Opinion
HHDCV186092061S
06-07-2019
Mark CAPUTO v. BRAINARD NORTH ASSOCIATES, LLC
UNPUBLISHED OPINION
OPINION
Peck, JTR
The plaintiff, Mark Caputo, brings this lawsuit in four counts against the defendants, Brainard North Associates, LLC (Brainard North), and Vermont Mutual Insurance Company (Vermont Mutual). Count one alleges negligence based on premises liability against Brainard North. The remaining three counts allege multiple claims of breach of contract against Vermont Mutual. Pending before the court is Vermont Mutual’s motion to strike counts two, three, and four of the plaintiff’s complaint.
In his complaint, filed on April 2, 2018, the plaintiff alleges the following facts as to each of the four counts. On July 25, 2016, the plaintiff was a tenant legally on the property of the record owner Brainard North. As the owner of the property, it was Brainard North’s duty to exercise reasonable care to maintain the premises for lawful entrants on the property, including the plaintiff. On the date of the accident, and for some time leading up to the incident, the stairwell adjacent to the plaintiff’s unit was in a dangerous and defective condition, as the stairs were weathered, in disrepair, or were otherwise not in sufficient working condition. While attempting to use the stairs on July 25, 2016, the plaintiff fell and suffered injuries, including severe and permanent injuries to his neck, right forearm, lower back, groin, hip, and right knee, in addition to mental anguish and various bruises and abrasions. The plaintiff’s accident and subsequent injuries were directly caused by Brainard North’s negligent and/or careless conduct. The plaintiff has continued to suffer from these injuries, some of which are long-term and could result in permanent disability.
In the plaintiff’s complaint, both July 25, 2015, and July 25, 2016, are listed as the date of the plaintiff’s injuries. The court assumes that July 25, 2016, is the correct date of the plaintiff’s injuries, as that date was referenced multiple times throughout the complaint, while the July 25, 2015, date bears only a single mention.
In referencing the defendant’s alleged misconduct, the plaintiff listed fourteen acts or omissions that caused the defendant’s injuries including: the defendant’s failure to maintain the stairway in a reasonably safe condition; that the stairway was in an open and obviously dangerous condition due to their deterioration and disrepair; that the defendant knew or reasonably should have known of the defective condition and failed to alleviate the issue; the defendant failed to inspect or discover the defective or dangerous condition present on the stairway; the defendant failed to erect barriers or safeguards around the dangerous condition; the defendant permitted a hazardous condition to exist on the stairway and knew or should have known that it would create a danger to the tenants present on the property; the defendant violated state building codes by maintaining an unsafe staircase on the premises, which the defendant knew or should have known would create a dangerous condition, and failed to rectify any present issues; the defendant violated federal building codes by maintaining an unsafe staircase, which they knew or should have known would have been dangerous to the plaintiff, and did not remedy the situation; the defendant possessed an unsafe staircase on their premises, which they knew or should have known would constitute a danger to the tenants, and failed to rectify the situation; the defendant failed to take adequate measures to correct the defects present in and on the stairwell; the defendant violated General Statutes § 47a-7 by failing to take the necessary steps to keep the premises in a fit and reasonable condition, which includes the failure to safely maintain the common areas on the property; the defendant failed to acquire competent and timely help to keep the stairwell in a reasonably safe condition; and that the defendant failed to take necessary and reasonable measures to prevent or protect against open and obviously unsafe or hazardous conditions in the stairwell prior to the tenant’s occupancy.
Counts two through four sound in breach of contract stemming from Vermont Mutual’s failure to pay the plaintiff insurance benefits in accordance with its policy. Specifically, in count two, the plaintiff alleges that at the time of the accident on July 25, 2016, the plaintiff was a third-party beneficiary under an insurance policy issued by Vermont Mutual. The Vermont Mutual insurance policy protects and provides medical coverage to invitees and third-parties who are injured while on the defendant’s property. As an invitee and third-party beneficiary legally on the defendant’s premises at the time he was injured, the plaintiff would qualify under Vermont Mutual’s policy. Despite Vermont Mutual’s obligation to pay for the plaintiff’s medical care pursuant to their insurance policy, the defendant has refused to provide the plaintiff with any payments or benefits.
