negligence action in Wise, the bad faith allegation in the present case arises from the same set of events as the original complaint, and accordingly, may be maintained in the third-party complaint pursuant to § 52-102a. See also Middlesex Mutual Assurance Co. v. Black, supra, 40 Conn.Sup. 66 (finding "where . . . the third party defendant . . . has been properly impleaded, and where all claims made by . . . the third party plaintiff . . . arise out of the same transaction complained of in the original complaint, the third party complaint may include claims for damages in excess of those sought in the original complaint.").
Notwithstanding Celon's ability to bring claims in excess of those in the original complaint, the motion to strike must be granted due to Celon's failure to state facts sufficient to sustain a bad faith claim. "An 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.) Advanced Financial Services, Inc. v. Savers Property Casualty Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 04 0833347 (February 9, 2005, Wagner, J.T.R.) "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." (Citation omitted, internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). The only allegation that Celon puts forth to support the third prong of bad faith is that Royal's refusal to indemnify or defend the claim was "unreasonable, unwarranted, and in bad faith." This conclusory statement is not sufficient to allege the required interested or sinister motive or dishonest purpose beyond mere negligence.
Celon's alleged facts do not meet all three pleading requirements such that, if proven they would support a cause of action for breach of the covenant of good faith and fair dealing, requiring this court to grant the motion to strike. For the aforementioned reasons, the court grants the motion to strike count two of the third-party complaint.