Gianetti v. Maida

Full title: Charles D. Gianetti v. Nicholas Maida et al

Court: Superior Court of Connecticut

Date published: Dec 5, 2016

CV146051513S (Conn. Super. Ct. Dec. 5, 2016)

Opinion

CV146051513S

12-05-2016

Charles D. Gianetti v. Nicholas Maida et al

Brian T. Fischer, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE #118 AND #119

Brian T. Fischer, J.

FACTS

On December 9, 2014, the plaintiff, Charles D. Gianetti, filed a ten-count complaint against six named defendants: Nicholas Maida; ¹ Legacy Squared, LLC; Crump Life Insurance Services (Crump); Crump Secondary Markets (Crump LS); Sun Life Assurance Company of Canada (Sun Life); and the Estate of Nicholas Maida.²

1 " The defendant Nicholas Maida was [a] managing member of Defendant, Legacy Squared, LLC, in the state of Connecticut." (Compl. ¶ 2.)

2 The court sustained objections to the plaintiff's subsequently filed amended complaint and motion for permission to amend; and granted defendants Nicholas Maida's and the Estate of Nicholas Maida's motion to dismiss. The operative complaint, therefore, remains the original complaint filed on December 9, 2014; and Nicholas Maida and the Estate of Nicholas Maida are no longer parties to this action.

Count one of the complaint sounds in breach of fiduciary duty; count two in breach of contract; count three in fraudulent misrepresentation; count four in conspiracy to defraud; count five in negligent misrepresentation; count six in professional negligence; count seven in unjust enrichment; count eight in breach of the implied covenant of good faith and fair dealing; count nine is titled " Unfair Insurance Practices--CUIPA, C.G.S. § 38a-816 et seq."; and count ten sounds in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff's prayer for relief includes a request for punitive damages.

The plaintiff alleges the following facts. Based on representations made by the plaintiff's broker, Mr. Maida, the plaintiff entered into two life insurance transactions with Sun Life. Mr. Maida represented to the plaintiff that after a two-year waiting period, the plaintiff could resell the larger contract on the secondary market in order to fund the smaller one for the rest of the plaintiff's life. Crump and Crump LS made the same representations to Mr. Maida. Mr. Maida did not inform the plaintiff that language in the Sun Life policy required the plaintiff to swear that he was not entering the transaction for the purposes of reselling the policies, and the plaintiff signed the contract without such knowledge, relying on assurances of Mr. Maida that everything had been completed properly. Mr. Maida was an agent of Sun Life, Crump, and Crump LS; while Crump and Crump LS were agents of Sun Life. At the time of the purchase of the life insurance policies, the secondary market for such policies had declined, and two years later, Mr. Maida, Crump, and Crump LS were unable to sell the plaintiff's larger policy in order to fund the smaller one, and both policies lapsed for nonpayment. The present action ensued, wherein the plaintiff claims damages in the form of premiums spent, taxes paid, and loss of the benefit of the bargain, i.e., free life insurance after a two-year waiting period.

On May 22, 2015, Sun Life filed a motion to strike (Docket Entry no. 118) all counts of the complaint and the request for punitive damages on the following grounds: the defense of unclean hands, the claims are time barred, failure to sufficiently allege a cause of action, and failure to allege the degree of tortious conduct required to award punitive damages. Also on May 22, 2015, Crump and Crump LS filed a motion to strike (Docket Entry no. 119) all counts of the complaint and the request for punitive damages on the following grounds: the defense of unclean hands, the claims are time barred, failure to sufficiently allege a cause of action, and failure to allege the degree of tortious conduct required to award punitive damages. On July 21, 2015, the plaintiff filed a memorandum in opposition to Sun Life's motion to strike (Docket Entry no. 126) and a memorandum in opposition to Crump and Crump LS's motion to strike. (Docket Entry no. 125.) On August 20, 2015, Sun Life filed a reply memorandum (Docket Entry no. 127) and Crump and Crump LS also filed a reply memorandum. (Docket Entry no. 128.) Oral argument at short calendar was heard on August 8, 2016. On August 16, 2016, the plaintiff filed a post-hearing memorandum (Docket Entry no. 133) and the defendants collectively filed a reply. (Docket Entry no. 134.)

