Opinion
No. CV 07 5009224 S
June 12, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
Before the court is the defendant's motion to strike counts three, four and five of the plaintiff's complaint, and the plaintiff's prayer for relief therein seeking recovery of punitive damages and attorneys fees.
FACTS
On February 13, 2007, the plaintiff, Colonial Restaurant Supply, LLC, filed a complaint against the defendant, Travelers Indemnity Company of America. The complaint contains five counts: (1) "Breach of Contract — Loss to Building and Depreciation"; (2) "Breach of Contract-Loss to Inventory/Business Personal Property and Loss of Income"; (3) breach of the implied covenant of good faith and fair dealing; (4) bad faith; and (5) a cause of action under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., based on the defendant's alleged violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. The plaintiff alleges that the defendant refused to pay the full extent of the losses sustained by the plaintiff's property during a windstorm, to which payment the plaintiff was entitled under the coverage provided by the commercial business policy issued by the defendant to the plaintiff.
On March 27, 2007, the defendant filed a motion to strike counts three, four and five, as well as the corresponding prayers for relief. The defendant moves to strike counts three and four on the ground that the plaintiff has failed to allege the necessary elements of a bad faith claim, i.e., acts demonstrating wanton and malicious injury, evil motive and violence, dishonest purpose, moral obliquity, furtive design or ill will. The defendant moves to strike count five on the ground that the plaintiff has failed to allege facts that demonstrate a general business practice and, alternatively, on the ground that count five fails to include allegations that satisfy the cigarette rule. The defendant further claims that the plaintiff's attempt to recover punitive damages and attorneys fees in its prayer for relief must fail if counts three, four and five are stricken. The defendant has submitted a memorandum of law in support of the motion. On May 15, 2007, the plaintiff filed a memorandum of law in opposition. The matter was heard at the short calendar on May 21, 2007.
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "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." (Internal quotation marks omitted.) Id., 588. "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
In its memorandum of law in support of the motion to strike, the defendant argues that counts three and four are conclusory, repetitive of the allegations contained in the first two counts and fail to allege bad faith. The defendant also argues that the fourth count is merely duplicative of the third count, and therefore must be stricken if the third count is stricken.
As to count five, the defendant argues that the plaintiff has not alleged facts sufficient to indicate that the defendant has engaged in unfair claim settlement practices with such frequency as to constitute a general business practice and, further, that the plaintiff has failed to plead count five with sufficient particularity under the cigarette rule. Regarding the plaintiff's demand for punitive damages and attorneys fees, the defendant argues that it must be stricken if counts three, four and five fail to withstand the motion to strike. In response, the plaintiff counters that counts three and four contain legally sufficient allegations of bad faith and that count five is an adequately pleaded CUTPA-CUIPA cause of action.
I
In counts three and four, the plaintiff alleges a breach of the implied covenant of good faith and fair dealing, and bad faith, respectively. "[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . .
"To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004). "Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive." Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993).
"[B]ad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . . [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . [I]t contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42 n. 4, 867 A.2d 1 (2005).
In the context of insurance law, "[t]he implied covenant of good faith and fair dealing has been applied . . . in a variety of contractual relationships, including . . . insurance contracts . . . The concept of good faith and fair dealing is [e]ssentially . . . a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." (Citations omitted; internal quotation marks omitted.) Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988). "[T]he examination of good faith and fair dealing in the settling of an insurance claim requires a case-by-case analysis." Id.
Indeed, "[i]t is manifest that . . . in every insurance contract there is an implied covenant of good faith and fair dealing. The duty to so act is immanent in the contract whether the company is attending to the claims of third persons against the insured or the claims of the insured itself. Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort." (Internal quotation marks omitted.) L.F. Pace Sons, Inc. v. Travelers Indemnity Co., 9 Conn.App. 30, 46, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).
