Opinion
No. CV07-5011963S
April 14, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #109
On August 6, 2007, the plaintiff, Ferdinand Oquendo, filed a three-count complaint against the defendant, G.V.L, Inc., a franchisee of Meineke Car Care Center, Inc. The plaintiff alleges, therein, that the decedent, Edward Cirillo, was killed when the brakes in his car failed to work properly. The plaintiff, who is the executor of Cirillo's estate, alleges that the accident was caused by the defendant's negligence, and immoral, oppressive and unscrupulous acts when undertaking to make repairs and service the brakes.
The defendant filed a motion to strike count two of the amended complaint which alleges CUTPA violations, on September 24, 2007. The plaintiff filed a memorandum in opposition to the motion to strike on January 10, 2008. This court, Bellis, J., rendered a decision on March 5, 2008, denying the defendant's motion to strike the third count of the plaintiff's complaint sounding in negligence. The defendant filed a supplemental memorandum of law in support of the motion to strike the second count of the revised complaint on March 13, 2008. The matter was heard on the short calendar on March 17, 2008.
"The role of the trial court [in ruling on a motion to strike] is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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).
"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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
In the defendant's motion to strike, he argues that mere negligence cannot be grounds for a claim of CUTPA violations. To prevail under CUTPA, a party must plead sufficient allegations of the statute. General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
"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 federal trade commission 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; [and] (3) whether it causes substantial injury to consumers [competitors or other businessmen]." (Internal quotation marks omitted.) Ramirez v. Healthnet of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).
The cigarette rule is more complicated when it is applied to alleged CUTPA violations stemming from negligence. Courts addressing this dilemma have engaged in an analysis of the cigarette rule, but among these courts, there is no clear agreement about how many prongs of the cigarette rule must be satisfied. Recently, the favored rule comes from Ramirez v. Healthnet of the Northeast, Inc., and states: "[a]ll 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.) Ramirez v. Healthnet of the Northeast, Inc., supra, 285 Conn. 19. To determine which of the prongs must be met, William's Ford, Inc., v. Hartford Courant, 232 Conn. 559, 593, 657 A.2d 212 (1995), cited by the defendant, states: "[T]he first prong, standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence."
Despite the contrasting analyses of the three prongs, courts have found that the third prong is the most important. "The third factor for determining whether an act or practice was unfair or deceptive, that is whether it caused substantial unjustified injury to consumers, competitors or other business people, is the most important of the three criteria for determining whether there has been a violation of CUTPA. Proof of an unjustified injury to consumers, competitors or other business people is a necessary predicate for recovery under [CUTPA]. In order for an act or practice to have caused substantial unjustified injuries to consumers, competitors or other business persons, the following three factors must be found: one, the injury caused must have been substantial; two, the injury caused must not have been outweighed by any countervailing benefits to consumers or by competition that the practice produces; and three, that the injury caused must have been an injury that the consumer, competitor or other business person could not reasonably have avoided." (Emphasis added.) Thames River Recycling v. Gallo, supra, 50 Conn.App. 785.
The Supreme Court in Thames River Recycling v. Gallo, 50 Conn.App. 767, 720 A.2d 242 (1998), added more limitations, stating that the second prong cannot stand alone when alleging a CUTPA violation from negligence, and disagreed with William's Ford, finding that the first prong is sufficient to establish a CUTPA violation. "In considering the second [factor], proof that a party acted negligently is not sufficient to establish that the party's conduct was immoral, unethical, or unscrupulous. Therefore, proof that a party acted negligently is not sufficient to establish that the party violated [CUTPA] unless the party claiming the act was violated also proved that by a preponderance of the evidence that the third factor . . . has been violated. Where the claimed violation of CUTPA is grounded in negligence, proof that the first criterion for determining that the act had been violated, that whether the conduct of the defendant violated public policy as it has been established by statute or condition law or other established counts of unfairness standing alone is sufficient to establish a violation of the act." (Emphasis in original; internal quotation marks omitted.) Thames River Recycling v. Gallo, supra, 50 Conn.App. 784-85.