DISCUSSION

" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (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." (Emphasis in original; internal quotation marks omitted.) Id., 588. " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

Because the issues are common with respect to the majority of the plaintiff's claims, this memorandum will examine at the outset the following grounds: (i) the doctrine of unclean hands; (ii) the statutes of limitations; and (iii) whether the plaintiff has failed to allege an agency relationship upon which his claims rest.

I

UNCLEAN HANDS

The defendants argue that the plaintiff's claims are barred by the doctrine of unclean hands. In response, the plaintiff argues that unclean hands requires a question of fact that is inappropriate to consider at this stage. " No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own." Practice Book § 10-50.

" The defendant notes that Practice Book § 10-50 specifically does not require that the special defense of unclean hands be specially [pleaded] . . . We agree, however, with the plaintiff's observation that the list of special defenses in § 10-50 is illustrative rather than exhaustive . . . Practice Book § 120 [now § 10-50] lists some of the defenses which must be specially pleaded and proved . . . We agree with the plaintiff that the court properly determined that, because the defendant's claim is consistent with the allegations of the complaint, she was required to plead it as a special defense." (Citations omitted; emphasis in original; internal quotation marks omitted.) Kosinski v. Carr, 112 Conn.App. 203, 209 n.6, 962 A.2d 836 (2009). While Kosinski addressed the issue of whether the court was required to raise the defense of unclean hands sua sponte, the language of the Kosinski opinion makes clear that the special defense of unclean hands must be specially pleaded. See id. Moreover, the burden of proof lies with the defendant on a special defense; see Dubose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971); and it thereby follows that the defendant cannot circumvent this burden by way of a motion to strike. For the foregoing reasons, the ground of unclean hands does not support granting the motions to strike any of the counts alleged against the defendants.

II

STATUTES OF LIMITATIONS

The defendants argue that the plaintiff's claims are barred by the applicable statutes of limitations and that consideration of such ground is appropriate at this stage. In response, the plaintiff argues that the court may not consider this ground on a motion to strike and that the plaintiff has sufficiently pleaded tolling that would preclude ruling in favor of the defendants.

" A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . [T]he objection to this mode of pleading is that it raises no issue and deprives the plaintiff of an opportunity to reply a new promise, or an acknowledgement . . . A motion to strike might also deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense . . . In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right--it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). See also Practice Book § 10-50 (" [T]he statute of limitations . . . must be specially pleaded . . .").

The Forbes opinion is instructive as to the first exception: " Counts five through eleven of the plaintiffs' complaint stated all dates on which the alleged negligent acts occurred. The trial court held that because all the dates were pleaded, all facts necessary to determine if the cause of action was barred by the statute of limitations were also pleaded. Therefore, the trial court held, pursuant to Vilcinskas v. Sears, Roebuck & Co., [144 Conn. 170, 171-72, 127 A.2d 814 (1956)], that this was an instance in which the statute of limitations defense could be raised by a motion to strike.

" The trial court misconstrued our Supreme Court's holding in Vilcinskas . In that case, the parties agreed that all facts necessary to the determination of whether the statute of limitations defense applied were set forth in the complaint. Therefore, there was no need to wait for an answer to determine if the statute of limitations defense could be avoided if the answer could provide no new information. Here, however, there is no such agreement. The complaint did not state facts that the plaintiffs believed would toll the statute of limitations on their claims. The plaintiffs contend, as they have throughout these proceedings, that additional facts are necessary to prove that the claim is not time barred. The plaintiffs should be given the opportunity affirmatively to plead fraudulent concealment in avoidance of the statute of limitations defense pursuant to General Statutes § 52-595." (Footnotes omitted.) Forbes v. Ballaro, supra, 31 Conn.App. 240-41. " The plaintiffs correctly note that they are not required to plead facts in anticipation of the defense of the statute of limitations." Id., 241 n.9.

