Opinion
No. CV04 4001543 S
March 8, 2005
MEMORANDUM OF DECISION
This case involves claims arising out of the underinsured motorists provisions of an insurance policy issued by the defendant to the plaintiff. The first count of plaintiff's complaint is a claim for payment of the underinsured motorists benefits under her policy. The second count alleges bad faith by the defendant in failing to pay plaintiff's claim. The third count alleges that the defendant's conduct constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The fourth count alleges that the defendant's conduct constitutes a violation of the Connecticut Unfair Insurance Practices Act (CUIPA). At issue is the defendant's motion to strike the third and fourth counts and the prayers for relief thereunder. For reasons set forth herein the defendant's motion is granted.
"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). "For the purpose of ruling upon a motion to strike the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted (Internal quotation marks omitted) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
In its motion to strike the fourth count, the defendant claims that Connecticut does not recognize a private cause of action for relief under CUIPA and that even assuming the existence of a private cause of action, the plaintiff did not plead sufficient facts to allege a CUIPA violation. With respect to the third count the defendant claims that the plaintiff did not plead sufficient facts to allege a CUTPA violation.
The court will first address plaintiff's claim that CUIPA contemplates private causes of action. Neither our Supreme Court nor our Court of Appeals have ruled on whether a private right of action exists under CUIPA. While the Superior Courts which have considered the question are divided, a majority have determined that no private right of action exists. Szlachetka v. Mullen, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 02 0513409S (Feb. 25, 2003, Dunnell, J.). The consensus of these courts may be summarized as follows: 1) there is no express authority under CUIPA for private causes of action; 2) CUIPA is not ambiguous; 3) the regulatory scheme under CUIPA contemplates investigation and enforcement actions to be taken by the insurance commissioner; and 4) consequently there is no private cause of action under CUIPA. See, for example, Gianetti v. Greater Bridgeport Individual Practice Assn., Superior Court, Judicial District of Fairfield D.N. 02 0396581 (May 28, 2004, Doherty, J.) Fedora v. Worchester Insurance Co. Superior Court, Judicial District of New Haven D.N. 03 0285288 (September 28, 2004, Tanzer, J.).
A number of courts have taken particular note of the express private right of action provided under CUTPA and the absence of similar provisions under CUIPA. 1049 Asylum L.P. v. Kinney Pike Ins., Superior Court, Judicial District of Hartford, Docket No. CV 020816344 (May 30, 2003, Booth, J.) ( 34 Conn. L. Rptr. 723). This court finds the reasoning of the majority of Superior Courts to be compelling and joins with them in ruling that no private cause of action exists under CUIPA. Accordingly the defendant's motion to strike the fourth count of the plaintiff's complaint must be granted.
The plaintiff's third count alleges that violations of CUIPA by the defendant constitute violations of CUTPA. There is no question that CUIPA violations can serve as a basis for a private right of action under CUTPA. Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986), Lees v. Middlesex Ins. Co., 229 Conn. 842, 850-1, 643 A.2d 1282 (1994).
In its motion to strike the defendant claims that the plaintiff's third count fails to allege facts to support her claim that the defendant engaged in trade or business practices constituting violations of either CUTPA or CUIPA. The plaintiff's third count incorporates the allegations of the first and second count alleging that the plaintiff was injured due to the negligence of an underinsured motorist; that the liability limits of the underinsured motorist's policy had been exhausted; that the defendant had issued a policy of insurance to the plaintiff that included underinsured motorists coverage; that the defendant had failed and refused to pay plaintiff an adequate amount for her injuries; that the defendant had acted in bad faith in handling the plaintiff's claim and that defendant's actions violated CUIPA and hence CUTPA in a number of ways.
The plaintiff's third count fails to allege that the defendant's conduct was part of a general, trade or business practice nor do the allegations of that count allege facts from which a general trade or business practice could be inferred. A single act of allegedly unfair business behavior cannot give rise to a claim under CUTPA predicated on violations of CUIPA. Mead v. Burns, supra., Lees v. Middlesex Ins. Co., supra, Heyman Assoc. No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 653 A.2d 122 (1995).
In her brief the plaintiff claimed that her third count encompasses not only a CUTPA claim predicated on CUIPA violations, but also a "common law CUTPA claim." In oral argument plaintiff's counsel conceded that the phrase "common law CUTPA claim" was a contradiction in terms, but urged that her third count be read to encompass claims that the defendant's conduct constituted a violation of CUTPA independent of any violations of CUIPA.
In Mead v. Burns, supra, and Lees v. Middlesex Ins. Co., supra the Supreme Court addressed the issue of whether a CUTPA claim against an insurer could be based on conduct which did not constitute a violation of CUIPA. The Court held that CUIPA embodied a public policy as to the bounds of acceptable and unacceptable insurer conduct and that a CUTPA claim against an insurer for unfair claims settlement practices could not be maintained for conduct that did not satisfy the requirements of CUIPA. Since the plaintiff's third count does not allege facts constituting a violation of CUIPA the motion to strike that count must be granted.
David R. Tobin, Judge