Opinion
No. CV-07-5001571-S
July 11, 2007
MEMORANDUM OF DECISION
This is the defendant's motion to strike (#102) counts three, four and five of the plaintiff's complaint. For the reasons that follow, the motion must be granted.
On January 17, 2007, the plaintiff, Ellen C. Marino, Conservatrix of the Estate of Elayne Plancher, filed a five-count complaint against the defendant, Bank of America. In support of these claims, the plaintiff made the following allegations. For many years prior to 2004, Elayne Plancher had been a customer of Fleet Bank and had retained multiple accounts. During a short period of time from April 2004 through May 2004, money in the amount of over $200,000.00 was illegally and fraudulently withdrawn from Plancher's bank accounts at Fleet Bank. Fleet Bank paid these withdrawals even though they knew or should have known that the withdrawals were unauthorized. Fleet Bank also failed to compare the signatures on the bank cards and check the identification of the presenters making the withdrawals to determine that the signatures and identities of the individuals were not Plancher. Furthermore, Fleet Bank failed to notify Plancher of the sudden withdrawals and activity on her account. The monetary injury that the plaintiff suffered was a result of the defendant's: (1) negligence; (2) breach of a duty to act in good faith and to use ordinary care; (3) breach of a fiduciary duty; (4) breach of warranty under General Statutes § 42a-4-208; and (5) violation of CUTPA.
Fleet Bank was subsequently bought out by the defendant and the defendant assumed all of the legal liabilities of Fleet Bank.
On February 15, 2007, the defendant filed a motion to strike counts three, four and five, for breach of fiduciary duty, breach of warranty and violation of CUTPA, respectively. The defendant also submitted a memorandum of law in support of this motion. On April 17, 2007, the plaintiff filed an objection to the motion to strike as well as a memorandum in opposition. The matter was then heard on the short calendar on April 30, 2007.
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "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.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party'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). "[The court takes] the facts to be those alleged in the complaint that has been stricken and [construes] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendant has moved to strike counts three, four and five of the plaintiff's complaint as legally insufficient. The defendant argues that: (1) count three should be stricken because "there is no recognized fiduciary relationship between a depositor and a bank" in Connecticut; (2) count four should be stricken because "General Statutes § 42a-4-208 only provides relief for the drawee bank"; and (3) count five should be stricken because the "Defendant's alleged conduct is not unfair or deceptive and therefore does not rise to the level of a CUTPA violation."
The plaintiff counters that: (1) Connecticut does recognize a fiduciary relationship between a depositor and a bank; and (2) in permitting the series of fraudulent withdrawals to occur, the defendant acted contrary to public policy, in violation of CUTPA. The plaintiff admits, however, that General Statutes § 42a-4-208 is the incorrect statute and concedes that the motion to strike count four of the complaint should be granted. Therefore, the motion to strike is granted as to count four, and it will not be addressed below.
A. Fiduciary Duty Between a Bank and its Customers
The defendant first moves to strike count three because there is no recognized fiduciary relationship between a depositor and a bank. "[A] fiduciary or confidential relationship is broadly defined as a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "[P]rofessional negligence alone . . . does not give rise automatically to a claim for breach of fiduciary duty . . . [N]ot every instance of professional negligence results in a breach of [a] fiduciary duty . . . Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777 (2006).
The mere fact that an account holder has deposited funds into a bank does not automatically create a fiduciary relationship between the bank and the customer. Frigon v. Enfield Savings Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985); Greenwords Scholarship Foundation, Inc. v. Northwest Community Bank, Superior Court, judicial district of Hartford, Docket No. CV 96 0558956 (June 4, 1999, Teller, J.); Dime Savings Bank v. Lombardi, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0145967 (May 7, 1996, Ryan, J.). In fact, such relationships rarely give rise to a fiduciary duty. M.P.H. Recovery v. Bank of America, N.A., Superior Court, Judicial District of Fairfield, Docket No. CV 05 4010772 (January 30, 2007, Arnold, J.); Lukaskik v. Banknorth, N.A., Superior Court, judicial district of New Britain, Docket No. CV 04 4001336 (April 26, 2005, Burke, J.); Citicorp Vendor Finance, Inc. v. Sonnelite, Superior Court, judicial district of Danbury, Docket No. CV 03 0350572 (January 28, 2005, Frankel, J.). A fiduciary duty may arise only in exceptional circumstances, such as when there is a long history of dealings between the parties and the bank acts as an advisor or when the bank gains the confidence of the account holder. Dime Savings Bank v. Lombardi, supra; Krondes v. Norwalk Savings Society, Superior Court, judicial district of Fairfield, Docket No. CV 91 288829 (April 3, 1995, Cocco, J.).