Persuasive authority exists for the proposition that " [u]nder the reasoning of Forbes, a plaintiff merely contending that additional facts are needed can form the basis of an improper use of the motion to strike." Grimes v. Darien, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013917-S, (January 17, 2013, Karazin, J.T.R.). See also Doe v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-14-5016102-S, (February 19, 2015, Young, J.) (plaintiff's argument that different statute of limitations should apply and disagreement with defendant's argument that all necessary facts have been pleaded to determine the issue of equitable tolling are sufficient to dismiss motion to strike). In the present case, the plaintiff has not agreed that the complaint sets forth all the facts necessary to determine whether the actions are time barred. (See Pl.'s Opp'n at 11 n.2, Docket Entry no. 126.) Therefore, the first exception allowing for the statute of limitations to be raised in a motion to strike has not been met.

" The second [exception] is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced . . ." (Internal quotation marks omitted.) Forbes v. Ballaro, supra, 31 Conn.App. 239-40. Counts one through eight are actions existing at common law. See State v. Acordia, Inc., 310 Conn. 1, 26, 73 A.3d 711 (2013) (fiduciary duty); Cheryl Terry Enters. v. City of Hartford, 270 Conn. 619, 631, 854 A.2d 1066 (2004) (breach of contract); Kramer v. Petisi, 285 Conn. 674, 684 n.9, 940 A.2d 800 (2008) (fraudulent misrepresentation); American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 99-100, 920 A.2d 357 (2007), rev'd on other grounds, 302 Conn. 494, 28 A.3d 976 (2011) (conspiracy); Giametti v. Inspections, Inc., 76 Conn.App. 352, 361, 824 A.2d 1 (2003) (negligent misrepresentation); Doe v. Priority Care, Inc., 50 Conn.Supp. 385, 390, 933 A.2d 755 (2007) (professional negligence); Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) (unjust enrichment); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-67, 479 A.2d 781 (1984) (implied covenant of good faith and fair dealing). Therefore, counts one through eight may not be dismissed on the ground of statute of limitations.

Count nine of the complaint is titled " Unfair Insurance Practices--CUIPA, C.G.S. § 38a-816 et seq."; but paragraphs 128 and 129 of the complaint may be construed as a claim for violation of CUTPA based on an alleged violation of CUIPA, rather than as a CUIPA claim standing on its own. See Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 645, 804 A.2d 180 (2002). Accordingly, for the purposes of the motions to strike count nine on the ground that the claim is time barred, this memorandum will analyze such argument subsequent to addressing the argument to strike count ten on the same ground.

Count ten sounds in violation of CUTPA.³ " [T]he private cause of action created by CUTPA reaches conduct well beyond that proscribed by any common law analogue." Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994). General Statutes § 42-110g(f) fixes the time within which a claim may be brought under CUTPA, and such limitation " applies to all claims brought under CUTPA without regard to the nature of the underlying unfair trade practice that has been alleged." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606-07, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). Thus, the defendants may raise the defense of statute of limitations on a motion to strike count ten.

3 Mistakenly labeled count nine, this memorandum will refer to the portion of the complaint titled " Unfair, Deceptive Business Trade Practices--CUTPA, C.G.S. § 42-110a, et seq." as count ten per the order set out in the complaint.

Section 42-110g(f) provides the following: " An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Within the context of § 42-110g(f), our Appellate Court has declared that " [i]t is axiomatic that [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn.App. 608. " The continuing course of conduct doctrine is conspicuously fact-bound." Giulietti v. Giulietti, 65 Conn.App. 813, 834, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95; 258 Conn. 947, 788 A.2d 96; 258 Conn. 947, 788 A.2d 97 (2001). " [W]e note that a motion to strike is essentially a procedural motion that focuses solely on the pleadings. Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the facts alleged in the plaintiffs' amended complaint . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." (Citations omitted; internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 271-72, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).

