Summary
In Erikson the complaint alleged that the plaintiff retained Mr. McManus as its insurance agent " to procure proper and adequate insurance for its business including the insurance coverage it had prior to... August 31, 2003.
Summary of this case from Pine Orchard Yacht & Country Club, Inc. v. Sinclair Insurance Group, Inc.Opinion
No. CV 07 5002467 S
March 27, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104
On December 26, 2007, the plaintiff, Erickson Metals Corporation, filed a revised complaint against the defendants, John McManus, Jr. (McManus) and Webster Insurance, Inc. (Webster) which alleges the following. On August 31, 2003, the plaintiff retained the defendants as its insurance agent to procure insurance for its business. The plaintiff provided the defendants with copies of the insurance policies it had in effect immediately prior to retaining the defendants and requested the same insurance coverage. On July 22, 2006, the plaintiff suffered a water damage loss at its business location in Cheshire, Connecticut. The plaintiff subsequently submitted its claim for this loss to Wassau Business Insurance Company (Wassau), the plaintiff's insurer under the policy procured by the defendants.
In this memorandum, the term "the defendants" refers to both McManus and Webster; when an individual party name is used it refers only to that party.
In response to the claim, Wassau informed the plaintiff that it refused to pay any part of the environmental expenses claim in excess of ten thousand dollars because the plaintiff's policy contained a pollution exclusion. Wassau also informed the plaintiff that it would only pay a portion of the damage claim because the policy also contained a co-insurance clause. The plaintiff claims that Wassau's refusal to pay the full amount of the losses and damages resulted from a breach of the defendants' contract with the plaintiff, whereby the defendants agreed to provide the plaintiff with adequate replacement insurance coverage, including insurance policies having no pollution exclusion or co-insurance clause.
The defendants have filed a motion to strike counts one and two, which allege breach of contract claims against the defendants, and counts five and six, which allege breach of fiduciary duty against the defendants, together with a memorandum of law. The motion to strike counts one and two is based on the defendants' claim that the revised complaint lacks a specific allegation of a promise for a particular result in the procurement of insurance and that without such promise the breach of contract claims against the defendants are legally insufficient. The plaintiff has filed an objection and memorandum of law in opposition to the motion to strike and on February 25, 2008, the court heard oral argument at short calendar. At the argument at short calendar, the plaintiff did not dispute that counts five and six should be stricken as pled and did not include any law or argument concerning the breach of fiduciary duty claims in counts five and six in its memorandum of law in opposition to the motion to strike.
The present motion to strike only addresses counts one and two; counts three (negligence against McManus) and four (negligence against Webster) are not implicated.
Based on this admission, counts five and six were stricken by agreement and, therefore, are not addressed in this memorandum of decision.
"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." 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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294.
The defendants argue that the plaintiff "fails to state a claim for breach of contract because there is no evidence that [it] made a specific request for a particular type of coverage and that [the] defendants promised a particular result. Instead, it appears that [the plaintiff] seeks to disguise a negligence claim as a breach of contract claim." The defendants further argue that "[b]reach of contract in the insurance agent/broker context should be treated no differently than in the medical malpractice context and, therefore, a plaintiff must plead and prove a promise of a specific outcome, which was not [pleaded] here."
In response, the plaintiff argues that "the allegations contained in paragraphs 6 and 9 of the First Count, construed in favor of the plaintiff . . . made a specific request, and the defendants either expressly or impliedly agreed to have provided [the plaintiff] with similar insurance coverage which it had in existence prior to August 31, 2003, including coverage that did not contain a co-insurance penalty." The plaintiff concludes that these allegations "[set] forth an independent breach of contract claim which exists irrespective of deviation from standard of care" and that the claim is "for a specific outcome beyond the duty to exercise competent and professional services.
Connecticut recognizes a cause of action against an insurance agent for failure to obtain insurance under a theory of either professional malpractice or breach of contract. See Ursini v. Goldman, 118 Conn. 554, 559-60, 173 A. 789 (1934). "It is possible for a negligence claim and a contract claim to arise out of the same facts, and a breach of contract claim may be heard in the same case claiming medical malpractice." Rosato v. Mascardo, 82 Conn.App. 396, 410, 844 A.2d 893 (2004). "Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn.App. 77, 81 (2007).
Paragraph six of count one provides in relevant part: "On or about August 31, 2003, and annually thereafter, the plaintiff . . . retained . . . McManus, as its insurance agent, to procure proper and adequate insurance for its business, including the insurance coverages it had prior thereto; specifically, the plaintiff . . . provided to [McManus] copies of its insurance policies and coverages in effect immediately prior to August 31, 2003 and requested that [he] provide at least the same coverages." Count one, paragraph nine provides in relevant part: "[a]s a consequence of [McManus'] breach of [his] agreement with [the plaintiff] to have provided proper and adequate insurance coverage for [it], including policies of insurance that did not contain a co-insurance penalty and/or a pollution exclusion, the plaintiff has incurred substantial loss and damages."
Paragraphs six and nine of count two are identical to paragraphs six and nine of count one, except that they are directed against Webster, not McManus.
Construing the allegations in the light most favorable to the plaintiff, an action for breach of contract is sufficiently alleged. The plaintiff alleges that it retained the defendants to procure insurance that was the same as it had in force at the time that the defendants were engaged. That insurance would have included coverage with no pollution exclusion or co-insurance clause since the plaintiff alleges those limitations were not included in its prior policies. Counts one and two allege specific requests by the plaintiff for the defendants to obtain a particular result; namely, the procurement for the plaintiff of the same insurance coverages that it had immediately prior to retaining the defendants. Accordingly, the breach of contract claims are sufficiently alleged.
Based on the forgoing, the defendants' motion to strike counts one and two of the revised complaint is denied.