In the present case, the issue is whether the plaintiff has adequately pleaded the exceptional circumstances that may give rise to the imposition of a fiduciary duty. In count three, the plaintiff incorporates paragraphs one through seven of the first count. In paragraph three of count one, the plaintiff alleges that: "For many years prior to 2004, Ms. Plancher had been a customer of Fleet Bank, maintaining multiple bank accounts." There is no allegation of any facts to show that over these "many years" Fleet Bank acted as an advisor to or gained the confidence of Plancher. All that is alleged is that Plancher kept her money in the bank for many years. Without more, the complaint does not allege the type of exceptional circumstances that would give rise to a fiduciary relationship between Ms. Plancher and Fleet Bank. As such, the defendant's motion to strike count three is granted.
B. Violation of CUTPA
The defendant also moves to strike count five on the ground that it "fails to state a claim upon which relief can be granted because Defendant's alleged conduct is not unfair or deceptive and therefore does not rise to the level of a CUTPA violation." "It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (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 — in other words, it is within at least the penumbra of some common law statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; whether it causes substantial injury to consumers . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 451 n. 16, 892 A.2d 938 (2006). "A practice is deceptive if it is a materially misleading representation, omission, or other practice that a consumer reasonably interpreted under the circumstances. Southington Savings Bank v. Rodgers, 40 Conn.App. 23, 28, 668 A.2d 733 (1995), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996)." Walsh v. Seaboard Surety Co., 94 F.Sup.2d 205, 213 (2000).
The plaintiff argues that the defendant's conduct violates CUTPA because they failed to take reasonable steps to prevent the fraudulent withdrawal of funds from an elderly woman's account. "Where a plaintiff alleges that a defendant's passive conduct violates CUTPA common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing." (Emphasis in original.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 427, 780 A.2d 967 (2001), cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002). Without such an obligation, the defendant's conduct, while possibly negligent, would not fall under CUTPA. Id., see also Ferrigno v. Pep Boys — Manny, Joe Jack of Delaware, Inc., 47 Conn.Sup. 580, 818 A.2d 903 (2003).
In Ferrigno, the court granted a motion to strike a CUTPA claim when the plaintiff alleged that the defendant ignored a warning sign that all tires on the vehicle had to be the same size and damaged the plaintiff's vehicle as a result of installing mismatched tires. Ferrigno v. Pep Boys — Manny, Joe and Jack of Delaware, Inc., supra, 47 Conn.Sup. 580. The court discussed the relationship of the defendant's alleged negligence to claims of CUTPA: "Only the entrepreneurial aspects of business are covered by CUTPA . . . Ordinary or professional negligence or malpractice does not fall under CUTPA . . . This distinction permeates the case law. If a tire seller engages in a `bait and switch' tactic — selling, for example, retreads to a buyer who believes that he is purchasing new tires — the entrepreneurial aspects of the business are engaged because the seller profits from its deception. The situation just described would be a classic CUTPA violation. A tire seller who does a poor job of installing new tires, however, is not engaged in the same type of deliberate deception and, more to the point here, does not increase its profits by its lack of workmanship. If [the defendant] did what [the plaintiff] alleges here, it may be incompetent. Incompetence does not, however, rise to the level of a CUTPA violation . . . [The plaintiff] alleges no acts that were deceptive, unfair or unconscionable in terms of the entrepreneurial or commercial aspects of the defendant's practice." (Citations omitted; internal quotation marks omitted.) Id., 583.
In the present case, the plaintiff certainly alleges a sufficient claim that the defendant may have been negligent in how it handled the fraudulent withdrawals. Just like the facts and hypothetical in Ferrigno, however, this alleged negligence does not rise to the level of a CUTPA violation because it does not involve the deliberate deception in some entrepreneurial aspect of the defendant's business. As such, the defendant's motion to strike count five is granted.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike counts three, four and five is granted.