Opinion
No. CV07-5005084S
February 19, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #122
This matter is before the court on the defendant's motion to strike counts one and two of the complaint. The court after review of the motion, the objection thereto, and the applicable law, grants the defendant's motion to strike, counts one and two of the complaint.
FACTS
The plaintiff, Jillian Becher, commenced this action on June 20, 2007. After several motions, including an earlier granting of a motion to strike, change in counsel and a hearing, the court (Upson, J.) on November 17, 2008 ordered that the revised complaint filed November 23, 2007 be the operative complaint and the parties may proceed without prejudice, as if the revised complaint were filed November 17, 2008.
Minivan's original motion to strike the plaintiff's only count against Minivans was granted as it was based in liability of a leasing company, which is preempted by federal statute 49 U.S.C. § 30106. Neither party has raised this issue in the present motion to strike.
The operative complaint alleges the following. Martin Jones rented a motor vehicle from We Rent Minivans, LLC (Minivans) on January 25, 2006. At the time of the transaction, Minivans knew that Jones had no automobile liability insurance, nor substantial assets or independent means with which to cover the costs of any accidents that may occur with the vehicle. Minivans rented the vehicle to Jones and Jones paid in cash. Minivans allowed Jones to rent without proof of insurance in violation of General Statutes §§ 38a-371 and 14-213b. On February 3, 2006, Jones, while driving the rented vehicle, was involved in an accident with the plaintiff. As a result of the accident, the plaintiff suffered severe and permanent injuries. Jones's operation of the vehicle was within the scope of the rental agreement with Minivans.
In count one of the complaint, the plaintiff alleges that Minivans negligently entrusted the vehicle to Jones without proof of insurance, in violation of §§ 38a-371 and 14-213b. She argues this statutory violation creates negligence per se, and through this the defendant negligently entrusted the vehicle to Jones. In count two of the complaint, she alleges that Minivans violated CUTPA by engaging in the practice of renting vehicles without insurance.
On December 2, 2008, Minivans (the defendant) filed a motion to strike counts one and two of the complaint. The plaintiff filed a request for extension of time to respond to the motion to strike on December 10, 2008 and filed an objection to the defendant's motion to strike on January 15, 2009. Oral argument was heard during short calendar on January 20, 2009.
DISCUSSION
"(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39.
"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). "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.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).
The defendant argues that the motion to strike counts one and two of the complaint should be granted because the plaintiff did not allege that the defendant's wrongful conduct is the proximate cause of the plaintiff's claimed injuries. Also, the defendant argues that count one should be stricken because it does not allege the defendant had knowledge of any dangerous propensities or incompetency on the part of Jones, which is a necessary element of a claim of negligent entrustment. Further, the defendant argues that count two should be stricken because it fails to allege the existence of a consumer, competitor or business relationship between the plaintiff and defendant, which is a necessary element of the alleged CUTPA claim.
The plaintiff argues that the motion to strike should be denied on all counts because the failure to ensure that Jones had insurance for the rented vehicle is the clear cause of the plaintiff's current financial injuries. Also, the plaintiff argues, as to count one, that the allegations are sufficient to support the claim of negligent entrustment, through negligence per se, because she alleges the defendant knowingly rented the vehicle without proper insurance, in violation of General Statutes §§ 38a-371 and 14-213b. As to count two, she alleges the defendant's renting of the vehicle was an unlawful practice, and this practice caused a financial loss in the plaintiff's ability to collect insurance benefits or funds to compensate her for her injuries, which is enough to satisfy a CUTPA claim.
