Kenny v. Nationwide Mutual Insurance Company

Full title: ANTHONY R. KENNY vs. NATIONWIDE MUTUAL INSURANCE COMPANY

Court: Connecticut Superior Court, Judicial District of Fairfield

Date published: Jan 24, 1996

1996 Ct. Sup. 594 (Conn. Super. Ct. 1996)

Opinion

No. 328574

January 24, 1996

MEMORANDUM OF DECISION

LEVIN, JUDGE.

The first count of the plaintiff's amended complaint is an action against the defendant insurer seeking uninsured motorist benefits. The second count seeks damages for breach of the implied covenant of good faith and fair dealing because the defendant's offer of settlement in the amount of $17,500 "would not reasonably compensate the plaintiff for his injuries and losses and was not made in good faith." The defendant has moved to strike the second count "because there is no cause of action for bad faith until the case in chief has been resolved and judgment has entered in favor of the plaintiff. As such, this claim is premature." The Supreme Court has cautioned that "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike. . . ." Morris v. Hartford Courant Co., 200 Conn. 676, 682 (1986).

I disagree with, or find distinguishable, the cases cited by the defendant in support of its motion. In Richards v. Deaton, Superior Court, judicial district of Danbury, No. 309417 (1993), and Kyle v. Aetna Life Casualty Co., Superior Court, Judicial District of Fairfield, No. 324452 (1988) the courts held that a personal injury plaintiff could not assert a direct action against the tortfeasor's insurer based on the Connecticut Unfair Insurance Practices Act; General Statutes § 38a-816; or the Connecticut Unfair Trade Practices Act, General statutes § 42-110a et seq. In Ciarleglio v. Fireman's Fund Ins. Co., Superior Court, judicial district of Fairfield, No. 276028 (1993) ( Fuller, J.), the court held that a worker's compensation claimant could not assert such actions against a worker's compensation insurer because the employer, not the claimant is the insured in worker's compensation matters. While I view that broad statement as suspect in view of General Statutes § 31-340¹, a sounder basis for such a holding is that the statutory remedies provided within the Worker's Compensation Act for unreasonably contesting a claim are exclusive. See General Statutes § 31-3002²; see also General Statutes § 31-288.³

1 General Statutes "Sec. 31-340. Insurer directly liable to employee or dependent. Whenever any employer of labor as defined in this chapter insures his liability under this chapter with any company authorized to transact a compensation insurance business in this state, the contract of insurance between such employer of labor and such insurer shall be a contract for the benefit of any employee who sustains an injury arising out of and in the course of his employment by such insured by reason of the business operations described in the policy, while conducted at any working place therein described or elsewhere in connection therewith, or, in the event of such injury resulting in death, for the benefit of the dependents of such employee. Every such policy shall contain an agreement by the insurer to the effect that the insurer shall be directly and primarily liable to the employee and, in the event of his death, to his dependents or to any person entitled to burial expenses under section 31-306, to pay to him or to them the compensation, if any, for which the employer is liable; but payment in whole or in part of such compensation by either the employer or the insurer shall to the extent thereof be a bar to the recovery against the other of the amount so paid."

2 General Statutes "Sec. 31-300. Award as judgment. Interest. Attorney's fee. Procedure on discontinuance or reduction. As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original findings and award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such findings and award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney's fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney's fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee. No employer or insurer shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. The commissioner shall render his decision within fourteen days of receipt of such notice and shall forward to all parties to the claim a copy of his decision not later than seven days after his decision has been rendered. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any wrongful payments received from the day designated BY the commissioner as the effective date for the discontinuance or reduction of benefits. Any employee whose benefits for total incapacity are discontinued under the provisions of this section and who is entitled to receive benefits for partial incapacity as a result of an award, shall receive those benefits commencing the day following the designated effective date for the discontinuance of benefits for total incapacity. In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney's fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments."

3 General Statutes "Sec. 31-288. Additional liability. Penalty for undue delay. Penalty for noncompliance with insurance requirements. Penalty for defrauding workers' compensation insurance carrier. (a) If an employer wilfully fails to conform to any other provision of this chapter, he shall be fined not more than two hundred fifty dollars for each such failure.
"(b) Whenever (1) through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, or (2) either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.
"(c) If, upon investigation of a complaint or inspection of information available to the Workers' Compensation Commission, a commissioner has reason to believe that an employer is not in compliance with the insurance and self-insurance requirements of subsection (b) of section 31-284, the commissioner shall conduct a hearing, after sufficient notice to the employer, wherein the employer shall be required to present sufficient evidence of his compliance with said requirements. Whenever the commissioner finds that the employer is not in compliance with said requirements he may assess a civil penalty of not more than ten thousand dollars against the employer. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.
"(d) Any employer who, with the intent to injure, defraud or deceive any insurance company insuring the liability of such employer under this chapter, (1) knowingly misrepresents one or more employees as independent contractors, or (2) knowingly provides false, incomplete or misleading information to such company concerning the number of employees, for the purpose of paying a lower premium on a policy obtained from such company, shall be guilty of a class D felony."

The jurisdictions are divided as to whether, for policy reasons, a claim for breach of the covenant of good faith and fair dealing may be joined with an action for uninsured motorist benefits. See 3 No-Fault and Uninsured Motorist Automobile Insurance § 29.40[4]. In fact, there is no unanimity as to whether a claim for bad faith may arise in connection with an uninsured motorist claim. 2 Widiss, Uninsured and Underinsured Motorist Insurance (2d Ed.) § 20.1 et seq.; see also Shernoff, Gage Levine, Insurance Bad Faith Litigation (Matthew Bender) § 4.03[3]. Here, however, the defendant has not briefed these policy issues. "`[A] judge rarely performs his functions adequately unless the case before him is adequately presented."' L. Brandeis, `The Living Law,' 10 Ill. L. Rev. 461, 470 (1916); see Kelley v. Bonney, 221 Conn. 5549, 586, 605 A.2d 693 (1992); State v. Eichstedt, 20 Conn. App. 395, 403, 567 A.2d 1237 (1989), cert. denied, 214 Conn. 806 (1990) (Berdon J., dissenting); cf. Maltbie, Conn. App. Proc. (2d Ed.) § 327. Indeed, for the court to adjudicate the claims of the [defendant] in the [second] count without the [defendnat [defendant] having adequately briefed the issue] . . . risks having the court become an advocate in the nature of the [defendant's] co-counsel. This the court cannot do. In re Dodson, 214 Conn. 344, 353, 572 A.2d 328 (1990); State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); Swenson v. Dittner, 183 Conn. 289, 298, 439 A.2d 334 (1981); LaChase v. Sanders, 142 Conn. 122, 125, 111 A.2d 690 (1955); State v. Floyd, 10 Conn. App. 361, 369, 523 A.2d 1323 (1987), cert. denied, 203 Conn. 804 (1987)." Martinez v. Ciufetelli, Superior Court, judicial district of Fairfield, No. 292068 (1995). For this reason, the motion to strike is denied.

BY THE COURT

Bruce L. Levin Judge of the Superior Court