Count three alleges that Vermont Mutual denied the plaintiff’s insurance benefits in bad faith. Based on Vermont Mutual’s insurance policy, the plaintiff was an intended third-party beneficiary, which created mutual obligations including requirements that the plaintiff report and submit medical expenses within one year of the date of the accident and Vermont Mutual’s subsequent obligation to pay those expenses, regardless of fault. Despite the plaintiff’s compliance with his obligations under the policy, Vermont Mutual continued to deny and/or withhold benefits. The plaintiff alleges that Vermont Mutual and its agent’s conduct was deliberate and exercised in bad faith, with the purpose of withholding the plaintiff’s insurance payments. Although Vermont Mutual and its agents knew that the plaintiff fulfilled his obligations under the policy, they still required the plaintiff to submit his medical expenses to Medicare for payment. At that point, Vermont Mutual made it clear that they would only remain secondarily responsible for any remaining balance after the Medicare payout. Vermont Mutual knew that such a precondition was not a prerequisite under the policy and yet misrepresented and misapplied this requirement to excuse payment of the plaintiff’s medical expenses. Additionally, Vermont Mutual refused to make any payments until the plaintiff’s legal claims against the insured party, Brainard North, had been resolved, at which point Vermont Mutual conveyed that they would still only pay for expenses not covered by Medicare. Again, these requirements were not presently located anywhere within the insurance policy. Vermont Mutual’s continued misrepresentations were simply aimed at curtailing the plaintiff’s required disbursements. All of Vermont Mutual’s actions were conducted with a dishonest motive and with the intent of intentionally or purposefully denying the plaintiff’s insurance benefits.
Count four alleges that Vermont Mutual engaged in the aforementioned behavior deliberately and maliciously, as to avoid paying insurance proceeds under the policy. Specifically, the plaintiff argues that Vermont Mutual’s conduct violated § 38A-816(1) of the Connecticut Unfair Insurance Practices Act (CUIPA), in that they perpetuated false statements that misrepresented the benefits, advantages, conditions, or terms of the company’s insurance policy. Vermont Mutual also allegedly violated CUIPA § 38A-816(15) by failing to pay or reimburse the plaintiff, or his healthcare providers, within the requisite statutory time frame. Additionally, the plaintiff maintains that Vermont Mutual violated 42 U.S.C.A. § 1395y(B)(2)(a)(ii), as it knowingly refused to pay the plaintiff’s covered medical expenses on the premise that its policy was a secondary repayment option to Medicare. This notion is in direct contravention of the Medicare statute and contrary to the public policy of preserving Medicare funds by ensuring that accident-related medical expenses are paid for from primary insurance sources. Vermont Mutual actively violated the Connecticut Unfair Trade Practices Act (CUTPA), which has resulted in a significant loss to the plaintiff and the commencement of this suit.
On June 7, 2018, Vermont Mutual filed a motion to strike counts two through four of the plaintiff’s complaint for misjoinder. The motion has been fully briefed by the parties and was argued before the court at short calendar on February 19, 2019. In support of the motion to strike, Vermont Mutual argues that the plaintiff improperly incorporated separate and distinct claims against two different defendants, which did not arise out of the same transaction, into a singular complaint. Vermont Mutual also contends that such a cohabitation of offenses will prejudice both of the defendants and has the potential to confuse the trier of fact.
DISCUSSION
"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 ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... 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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 398, 398, 142 A.3d 227 (2016). Under Practice Book § 11-3, "[t]he exclusive remedy for misjoinder of parties is by motion to strike." "A motion to strike shall be used whenever any party wishes to contest ... (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts ..." Practice Book § 10-39(a).