In the present case, the plaintiff's third count incorporates the first count's breach of contract allegations, and contains allegations that the defendant "breached [the] covenant . . . [because]: (I) it failed to respond to and/or properly investigate the plaintiff's claims in a timely manner; (ii) it reassigned the loss to at least four adjusters during the span of a one year period of time, resulting in misrepresentations being made to the plaintiff . . . regarding the full extent of the plaintiff's loss and/or coverage for said loss; (iii) it failed to authorize mold remediation and/or make payments for mold remediation; (iv) it substantially delayed and/or interfered with the mold remediation process . . . (v) it compelled the plaintiff to institute litigation to recover amounts due to it under the insurance policy; and (vi) it failed to promptly provide to the plaintiff a reasonable explanation of the basis of its delay in investigating and paying the plaintiff's claims." The plaintiff farther alleges that the defendant's delay injured the plaintiff's right to receive policy benefits, frustrated the plaintiff's attempt to repair the property, and, as a result, the plaintiff has suffered a substantial loss. Count three contains no allegations to support its claim that the defendant breached the covenant of good faith and fair dealing, i.e., that the defendant acted in bad faith.
Although the plaintiff's fourth count generally repeats the allegations in count three, it adds the following critical allegation: "In refusing to fully investigate and pay the full extent of the loss and damage to the plaintiff . . . the defendant acted outrageously and maliciously toward the plaintiff with willful disregard for the plaintiff's rights under the terms of the policy, with willful disregard for the plaintiff's ability to make necessary and immediate repairs to the property, including mold remediation, with willful disregard of the plaintiff's ability to salvage, restore or clean its business operations; and in violation of the defendant's implied agreement to act in good faith toward its insured."
In previous decisions, this court has concluded that allegations of bad faith similar to those in count four, some of which were more paltry than those in count four, were legally sufficient. Thus, the defendant's motion to strike count four because it contains legally sufficient allegations of bad faith is denied. The third count, on the other hand, is stricken because, in not including the additional allegation contained in count four, count three amounts to allegations of mere negligence; a claim of bad faith requires more than allegations of mere negligence.
In Holsworth v. Allstate Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 99 0367269 August 9, 2001, Skolnick, J.), the plaintiff alleged that the defendant "acted in bad faith by failing to fully investigate her claim, tender payment to her and give her a reasonable explanation for its denial of the her claim . . . [and that the defendant's] bad faith conduct . . . has been engaged in . . . for the purpose of unreasonably delaying the inevitable settlement of the plaintiff's uninsured motorist claim . . ." (Internal quotation marks omitted.) Id.
In Palmer v. Allstate Indemnity Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV99 0365117 (January 27, 2000, Skolnick, J.) [26 Conn. L. Rptr. 342], the plaintiff alleged that the defendant failed to settle the plaintiff's uninsured motorist claim after more than a year and that "the defendant's . . . bad faith conduct . . . has been engaged in . . . for the purpose of unreasonably delaying the inevitable settlement of the plaintiff's . . . [claim] . . . (Internal quotation marks omitted.) Id.
In Walker v. Allstate Indemnity Co., Superior Court, judicial district of Fairfield, Docket No. CV 0357641 (May 16, 2000, Skolnick, J.), the plaintiff alleged that the defendant "(1) did not attempt to effectuate a prompt, fair and equitable resolution of a claim of clear liability; (2) refused to negotiate the claim and cause the plaintiff to institute unnecessary and costly litigation; (3) undervalued the plaintiff's claim; (4) failed to adequately investigate the plaintiff's claim; and (5) failed to make a settlement offer thereby causing the plaintiff economic harm." The plaintiff also alleged that the defendant's actions "amount to bad faith and a breach of the implied covenant of good faith and fair dealing." Id.
This court treats bad faith and a breach of the implied covenant of good faith and fair dealing as indistinguishable causes of action. See Walker v. Allstate Indemnity Co., Superior Court, judicial district of Fairfield, Docket No. CV 0357641 (May 16, 2000, Skolnick, J.). As is well established, in ascertaining the causes of action alleged, the language of the complaint itself must be analyzed and the titles assigned to the plaintiff's causes of action are not determinative. See International Motorcars, LLC v. Sullivan, Superior Court, judicial district of New Britain, Docket No. CV 05 4005168 (June 20, 2006, Shaban, J.) (41 Conn. L. Rptr. 559, 562); see also Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).