Here, the court is without the necessary facts to make a determination on tolling. Since the plaintiff's claims in the present case are premised on alleged misrepresentations made by the defendants, the court would need to examine facts outside of the complaint in order to determine whether the alleged acts were a continuing course of conduct sufficient to toll § 42-110g(f), and if they were, for how long did such misrepresentations toll the plaintiff's claims, e.g., on what date occurred every alleged omission or affirmative act of misrepresentation referred to in the complaint. In accordance with the above-cited authority, to consider such facts is improper at this stage. For the foregoing reasons, the ground of statute of limitations is not a sufficient basis on which to grant the motions to strike count ten.

Returning to count nine--an action under CUIPA is distinct from an action at common law. See Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 624 n.14, 119 A.3d 1139 (2015). " [T]he legislature has not expressly provided a specific statute of limitation provision for CUIPA claims . . ." Lees v. Middlesex Ins. Co., 219 Conn. 644, 654, 594 A.2d 952 (1991), aff'd, 229 Conn. 842, 643 A.2d 1282 (1994). It would be anomalous, however, to apply anything other than the applicable CUTPA statute of limitations, § 42-110g(f), to a CUTPA claim premised on a violation of CUIPA. See id. Because the court may construe count nine as a CUTPA claim premised on a violation of CUIPA, the court shall analyze the CUIPA claim within the same statute of limitations applied to the CUTPA claim.⁴ The court may, therefore, apply § 42-110g(f) to such claims, and accordingly, the ground of statute of limitations is not a sufficient basis on which to grant the motions to strike count nine. For the foregoing reasons, the ground of statute of limitations does not support granting the motions to strike any of the counts.

4 Even if the court were to conclude that the plaintiff is alleging a violation of CUIPA standing alone, i.e., not as a violation of CUTPA, persuasive authority exists that the relevant statute of limitations in such case is General Statutes § 52-577, which provides for a three-year statute of limitations that begins to run " from the date of the act or omission complained of." See Grant v. New Haven, Superior Court, judicial district of New Haven, Docket No. 382068 (February 3, 1998, Blue, J.) (21 Conn.L.Rptr. 340, 340-41), . " General Statutes § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139-40, 907 A.2d 1220 (2006).

III

AGENCY

In response to the defendants' argument with respect to agency, the plaintiff counters that this ground is inappropriate at the motion to strike stage because the existence of an agency relationship is " purely factual"; (Pl.'s Opp'n at 16, Docket Entry no. 125.00); (Pl.'s Opp'n at 17, Docket Entry no. 126.00); and " [t]he plaintiff has alleged, factually, despite defense claims of 'conclusory allegations' that these defendants were part an [sic] parcel of the entire relationship to support Dr. Gianetti's investment policy. He relied upon all of them, to his detriment." (Pl.'s Post Hr'g Mem. at 2, Docket Entry no. 133.)

" Our Supreme Court set forth the basic principles for determining the existence of an agency relationship in Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006). 'Under § 1 of 1 Restatement (Second) of Agency (1958), [a]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding.' (Internal quotation marks omitted.) Id., 543-44." Hollister v. Thomas, 110 Conn.App. 692, 705-06, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). While the existence of an agency relationship is a question of fact, the complaint must allege a factual basis for such a relationship in order to survive a motion to strike, rather than mere conclusions of law. See id., 705-07. The plaintiff's reliance on Nat'l Publ'g. Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 949 A.2d 1203 (2008), for the premise that it is inappropriate to consider failure to sufficiently allege agency at the motion to strike stage, is misplaced. While National Publishing Co. also cited Wesley v. Schaller Subaru, Inc., supra, 543, for the proposition that " [t]he existence of an agency relationship is a question of fact, " the Supreme Court in National Publishing Co. was reviewing whether a requested jury charge was supported by the evidence at trial; National Publishing Co. v. Hartford Fire Ins. Co., supra, 287 Conn. 676-78; which is procedurally inapposite to a motion to strike.⁵

5 " Because of the fact-centered nature of the agency inquiry, we cannot make any determination regarding whether J.M. Layton was, or was not, Hartford's agent." National Publishing Co. v. Hartford Fire Ins. Co., supra, 287 Conn. 678, citing State v. Lawrence, 282 Conn. 141, 156, 920 A.2d 236 (2007), for the proposition that an " appellate tribunal does not assess credibility or find facts; does not retry, but reviews proceedings of trial court."