Vermont Mutual argues that counts two through four of the plaintiff’s complaint are improperly joined with count one because the plaintiff’s complaint joins multiple causes of action that do not arise out of the same transaction, which could lead to prejudice and confusion. They further argue that count one pertains solely to a negligence action against the property owner, Brainard North, while counts two through four allege an entirely distinct breach of contract claim against the property’s insurer, Vermont Mutual. Moreover, Vermont Mutual argues that count one is grounded in a negligence claim stemming from Brainard North’s improper maintenance of a faulty staircase, which resulted in the plaintiff’s injury. This claim, they contend, is wholeheartedly different than the plaintiff’s breach of contract claim against Vermont Mutual. Instead, Vermont Mutual contends that counts two through four of the complaint allege breach of contract violations against the company for actions that occurred subsequent to the plaintiff’s initial injury. Namely, that counts two through four arise out of Vermont Mutual’s alleged mishandling of the plaintiff’s subsequent insurance claim, which does not arise out of the same transaction as count one. Additionally, Vermont Mutual asserts that encompassing all of these claims into a single complaint could confuse jurors and should therefore be stricken. In response, the plaintiff counters that the allegations set forth in the complaint arise out of the same transaction and should be tried together, as to further judicial economy and to prevent injustice that would occur if the plaintiff was required to plead essentially the same evidence in two separate trials. The plaintiff’s main contention is that all four counts represented in the complaint directly stem from the plaintiff’s initial injury, and are therefore rightly joined together in the present action.
"In any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either ... (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action ... [I]n any case in which several causes of action are joined in the same complaint ... if it appears to the judicial authority that they cannot all be conveniently heard together, it may order a separate trial of any such cause of action or may direct that any one or more of them be deleted from the complaint or answer." Practice Book § 10-21. "Transactions connected with the same subject of action within the meaning of subdivision (7) of Section 10-21, may include any transactions which grew out of the subject matter in regard to which the controversy has arisen ..." Practice Book § 10-22. Similarly, General Statutes § 52-97 provides in relevant part: "[i]n any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall be brought to recover, either (1) upon contract, express or implied ... or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action [enumerated in this statute] so united shall ... affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint ... if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer." "[D]ifferent causes of action are properly joined in one complaint if both arose out of the same transaction, or if, while one arose out of one transaction and the other out of another, both these transactions were connected with the same subject of action." (Internal quotation marks omitted.) Klimas v. Connecticut Health Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0152955-S (April 18, 2000, Holzberg, J.); citing Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 A.76 (1893).
"The joinder of plaintiffs permitted by the statute and practice book is a form of permissive joinder." Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-04-0084313-S (August 2, 2004, Lager, J.) . "The purpose of joinder is to enable parties to settle all their controversies in a single action. The dominant idea is to permit joinder of causes of action ... where there is some substantial unity ..." (Citations omitted; internal quotation marks omitted.) Asset Acceptance, LLC v. Germana, Superior Court, judicial district of New Haven, Docket No. CV-12-6032199-S (January 13, 2015, Wilson, J.) . "[C]ourts have discretion concerning whether two or more actions should be joined, and are to consider first whether the present circumstances fall under one of the seven categories enumerated by Practice Book § 10-21, and second, whether the causes of action affect all the parties to the action. Finally, courts often focus on the if it appears to the judicial authority that they cannot all be conveniently heard together language in § 10-21 and decide whether to permit joinder based on the equitable considerations in the situation rather than on a strict application of § 10-21." (Internal quotation marks omitted.) Mills v. Rita H. Carter Revocable Trust, Superior Court, judicial district of New London, Docket No. CV-12-6015038 (February 19, 2013, Devine, J.) . "The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial." State v. Delgado, 243 Conn. 523, 532, 707 A.2d (1998).