At least one Superior Court case has held that all three elements of the cigarette rule must be satisfied in cases where the underlying claim is based solely on negligence. See Sipperly v. Burger King Corp., Superior Court, judicial district of New London at Norwich, Docket No. CV 094746 (March 17, 1992, Hurley, J.). Other courts have held that allegations of negligence alone cannot satisfy the second prong of the cigarette rule. See, Briere v. Waters, Superior Court, judicial district of Windham, Docket No. CV 95 052420 (March 21, 1996, Sferrazza, J.) (18 Conn. L. Rptr 631). Finally, at least one court held that acts of negligence can form the basis of a CUTPA violation provided the allegations satisfy the cigarette rule. See Tackling v. Shinerman, Superior Court, judicial district of New London, Docket No. CV 521012 (February 9, 1993, Teller, J.) (8 C.S.C.R 257) [ 8 Conn. L. Rptr. 313]. See also footnote 3 in Barbour v. Walker, Superior Court, judicial district of Fairfield at Stamford, Docket No. CV 02 0190506 (March 1, 2004, Hiller J.).
Connecticut courts have been reluctant to make a precise determination as to whether negligence can ever form a foundation for a claim of CUTPA violations. Williams Ford, Inc., does not shed light on this issue, as it addressed negligence in CUTPA violations when contributory negligence was at issue. Moreover, in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 33-34, 699 A.2d 964 (1997), the court chose to uphold the trial court's ruling that negligence was not a valid ground for a CUTPA allegation. "The trial court in the present case, relying on A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990), held that negligence could not be a basis for a CUTPA claim. The trial court then determined that the allegations were based solely on negligence and rendered summary judgment. We agree with the trial court that the plaintiff's CUTPA count does not allege a sufficient cause of action, but for different reasons." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 33. Like Williams Ford, Inc., Haynes does not make a statement about the merit of general CUTPA claims grounded in negligence. "In Williams Ford, Inc., however, we made clear that we did not decide whether negligence of the defendant alone, unaccompanied by contributory negligence of the plaintiff, [could] establish a CUTPA violation because the plaintiffs in Williams Ford, Inc. were found to have been contributorily negligent . . . Indeed, we specifically left that issue open for another day . . . Likewise, in the present case we do not decide whether negligence alone is sufficient to support a CUTPA violation." (Citations omitted; internal quotation marks omitted.) Id., 34. Rather than making a broad decision on negligence, the Haynes court concluded that professional negligence, or malpractice, did not fall within CUTPA.
The plaintiff in the present case counters the defendant's position by citing two Superior Court cases, which provide for CUTPA claims when alleging negligence alone. These cases do not provide substantial support, however, as the circumstances differ substantially from the present case. In the first, Vuoso v. Department of Consumer Protection, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0267844 (February 2, 2001, Robinson, J.), an administrative appeal, the court gave deference to the agency's determination that the cigarette rule had been satisfied by a single act of negligence. The court simply explained that the agency's CUTPA analysis was not grounds for reversal, but did not venture into an independent analysis of the cigarette rule.
In the second, Barbour v. Walker, Superior Court, judicial district of Fairfield at Stamford, Docket No. CV 02 0190506 (March 1, 2004, Hiller, J.), the court denied a motion to strike a CUTPA count based on negligence because the facts contained in the motion satisfied the cigarette rule. In Barbour, the facts, as addressed in the complaint, formulated a basis for a CUTPA violation and satisfied the cigarette rule. In the present case, the facts alleged do not, in and of themselves, provide a foundation for a CUTPA violation.
While CUTPA was intended to be liberally construed, it should not be without limitations. Since the introduction of the statute, it is evident that requirements, such as the cigarette rule, have been incorporated into the analysis of the statute to ensure meritorious claims. Consequently, it is imperative that a party alleging CUTPA meet those guidelines as well. The plaintiff in this case has not done so, and his complaint suffers from a number of flaws. As the defendant asserts, the second prong is the only prong alleged by the plaintiff, and therefore, the defendant's argument does not comply with the cigarette rule, as analyzed above. Moreover, the facts alleged, standing alone, do not provide a foundation for CUTPA violations based on negligence, as they did in Vuoso. "No determination with regard to these CUTPA counts can be made here because nowhere in these counts does the plaintiff set forth how or in what respect the alleged activities are `immoral' or `unethical' or `oppressive' or `unscrupulous' nor do any of these counts assert in what way(s) the defendants' actions are inimical to this state's public policy." Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 38-39, 911 A.2d 777 (2006). Finally, as stated above, the majority of Connecticut decisions addressing negligence and CUTPA has not recognized those claims.
"It strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002).
Reviewing exclusively the four corners of the complaint, the defendant has successfully demonstrated that the CUTPA cause of action is legally insufficient. The motion to strike the second count of the revised complaint is granted.
The court is limited "to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).