Opinion
No. CV-04-0092567
August 9, 2006
MEMORANDUM OF DECISION
This is the defendant's motion for summary judgment (#115) as to four counts of the plaintiff's six-count amended complaint dated October 21, 2005. For the reasons set forth below, the motion for summary judgment must be granted.
Counts Three and Four
The plaintiffs claim to be insureds under a homeowners insurance policy with the defendant, Safeco Insurance Company of America. The plaintiffs allege that a heavy winter storm caused snow and rain to accumulate on the roof of their garage, leading to its collapse. The first and second counts of the amended complaint allege that the defendant breached the policy by failing to pay claims under two different sections of the policy. The third count alleges that the defendant committed deceptive acts which are "unethical, outrageous, and oppressive" and constitute unfair trade practices under C.G.S. § 38a-815 et seq., Connecticut Unfair Insurance Practices Act ("CUIPA"). The fourth count adds allegations to the third count that the defendant's conduct was an unfair claim settlement under CUIPA.
The defendant moves for summary judgment on counts three and four because CUIPA does not authorize an independent cause of action. This is an issue on which there is no direct Supreme Court or Appellate Court authority. On the Superior Court level the courts are split.
The many Superior Court decisions on this issue will not be cited here. I find myself in accord with those courts which have determined that CUIPA does not authorize an independent cause of' action. See, for example, Perrelli v. Strathmore Farms, Judicial District of New Haven, Docket No. 428988 (March 2, 2000, Levin, J.) Therefore, the motion to strike the third and fourth counts will be granted.
Fifth and Sixth Counts
The fifth and sixth counts simply add to the allegations of the third and fourth counts the statement that: "The aforesaid conduct of defendant constitutes an unfair trade practice under Section 42a-110b of the General Statutes resulting in an ascertainable loss to plaintiffs." The defendant moves for summary judgment on the fifth and sixth counts because there is no issue of material fact as to whether the denial of the plaintiffs' claims were part of a business pattern or practice sufficient to support a claim under CUIPA.
The law is clear that to recover under CUTPA for a violation of CUIPA, the plaintiffs must establish that the defendant's wrongful conduct was part of a general business practice and not an isolated incident. Mead v. Burns, 199 Conn. 651, 659 (1986). Our Supreme Court has held that, "a violation of Section 38a-816(6) requires proof that the unfair settlement practices were committed or performed with such frequency as to indicate a general business practice." Lees v. Middlesex Insurance Co., 229 Conn. 842, 847-48 (1994). A plaintiff's allegation of unfairness in connection with a single insurance claim, which is the subject of dispute, does not establish a general business practice. Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 671-72 (1992).
The plaintiffs offer no evidence of any business practice on the part of the defendant to wrongfully deny claims as alleged by the plaintiffs. The affidavit of the plaintiff, Timothy Fetzer, attached to the plaintiffs' brief contains no evidence of a general business practice. It merely cites reasons why the defendant should not have denied the claims. In their brief the plaintiffs argue that the court may somehow infer that the defendant's conduct is part of a general business practice. No support for this claim is given and it must be rejected. There is no issue of material fact about whether the conduct of the defendant was part of a general business practice. The motion for summary judgment as to the fifth and sixth counts is granted.