II A
In count five, the plaintiff alleges a CUTPA claim based on unfair claim settlement practices under CUIPA. "[C]laims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct." Mead v. Burns, 199 Conn. 651, 659, 509 A.2d 11 (1986). Alleging "improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a general business practice." Lees v. Middlesex Ins. Co., 229 Conn. 842, 849, 643 A.2d 1282 (1994).
The first issue regarding the legal sufficiency of the fifth count is whether the following allegation by the plaintiff adequately alleges a "general business practice" under CUIPA: "The defendant's conduct . . . rises to the level of a general business practice in that, other insureds have made claims that the defendant has engaged in similar conduct in the handling of its insurance claims and/or the defendant has been previously found to have violated statutes prohibiting unfair and deceptive trade practices, for its failure to pay the full extent of an insured's loss pursuant to a commercial business insurance policy."
Although the plaintiff has not specifically identified General Statutes § 38a-816(6) as the predicate for its CUIPA claim, opting instead to allege a violation of General Statutes §§ 38a-815 and 38a-816, the language of the complaint evinces allegations in unfair claim settlement practices because the language mirrors § 38a-816(6). In determining what is being alleged, the court is guided by the language of the complaint itself. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).
Section 38a-816(6) provides: "Unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following: (a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies; (c) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (d) refusing to pay claims without conducting a reasonable investigation based upon all available information; (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; (g) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds; (h) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; (i) attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured; (j) making claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made; (k) making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (l) delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; (m) failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; (o) using as a basis for cash settlement with a first party automobile insurance claimant an amount which is less than the amount which the insurer would pay if repairs were made unless such amount is agreed to by the insured or provided for by the insurance policy."
In Starview Ventures, LLC v. Acadia Ins., Superior Court, judicial district of New Haven, Docket No. CV 06 5003463 (October 17, 2006, Skolnick, J.T.R.), this court concluded that the insured must allege that the insurer has treated other claimants unfairly in a manner that constitutes a general business practice. Here, the plaintiff satisfies this requirement, for it has alleged that the defendant has settled unfairly with other claimants. The defendant nevertheless argues that the plaintiff's failure to identify those other insureds and allege the circumstances surrounding their claims is fatal to the legal sufficiency of count five. The plaintiff counters that it need only plead claims involving other insureds and need not prove them until later at trial.
See also Hargrave v. Farmington Casualty Co., Superior Court, judicial district of Fairfield, Docket No. CV 00 0370875 (November 22, 2000, Skolnick, J.); Sanon v. Sedgewick James of New York, Superior Court, judicial district of Fairfield, Docket No. CV 96 0339158 (May 23, 1997, Skolnick, J.).
The parties' legal memoranda reveal a split of authority in the Superior Court as to the degree of factual detail required when alleging an insurer's unfair claim settlement practices with respect to other insureds. In support of a heightened detail requirement, the defendant relies on two decisions, Asmus Electric, Inc. v. G.M.G. Contractors, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0489527 (February 25, 2005, Lopez, J.), and Currie v. Aetna Casualty Surety Co., Superior Court, judicial district of Hartford, Docket No. CV 96 0558900 (August 12, 1999, Mulcahy, J.). In opposition, the plaintiff relies on Levin v. Fireman's Fund Ins. Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 01 0170962 (July 7, 2003, McWeeny, J.).
Examining the defendant's supporting authority first, in Asmus, the court, Lopez, J., concluded that the following allegation was inadequate: "[The defendant] has engaged in similar conduct with other persons and entities with such frequency as to indicate a general business practice . . . As a result of the foregoing, the [d]efendant . . . has engaged in unfair or deceptive acts and practices, as proscribed by . . . § 38[a]-816(6)." (Internal quotation marks omitted.) Asmus Electric, Inc. v. G.M.G. Contractors, Inc., supra, Superior Court, Docket No. CV 04 0489527. The court held: "[The plaintiff] has not alleged facts constituting improper conduct in the handling of any other insurance claims and without evidence of such misconduct . . . the allegations do not rise to the level of a general business practice as required by § 38a-816(6)." (Internal quotation marks omitted.) Id.