A. COUNT ONE: NEGLIGENT ENTRUSTMENT AND CAUSATION
"The courts recognizing a cause of action for negligence per se . . . rely upon the test laid out in Gore v. People's Savings Bank, 235 Conn. 360, 381-82, 665 A.2d 1341 (1995). In Gore, the Supreme Court gave negligence per se treatment to statutory requirements regarding the presence of lead paint in apartments. `[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent.' (Citations omitted; internal quotation marks omitted.) Id., 375-76. `Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law . . .' (Citations omitted; internal quotation marks omitted.) Id., 376." Michael J. Hamm III Property Account, LLC v. Laidlaw Transit, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002427 S (August 20, 2008, Pickard, J.) [46 Conn. L. Rptr. 153]. "A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence . . . They are therefore necessary ingredients for actionable harm." (Internal quotation marks omitted.) Taylor v. Winsted Memorial Hosp., 262 Conn. 797, 805, 817 A.2d 619, 624 (2003).
In the present case, the plaintiff has established that the defendant had a duty to insure any vehicle he leased or rented under §§ 38a-371 and 14-213b. This statutory duty is sufficient under the doctrine of negligence per se. This sufficiently pleaded, statutorily mandated duty of care alone is not enough. The plaintiff has failed to allege any facts that show a causal connection between the defendant's breach of its statutory duty and the resulting harm to the plaintiff. Construing the pleadings broadly and realistically, the plaintiff has not sufficiently pleaded the causal connection between the defendant's failure to insure Jones and the plaintiff's injuries. Having not sufficiently pleaded a causal connection, the court does not need to reach the defendant's other objections to count one. The defendant's motion to strike count one is granted.
B. COUNT TWO: CUTPA
The legislature has directed that when analyzing a CUTPA claim "courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(1))." General Statutes § 42-110b(b). This is also known as the cigarette rule. Ramirez v. Healthnet of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).
"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 [FTC] 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 business persons]." Id.
"[The FTC] . . . concluded that `[u]njustified consumer injury is the primary focus of the FTC Act, and the most important of the three . . . criteria.' D. Rice, Consumer Unfairness at the FTC: Misadventures in Law and Economics, 52 Geo.Wash. L.Rev. 1, 4 (1983), quoting letter from FTC commissioners, December 17, 1980. `[T]he Commission explained that regulation is permissible only if a practice causes [unjustified] injury that is substantial . . .' Id." Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 242-43, 520 A.2d 1008 (1987).
Despite differing analyses of the three prongs, the third prong has special significance. "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]." (Internal quotation marks omitted.) Thames River Recycling v. Gallo, 50 Conn.App. 767, 785, 720 A.2d 242 (1998).
"`In discussing the third criterion, the federal trade commission has stated: The independent nature of the consumer injury criterion does not mean that every consumer injury is legally unfair, however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided. Letter from Federal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980) (reprinted in Averitt, The Meaning of Unfair Acts or Practices in 5 of the Federal Trade Commission Act, 70 Geo.L.J. 225, 291 [1981]) . . . McLaughlin Ford, Inc. v. Ford Motor Co., [ 192 Conn. 558, 569-70, 473 A.2d 1185 (1984)]. This test is equally applicable when a business person or competitor claims substantial injury. [ Id., 570]' (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., [ 216 Conn. 200, 215-16, 579 A.2d 69]." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 592, 657 A.2d 212, 228 (1995).
In the present case, the plaintiff fails to allege any relationship, consumer or otherwise, that CUTPA was designed to protect. In fact, count two alleges a relationship between the plaintiff and defendant only through Jones, the driver. Construing the pleadings broadly and realistically, this relationship is not legally sufficient to properly allege a claim under CUTPA. Given the Connecticut court's previous emphasis on the third prong of the cigarette rule, the motion to strike count two of the complaint is granted. Having not sufficiently pleaded a claim under CUTPA, the court does not need to reach the defendant's other objections to count two.
CONCLUSION
Construing the pleadings broadly and realistically, the plaintiff has failed to plead a legally sufficient count against the defendant. Count one of the complaint does not sufficiently plead a causal relationship between the defendant's actions and the plaintiff's injuries. Count two does not sufficiently plead a proper relationship between the parties under a CUTPA claim. The defendant's (Minivans) motion to strike counts one and two of the complaint is granted.