The complaint is devoid of any allegations that the defendants had a right to control Mr. Maida. The reasoning set out in Hollister applies to the present case. In Hollister, our Appellate Court found that allegations that the defendant instructed the alleged agent to perform a task was insufficient without alleging the defendant's control over the performance of that task. Hollister v. Thomas, supra, 110 Conn.App. 706-07. Specifically, the court reasoned as follows: " Although the plaintiff's complaint alleged that Thomas Janesky acted as Brown's agent, the complaint failed to allege the facts necessary to prove the existence of such a relationship. For example, there was no allegation that Brown had the right to control the work of Thomas Janesky. Rather, the fourth amended complaint alleged that Brown 'instructed' Thomas Janesky that 'the work was not that difficult for him to proceed with' and 'directed him to carry out certain plumbing and piping installation responsibilities in accordance with that instruction.' A mere direction to perform a task does not imply control over the performance of that task. Likewise, the plaintiff's allegation that Brown 'maintained control and responsibility for the plumbing and piping installation work' does not allege a right to control the work of Thomas Janesky. Further, there were scant facts alleged that elaborate on the relationship between Thomas Janesky and Brown other than the use of the labels 'agent' and 'subcontractor.'" Id. As in Hollister, the plaintiff in the present case fails to allege that the defendants had the right to control the work of Mr. Maida. Likewise, the plaintiff here makes use of the term " agent" to describe Mr. Maida throughout the complaint, without having once alleged the defendants' right of control necessary to support that label. For the foregoing reasons, the plaintiff has failed to sufficiently allege facts necessary to support an agency relationship between Mr. Maida and the defendants. As a result, the plaintiff's allegations with respect to the conduct of Mr. Maida cannot be imputed to the defendants.

The plaintiff makes a conclusory allegation that Crump and Crump LS were the agents of Sun Life. (Compl. ¶ 54.) (" As Sun Life's appointed agent, Defendants Sun Life, Crump and Crump LS are responsible for Maida's false representations about the value of the Policies on the life settlement market, which false representations were material to Dr. Gianetti's purchase of the Policies.") The court is unable to find any allegation within the complaint as to whether Sun Life possessed any control over the work of Crump and Crump LS. Consequently, the plaintiff has also failed to sufficiently allege that Crump and Crump LS were the agents of Sun Life--and as a result, the plaintiff's allegations with respect to the conduct of Crump and Crump LS cannot be imputed to Sun Life.

In sum, the plaintiff failed to sufficiently allege that Mr. Maida acted as agent for the defendants; and, in the same manner, failed to sufficiently allege that Crump and Crump LS acted as agents for Sun Life. As a result, the plaintiff's reliance on the argument that he successfully alleged agency cannot form a viable basis for any of his further arguments.

IV

LEGAL INSUFFICIENCY

Count one of the complaint sounds in breach of fiduciary duty. The defendants argue that the plaintiff has failed to sufficiently allege a cause of action in that the plaintiff has failed to allege a fiduciary relationship giving rise to a duty, let alone a breach thereof. In response, the plaintiff argues that Sun Life is alleged to have had a fiduciary duty based on the Sun Life policies.

As to these arguments, it is instructive our Supreme Court's opinion in Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 620. " It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary . . .

" Even when construed in a light most favorable to the plaintiffs, the complaint in the present case alleged no more than that the plaintiffs enjoyed a contractual relationship with the defendants, whereby the defendants agreed to procure an annuity at a certain cost and worth a certain value in order to fund the plaintiffs' structured settlements. Although this relationship imposed upon the defendants a duty to act in accordance with the terms of the settlements, it was not marked by the unique degree of trust and confidence typically characteristic of a fiduciary relationship . . . For example, the defendants had no discretion to invest the plaintiffs' settlement money in such a way as to produce the highest possible income stream for their benefit. If they had, the plaintiffs would have relied solely on the defendants' superior investment knowledge and expertise to make prudent choices on their behalf in order to attain the greatest value for their money. Because such a scenario would have many of the hallmarks traditionally associated with a fiduciary relationship, it would be more likely to form the basis for a claim of breach of fiduciary duty than the actual facts in the present case, where the defendants assumed only a contractual obligation to procure annuities at a certain cost and value as part of the plaintiffs' settlements." (Citations omitted; emphasis added; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 640-41 (motion to strike claim for breach of fiduciary duty).