In Dekutowski-Cook v. Pavalock, Superior Court, judicial district of New Britain, Docket No. HHB-CV-05-4005970-S (January 9, 2006, Shaban, J.) , the court held that the language in § 10-21(7) "is also permissive rather than mandatory. Therefore, actions which at first blush may appear to be sufficiently related to consider joinder, but upon closer inspection reveal good reason for their separation, are not required to be tried together." In granting the defendant’s motion to strike in Dekutowski-Cook, the court held that a personal injury claim against the driver of a vehicle should not be tried together with a subsequent insurance claim against an insurance company because the evidence brought forward "could prejudice or confuse the trier of fact on its consideration of the issue of damages should liability be established against the defendants ..." See also Green v. Blanchard, Superior Court, judicial district of Tolland, Docket No. TTD-CV-07-5001528-S (August 21, 2007, Vacchelli, J.) (motion to strike granted on basis of misjoinder where there were two claims occurring less than two months apart and involving the same plaintiffs and expert, but brought against different defendants, based on two separate accidents).
"The term cause of action as used with reference to joinder has been defined as a single group of facts out of which arises one or more rights to relief." (Internal quotation marks omitted.) Hutchings v. Hutchings, Superior Court, judicial district of Litchfield, Docket No. 054449-S (February 22, 1993, Dranginis, J.) , quoting, Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 147, 90 A.2d 884 (1948). "Where the facts forming the basis upon which the plaintiff claims relief constitute a single transaction or occurrence, he may sue in one action two or more defendants against whom he claims relief, and it does not matter that they may be liable concurrently, successively or in the alternative, or that the relief against each has a different legal basis. We can then define a cause of action under the provision in question as meaning a single group of facts which are claimed to have brought about an unlawful injury to the plaintiff for which one or more of the defendants are liable, without regard to the character of the legal rights of the plaintiff which have been violated." Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 (1948). "[T]he liability of each defendant must, in some aspect of the proof permissible under the allegations of the complaint, relate to and depend upon a single primary breach of duty." Id., 435 "[I]n addition to the requirement that all claims must fall within a single one of the categories listed [in General Statutes § 52-97], the rule of joinder of actions requires that all plaintiffs and all defendant must be common to all the claims and that all counts be triable at the same place under the rules as to venue." Green v. Blanchard, supra, Superior Court, Docket No. TTD-CV-07-5001528-S.
In Goggins v. Fawcett, 145 Conn. 709, 711, 147 A.2d 187 (1958), the court held that multiple actions arise out of the same transaction when they have "some connection with each other, in which both parties are concerned, and by which the legal relations of the parties have been altered ... [And] were a recitation of a group of related acts which went to make up one entire course of conduct and constituted a single transaction within the meaning of the statute." (Citation omitted). The court in Zahedi v. Envirotest Systems, Superior Court, judicial district of New London, Docket No. 552215 (February 28, 2000, Corradino, J.), defined a transaction as "[t]ransaction must be thus defined in terms of the operative facts that might prospectively give rise to a claim, whatever that claim may be." (Internal quotation marks omitted.) "[In] [l]ooking at the cases, it appears that separate or distinct acts or occurrences alleged by different plaintiffs cannot qualify for permissive joinder even though they might have occurred at the same location, and involved similar types of allegedly offensive, wrongful or discriminatory behavior. There must be some allegation of an interconnection between various acts complained of ... [Essentially] whether some series of acts can be defined as arising out of the same transaction or series of transactions is arrived at as the end result of an analysis of the alleged operative facts for the purposes of determining whether permissive joinder would serve the purposes of judicial economy and the expeditious handling of cases." Id.