Likewise, in Currie, the court, Mulcahy, J., concluded that the following allegation was inadequate: "[The defendants] have continued to commit . . . [unfair] acts . . . as to the plaintiffs . . . and as to other insureds and policy holders of the defendants or the defendants' holding companies, affiliates, or subsidiaries with such frequency as to constitute a general business practice in violation of . . . § 38a-816(6)." (Internal quotation marks omitted.) Currie v. Aetna Casualty Surety Co., supra, Superior Court, Docket No. CV 96 0558900. The court held: "Without some allegations of predicate facts, statements setting forth, in substance, merely the statutory requirement become conclusory. A pleading must fail if it contains only unsupported conclusions of law without the required underlying facts. And, for purposes of a motion to strike, legal conclusions are not admitted . . . [T]he plaintiffs' allegation . . . is merely a conclusory statement devoid of any facts demonstrating that [the defendant] engaged in unfair settlement practices . . . with such frequency as to amount to a general business practice." (Citations omitted; internal quotation marks omitted.) Id. The court arrived at its holding by reasoning that, although Practice Book § 10-1 does not require plaintiffs to plead the evidence by which material facts are to be proved, merely inserting "the magic words of other acts of insurance misconduct by the defendant . . . [without] stating the factual basis for that claim" is inadequate for purposes of a motion to strike. (Internal quotation marks omitted.) Id.
Practice Book § 10-1 provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
In response, the plaintiff relies on Levin v. Fireman's Fund Ins. Co., supra, Superior Court, Docket No. X06 CV 01 0170962. In that case, the court, McWeeny, J., concluded that the following allegation was adequate: "[T]he defendants failed to adopt and implement reasonable standards for the prompt investigation of insurance claims, and that some or all of these practices have been committed with such frequency as to constitute a general business practice." Id. The court held: "[The] complaint is not yet before the court on a motion for summary judgment. On a motion to strike, it is merely necessary for the court to find that [the plaintiff] has stated, not proven, a legal claim." Id.
In deciding whether the plaintiff in the present case must allege the legal and factual circumstances of other similarly situated plaintiffs to survive the defendant's motion to strike, the court recognizes that "[t]he adverse party has the right to have the facts appear so that the question whether they support the conclusion may be determined and that he may have the opportunity to deny them." Smith v. Furness, 117 Conn. 97, 99, 166 A. 759 (1933). Whether an allegation presents a mere legal conclusion depends on whether it fails to provide the adverse party with an indication of the subordinate issues that will be involved at trial. Thus, if the defendant has "no clue as to the nature of the subordinate issues that will be involved in the trial," the motion to strike should be granted. (Internal quotation marks omitted.) Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford, Docket No. CV 94 0535590 (April 24, 1997, Corradino, J.).
This court has previously stated: "In this day of crowded dockets, a complaint must inform the court and the defendant, with reasonable clarity, of the cause of action to be tried . . . If [the plaintiff] fails to do so, it is not the burden of the defendant to attempt to correct the deficiency . . . Rather, [t]he burden rests on the plaintiff to allege a recognizable cause of action Such a requirement has its basis in two principles inherent in our procedure: The first is that in any action the complainant is required to set forth facts upon the basis of which, if true, [the complainant] may be able to establish in law a right to relief, for, unless that is done, the pleading is demurrable . . . and the second requirement is that a pleading must fairly apprize the court and the adverse party of the claims to be made." (Citations omitted; internal quotation marks omitted.) Leach v. Collect America, Superior Court, judicial district of New Haven, Docket No. CV 01 0455786 (August 9, 2004, Skolnick, J.).
