Negri v. Auto Lock Unlimited, Inc.

Full title: ROGER NEGRI ET AL. v. AUTO LOCK UNLIMITED, INC. ET AL

Court: Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford

Date published: Jun 9, 2004

2004 Ct. Sup. 8988 (Conn. Super. Ct. 2004)

Opinion

No. CV 04-0198688

June 9, 2004

MEMORANDUM OF DECISION

LEWIS, JUDGE TRIAL REFEREE.

The plaintiffs, Roger Negri and Desiree Negri, filed a nine-count complaint alleging injuries and damages caused by the defendants, Auto Lock Unlimited, Inc. (Auto Lock) and Hyundai Motor Finance Company (Hyundai), during the repossession of Roger Negri's car by Auto Lock at the behest of Hyundai. The defendant Hyundai¹ filed motion #102 to strike counts seven, eight and nine of the complaint each alleging a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), as well as the related prayers for relief. The defendant contends that the plaintiffs failed to allege acts by the defendant which were sufficiently "unfair or deceptive."²

1 The plaintiffs brought suit against both Auto Lock and Hyundai. Because the motion to strike is by Hyundai only, references to the defendant indicate Hyundai.

2 The defendant also moved to strike count three of the complaint on the ground that it fails to properly state a claim for intentional infliction of emotional distress as well as paragraph four of the plaintiffs' prayer for relief on the ground that it fails to properly state a claim for attorneys fees under General Statutes § 42-150bb based on "consumer" contracts. In their memorandum of law in opposition, the plaintiffs stated that they intend to replead count three and paragraph four of their prayer for relief in accordance with Practice Book § 10-44 in the event that the motion is granted. No argument was included in the opposition to striking these claims. In addition, at the March 22, 2004 hearing, the plaintiffs declared that they are not contesting the defendant's motion with respect to count three of the complaint and paragraph four of the prayer for relief.

"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 . . . A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).

The ensuing paragraphs, incorporated into counts seven, eight and nine of the complaint, allege the following facts. In paragraph five, it is claimed that the defendant Hyundai "determined to enforce its rights under the contract and repossess [Roger Negri's] vehicle," and it directed its agent, Auto Lock, to conduct the repossession. In paragraphs six through seventeen, it is alleged that the repossession resulted in a breach of the peace. In paragraph twenty-one, the plaintiffs allege that, in addition to intimidating Desiree Negri and breaching the peace, Auto Lock refused to permit her to retrieve personal items from the car. In paragraph twenty of the complaint, the plaintiffs allege that Auto Lock has a business practice of intimidating consumers, breaching the peace, violating the Fair Debt Collection Practices Act, and engaging in unlawful conduct, in order to effectuate the repossession of consumers' vehicles.

In count seven of the complaint alleging CUTPA violations by the defendant, Desiree Negri alleges that the defendant's agent Auto Lock violated CUTPA and that it failed to put in place adequate training measures to ensure that its agents comply with Connecticut and federal law in connection with the repossession of motor vehicles. In count eight, it is alleged by the plaintiff Roger Negri that the defendant and its agent committed a breach of the peace and violated CUTPA, and that the defendant failed to put in place adequate training measures. In count nine, Roger Negri incorporates the paragraphs alleged in count eight and further alleges that the defendant's acts were wilful and wanton.³

3 The defendant argues that the allegation contained in paragraph forty-seven of count nine must be stricken because the statement that the defendant's failure to train was willful and wanton is a bald legal conclusion. "[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.T.R.) ( 31 Conn. L. Rptr. 380).

In support of its motion to strike, the defendant argues that it cannot be held liable under CUTPA for the conduct of Auto Lock as its agent.⁴ Connecticut courts have held that CUTPA liability may arise under the doctrine of respondeat superior if the servant is acting within the scope of his/her service and in furtherance of the master's business. See, e.g., Pollack v. Punjabi, 47 Conn. Sup. 179, 200-02, 781 A.2d 518 (2000), refusing a motion to strike a CUTPA claim against Yale University where the complaint alleged, inter alia, that the wrong-doers were agents, servants or employees of Yale; Gianetti v. Greater Bridgeport Individual Practice Assn., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 980355718 (Dec. 9, 1999, Moran, J.), denying motion to strike a CUTPA claim against a health maintenance organization where the plaintiff had alleged that the organization's agent committed a CUTPA violation.