In Ocasio v. Buchanan, Superior Court, judicial district of Hartford, Docket No. HHD-CV-15-6059597-S (January 13, 2016, Dubay, J.) , the court granted the defendant’s motion to strike for misjoinder, stating that, "the rule of joinder of actions requires that all plaintiffs and all defendants must be common to all the claims and that all counts be triable at the same place under the rules as to venue." (Citations omitted; emphasis omitted). Additionally, "[t]he court found that commonality did not exist because there are two different events with different defendants. Moreover, the court discussed [Practice Book § 10-21(7)] ... noting that the two incidents lacked a substantial connection to one another and, thus, did not arise out of the same transaction or transactions connected with the same subject of action." (Citations omitted; internal quotation marks omitted.) Id. In Bailey v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV-98-0577916 (June 18, 1999, Wagner, J.), the court held that "separate accidents giving rise to the two causes of action against the two different groups of defendants, are in no way connected with each other, form two separate bases of recovery and relate to and depend upon two separate breaches of duty." In addressing joinder concerns, the court in McCart v. Shelton, 81 Conn.App. 58, 62, 837 A.2d 872 (2004), stated that "[t]he plaintiffs’ common facts are tangential, and the crucial facts differ for each plaintiff. There is no common question of fact or law. Therefore, the court properly granted the defendants’ motion to strike the plaintiffs’ complaint for improper joinder." See also State v. Atkinson, 235 Conn. 748, 763, 670 A.2d 276 (1996) (improper joinder may expose a defendant to potential prejudice where joinder of cases are factually similar but legally unconnected).
In the present case, the plaintiff’s claims against Brainard North and Vermont Mutual, do not operate or arise out of the same transaction and cannot be conveniently heard together. See Practice Book § 10-21 and General Statutes § 52-97. The plaintiff’s negligence claim in count one of the complaint arose out of a fall on Brainard North’s property that occurred due to the alleged negligent maintenance of a staircase adjacent to the plaintiff’s unit. Counts two through four, on the other hand, asserted against Vermont Mutual, allege breach of contract violations based on its status as an insurer of Brainard North’s property. The plaintiff’s claims against Vermont Mutual are entirely based on the company’s contractual duty to pay insurance benefits to the plaintiff as a third-party beneficiary in the event of a liability claim against its insured entity, and bears no more than a tangential relationship to the underlying negligence claim. Thus, the claims against the defendants are based on two entirely separate breaches of duty. The plaintiff’s claim against Vermont Mutual did not come to fruition until after the time of his accident. Vermont Mutual had no responsibility to maintain or otherwise oversee Brainard North’s property. Its only duty was to pay out on insurance claims to third parties injured on the property of its insured, Brainard North, in accordance with their insurance contract.
Vermont Mutual’s obligation to pay insurance benefits to the plaintiff as a third-party beneficiary is entirely independent of the issue of Brainard North’s duty to keep its premises reasonably safe for invitees. Even though these claims share some common facts, the crucial operative facts are separate and distinct and do not encompass a common question of fact or law. See McCart v. Shelton, supra, 81 Conn.App. 62. The parties involved in each claim, the witnesses, other than the plaintiff, and the underlying evidence are different. Although the availability of liability insurance would not otherwise be admissible as to the negligence claim against Brainard North, if the counts are joined, the existence of insurance will be a part of the case, thus creating a very real danger of prejudice to one or both of the defendants. Essentially, there are no overlapping theories of liability and little overlapping evidence. Further, there is no common wrongdoer or a singularly applicable set of facts to the claims. See Dekutowski-Cook v. Pavalock, supra, Superior Court, Docket No. HHB-CV-05-4005970-S. Accordingly, the court concludes counts two through four of the complaint do not operate out of the same transaction as count one. Even if the court were to find that all of the plaintiff’s claims operated out of the same transaction pursuant to Practice Book § 10-21(7), joinder is still improper because they cannot be conveniently heard together in a single action. See Mills v. Rita H. Carter Revocable Trust, supra, Superior Court, Docket No. CV-12-6015038. As previously mentioned, there is a likelihood of confusion of the issues and prejudice to both of the defendants. See Dekutowski-Cook v. Pavalock, supra, Superior Court, Docket No. HHB-CV-05-4005970-S. Although judicial economy is an important consideration for joinder actions, it is but one factor to consider and is not an overarching policy that must be followed. See Green v. Blanchard, supra, Superior Court, Docket No. TTD-CV-07-5001528-S.