The defendant has been given sufficient notice of the plaintiff's intent to prove at trial what it has presently alleged in the complaint, specifically, that the defendant has engaged in similar conduct with other claimants. Were the plaintiff to prove its allegations of the defendant's conduct toward other claimants, such proof would support its CUTPA-CUIPA claim. Thus, this court concludes that the plaintiff has alleged sufficient claims setting forth a business practice of the defendant regarding the circumstances surrounding other claimants.
B
The next issue regarding the legal sufficiency of the fifth count is whether a violation of CUTPA has been alleged with sufficient specificity. The defendant contends that the plaintiff's allegations fail under the cigarette rule in that they are legal conclusions with no supportive facts stating "how or in what way the actions of [the defendant] rose to the level of corrupt, immoral or unscrupulous behavior." The plaintiff counters that count five is legally sufficient.
Alternatively, the plaintiff requests the court adopt the view of a minority of decisions in the Superior Court that have concluded that CUIPA provides for a private right of action and need not be brought under CUTPA. Our appellate courts have yet to rule on whether CUIPA permits a private right of action, and there is a split of authority in the Superior Court regarding whether a private right of action exists, with the majority of courts concluding that CUIPA does not authorize a private right of action. This court has adopted the majority view and, in the context of the present case, perceives no compelling reason to depart therefrom. See Starview Ventures, LLC v. Acadia Ins., supra, Superior Court, Docket No. CV 06 5003463; Maire v. Allstate Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 050550 (November 7, 1995, Skolnick, J.) (17 Conn. L. Rptr. 317, 318-19).
"[A] CUTPA claim based on an alleged unfair claim settlement practice prohibited by [General Statutes] § 38a-816(6) require[s] proof, as under CUIPA, that the unfair settlement practice ha[s] been committed or performed by the defendant with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., supra, 229 Conn. 850. "[A] CUTPA claim based on the public policy embodied in CUIPA must be consistent with the regulatory principles established therein, and . . . [t]he definition of unacceptable insurer conduct in [§ 33a-316(6)] reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention." (Internal quotation marks omitted.) Id., 850-51.
CUTPA provides a cause of action against anyone who engages in "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). CUTPA authorizes actions based upon "a method, act or practice . . ." General Statutes § 42-110g(a). In determining whether a particular act or practice violates CUTPA, our courts "have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends a public policy established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or otherwise established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]." (Internal quotation marks omitted.) Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 725, 652 A.2d 496 (1995). "All 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 . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA." (Citations omitted; internal quotation marks omitted) Id., 725-26.
In the present case, count five contains the following allegation: "The refusal by the defendant to make reasonable and necessary advances and/or to pay the full extent of the loss, including the loss of building claim, the loss of inventory/business personal property claim and the loss of business income claim, its failure to promptly respond to and/or properly investigate the plaintiff's claims, its failure to attempt to engage in a prompt, fair and equitable settlement of the plaintiff's claims, its actions in compelling the plaintiff to institute litigation to recover amounts due under the policy, and its actions in misrepresenting pertinent facts regarding the loss, constitutes a violation of General Statutes § 42-110b et seq., in that it evidences an unfair or deceptive act or practice in the conduct of any trade or commerce that is immoral, unethical, oppressive, or unscrupulous."
Count five has been adequately pleaded under the cigarette rule because it contains sufficient underlying allegations concerning the defendant's refusal to make full payment, its delayed investigation and its prompting of the present litigation to support the plaintiff's conclusion that the such actions amount to an unscrupulous practice under CUTPA.
The court denies the defendant's motion to strike count five because it finds that the plaintiff has included sufficient allegations regarding the ways in which the defendant committed a CUTPA violation. Additionally, the plaintiff's prayer for relief seeking recovery of punitive damages and attorneys fees cannot be stricken since the plaintiff has alleged a viable bad faith claim in count four and has adequately pleaded a CUTPA violation based on CUIPA in count five.
CONCLUSION
For the forgoing reasons, the defendant's motion to strike is granted as to count three and denied as to counts four and five. The motion to strike the corresponding prayer for relief seeking recovery of punitive damages and attorneys fees, is denied.
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