Opinion
No. FST CV04 4002621 S
April 12, 2006
MEMORANDUM OF DECISION
This case involves claims arising out of a property insurance policy issued by the defendant, The Hartford Financial Services Group, Inc. ("The Hartford") to the plaintiff. Defendant, Michael Weiderlight is the insurance agent who issued the policy on behalf of The Hartford.
The plaintiff's complaint alleges that it incurred covered property losses when drains serving its property backed up causing damages to its real and personal property and that The Hartford has refused to pay the claim it filed under the policy. The first count alleges breach of contract. The second count alleges that the defendant's conduct constitutes a violation of the Connecticut Unfair Insurance Practices Act (CUIPA). The third count alleges that the defendant's conduct constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA). At issue is the defendant's motion to strike the second and third counts and the prayers for relief thereunder.
"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 Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003)
In its motion to strike the second count, the defendant claims that Connecticut does not recognize a private cause of action for relief under CUIPA. With respect to the third count the defendant claims that the plaintiff did not plead sufficient facts to allege a CUTPA violation.
Second Count — Alleged CUIPA Violations
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 Ass'n., 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.), Tomonto v. Progressive Northern Insurance Company, Superior Court, judicial district of Stamford/Norwalk D.N. 04 4001543 (March 1, 2005, Tobin, J.)
A number of Superior 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 second count of the plaintiff's complaint must be and it is hereby granted.
Third Count — Alleged CUTPA Violations
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, 850-51, 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 its 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 count including those alleging that the defendant had issued a policy of insurance to the plaintiff; that the defendant had failed and refused to pay plaintiff the compensation for a loss covered under the policy; that the defendant had a standard policy to deny claims such as plaintiff's even though they were covered under the insurance policies it issued; and that defendant's actions violated CUIPA and CUTPA.
The plaintiff's third count, in effect, alleges that the defendant's conduct was part of a general trade or business practice. While a single act of allegedly unfair business behavior cannot give rise to a claim under CUTPA predicated on violations of CUIPA, a general trade or business practice can. Mead v. Burns, supra., Lees v. Middlesex Ins. Co., supra, Heyman Assoc. No. I v. Insurance Co., of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995) Allegations of such a general trade or business practice need not be evidentiary. Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002). The court finds that the allegations of the plaintiff's third count are sufficient to withstand a motion to strike. Accordingly, the defendant's motion to strike the third count is denied.