Expedient adjudication does not override the possibility of prejudice to the defendants or alleviate the differences between the claims. In count one, the plaintiff will have to prove the elements of negligence, namely, that Brainard North breached its common-law duty of care to the plaintiff, its invitee, and that this breach was a substantial factor in producing the plaintiff’s claimed injuries. In order to prove this claim, the plaintiff will have to introduce evidence specific to the condition of the staircase and the events leading up to and surrounding his injury. Brainard North’s insurance coverage will have no bearing on its liability for negligence pertaining to count one. As for the breach of contract claims in counts two through four, the plaintiff will need to prove that Brainard North’s insurance coverage with Vermont Mutual created a contractual obligation to the plaintiff, which Vermont Mutual has breached. The evidence necessary to prove this claim will be based entirely on the contract between the defendants, the circumstances surrounding that contract, and the facts underlying its alleged breach. While it is possible that evidence of the accident may be relevant to both claims, the crux of the evidence as to counts two, three, and four, will pertain to the existence and alleged breach of Vermont Mutual’s obligations pursuant to its insurance contract with Brainard North. If the latter claims are tried together with count one, it may confuse the distinct legal claims brought against each party and prejudice and/or unduly influence the jury by informing them of the existence of insurance.
Finally, the plaintiff attempts to draw parallels between the present case and cases that have joined car accident claims with concurrent underinsured motorist claims. These cases generally stem from a singular car accident where there is a liability claim against the tortfeasor and a direct claim against an insurance company, where the underlying coverage is alleged to be insufficient. In support of his contention, the plaintiff cites to Champagne v. Dellaripa, Superior Court, judicial district of Tolland, Docket No. CV-93-0054532-S (March 24, 1998, Sullivan, J.), in which the court allowed a negligence claim against an automobile operator and a claim for underinsured motorist coverage against two defendant insurance companies to be tried together in the same action, stating they both operated out of the same underlying car accident. Cases involving underinsured motorist coverage, however, have been treated differently by our courts because the facts and evidence typically center on the liability of the tortfeasor and injuries claimed by the plaintiff. For example, in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 24-25, 699 A.2d 965 (1997), the court found that "[u]nderinsured motorist insurance ... is unlike those traditional types of insurance all of which pay upon proof of the occurrence of the particular loss insured against, irrespective of the legal liability of others for causing that loss ... It provides benefits only upon proof that a third party, namely, an underinsured motorist for whose liability it acts as a surrogate, was a tortfeasor who injured the insured. Moreover, the amount of an underinsured motorist payment is determined, within contractual limits, by the measure of tort damages." The courts appears to draw a distinct line between underinsured motorist coverage and typical insurance contracts due to the close relationship between underinsured motorist coverage and the underlying defendants. Due to the unique nature of underinsured motorist coverage, the relationships of the parties, and the overlapping claims and evidence in such cases, it is logical, reasonable, and efficient to try these matters together in a single case. In the present action, however, the contractual liability of Vermont Mutual is entirely independent from the question of Brainard North’s negligence. Therefore, the plaintiff’s contention that the present joinder action is akin to underinsured motorist claims is invalid and will not be applied in this case.
For all the foregoing reasons, the court finds that counts one through four do not operate out of the same transaction for the purposes of joinder and the plaintiff has failed to present a compelling reason to try these claims in a single action. All of the claims are not relevant to each defendant and the evidence likely to be presented in support of each count is different and distinct. Additionally, for the reasons previously stated, interjecting the issue of insurance into a liability case is likely to cause juror confusion and prejudice to both defendants.
CONCLUSION
Accordingly, for all the foregoing reasons, Vermont Mutual’s motion to strike counts two, three and four of the complaint on the grounds of misjoinder is hereby granted.