4 The defendant quotes Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004), for the proposition that liability under CUTPA for the conduct of another is impossible unless both parties "unite in an act which constitutes a wrong to another, intending at the time to commit it, or in doing it under circumstances which fairly charge them with intending the consequences following." This case, however, states circumstances under which a CUTPA claim may be brought but does not limit claims to only those examples or circumstances.

In as much as the plaintiffs have alleged that Auto Lock was the defendant's agent and 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 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); and because CUTPA liability may attach based upon the actions of an agent, the plaintiffs' allegations against Hyundai for the actions of its agent, Auto Lock, have been pleaded sufficiently to state a cognizable claim.⁵

5 The defendant's argument in support of its motion to strike on the ground that counts seven, eight and nine do not allege acts by defendant itself which properly state a cause of action under CUTPA also fails because the plaintiffs have alleged that the defendant chose to repossess the vehicle and that the repossession involved a breach of the peace. These allegations are incorporated into counts seven, eight and nine. General Statutes § 42a-9-609, the Uniform Commercial Code, provides that a secured party may take possession of collateral "without judicial process, if it proceeds without breach of the peace." Comment three following § 42a-9-609 of the revised UCC states that "[i]n considering whether a secured party has engaged in a breach of the peace . . . courts should hold the secured party responsible for the actions of others taken on the secured party's behalf." As a matter of hornbook law, "[t]he secured creditor is generally liable not only for breaches of the peace that agents of the secured creditor commit, but also for breaches of the peace that independent contractors commit while employed by the creditor." 4 J. White R. Summers, Uniform Commercial Code (5th Ed. 2002) § 34-8, p. 385 n. 1 (2002). See also Clark v. Associates Commercial Corp., 877 F. Sup. 1439, 1444-49 (D. Kansas 1994). The defendant has not challenged count one of plaintiffs' complaint alleging violation of the revised UCC by the defendant. Finally, it is noted that the defendant may be held liable under CUTPA for violations of the defendant. The defendant may be held liable under CUTPA for violations of the UCC. Viel v. Annulli, Superior Court, judicial district of Tolland at Rockville, Docket No. 43452 (April 2, 1991, Dunn, J.) ( 3 Conn. L. Rptr. 823, 6 C.S.C.R. 43), refusing to strike a CUTPA claim which was based upon the allegation that a repossession was carried out in breach of the peace in violation of the UCC.

The defendant also argues that CUTPA liability cannot be predicated on its failure to adequately train the repossession service because, as a matter of law, the defendant had no obligation to train Auto Lock or any other independent contractor. The plaintiffs, however, have alleged that Auto Lock is the defendant's agent. "The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995). The defendant's argument on this point does not support the motion to strike.

Finally, the defendant argued that the plaintiffs have not alleged conduct sufficiently "unfair and deceptive" to violate CUTPA. In determining whether a CUTPA violation exists, Connecticut courts look to: "(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; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002).

"It is well settled that whether a defendant's acts constitute . . . deceptive or unfair trade practices under CUTPA . . . is a question of fact for the trier . . . The facts must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Citation omitted; internal quotation marks omitted.) Ditomaso v. Shorehaven Golf Club, Inc., Superior Court, judicial district of Stamford, Docket No. CV01 0186188 (May 23, 2003, Lewis, J.T.R.).

While it is true, as the defendant argues, that a violation of the repossession statutes does not automatically constitute a violation of CUTPA and an isolated instance of failing to comply with these statutes need not be deemed to violate CUTPA, it is also true that allegations concerning a repossession carried out in breach of the peace may constitute a CUTPA violation. See, e.g., Viel v. Annulli, supra, Docket No. 43452, denying a motion to strike a CUTPA claim which was based upon the allegation that a repossession was carried out in breach of the peace in violation of the UCC. See also Becker v. Ford Motor Credit Co., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 97 0082522 (January 10, 2000 Arena, J.), denying a summary judgment motion on a CUTPA claim where there was a material issue of fact concerning the reasonableness and fairness of the defendant's conduct with respect to a repossession performed by its agent.

Therefore, the defendant's motion to strike is denied as to counts seven, eight and nine of the complaint and is granted as to count three of the complaint and paragraph four of the prayers for relief.

So Ordered.

William B. Lewis, Judge