The plaintiff here does not allege in any way that Sun Life was under any kind of duty to further the interests of the plaintiff other than to act in accordance with the terms of the life insurance policy, and the plaintiff has not alleged that Sun Life failed to do that. Similar to the defendants in Macomber, Crump and Crump LS are alleged to have brokered an insurance policy at a certain cost and worth a certain value, but never are Crump or Crump LS alleged to have " discretion to invest the [plaintiff's] . . . money in such a way as to produce the highest possible income stream for [his] benefit." Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 641. Moreover, the plaintiff has alleged that it is Mr. Maida with whom he entered into agreement for the procurement of life insurance. (Compl. ¶ 75.) (" Defendant Maida individually and on behalf of Legacy Squared, entered into an agreement with Dr. Gianetti to procure $4 million of life insurance for Dr. Gianetti, whereby $3 million of the coverage would have a value as a life settlement for an amount to pay premiums on the $1 million policy through Dr. Gianetti's lifetime . . .") Therefore, the court shall grant the motions to strike count one of the complaint.

Count two of the complaint sounds in breach of contract. The defendants argue that the plaintiff's allegations of breach of contract are couched exclusively in an alleged oral agreement between Mr. Maida and the plaintiff. Sun Life further notes that the plaintiff has failed to allege any breach of the only contract that existed between the defendant and the plaintiff, the life insurance policy.

" 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.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). Aside from the actual insurance policy contract with Sun Life, the plaintiff has failed to allege the formation of any agreement between the plaintiff and Sun Life, Crump, or Crump LS that they could have possibly breached, let alone are alleged to have breached. The plaintiff seems to argue that it has alleged a breach of contract based on the insurance policy. " Based on the purchase of the Sun Life policies, Sun Life had a contractual and fiduciary duty to Dr. Gianetti, which it breached, as alleged in the complaint." (Pl. Mem. Opp'n at 15, Docket Entry no. 126.) The plaintiff makes this argument without pointing to where in the complaint such an allegation was made. The court, likewise, is unable to find any allegation within the complaint that could be construed in such a manner. Therefore, the plaintiff's related argument fails. See Faulkner v. United Technologies Corp., supra, 240 Conn. 580. Correspondingly, the court shall grant the motions to strike count two of the complaint.

Count three sounds in fraudulent misrepresentation. The defendants argue that the plaintiff has failed to allege a misrepresentation made by the defendants, but rather relies on the failing argument that Mr. Maida is alleged to have been their agent, and that Mr. Maida is alleged to have made misrepresentations to the plaintiff. The plaintiff argues that he has alleged that Crump and Crump LS made misrepresentations directly to Mr. Maida, the plaintiff's broker.

" The essential elements of an action in common law fraud, as we have repeatedly held, are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010) (motion to strike claim of fraudulent misrepresentation). " While some connection, direct or indirect, between a party charged with making false representations and a party relying thereon must be shown, it is not essential, in support of a cause of action for damages resulting from false representations, that the false representations be shown to have been made directly to the party claiming to have relied upon them. It has been repeatedly held that where a party makes false representations to another with the intent or knowledge that they be exhibited or repeated to a third party for the purpose of deceiving him, the third party, if so deceived to his injury, can maintain an action in tort against the party making the false statements . . ." (Internal quotation marks omitted.) Giulietti v. Giulietti, supra, 65 Conn.App. 842-43.

The plaintiff alleges the following. " Defendants Crump and Crump LS aided and abetted Maida by providing him with assurances that any policies sold to Dr. Gianetti would be sold profitably upon the expiration of their two-year contestability provisions." (Compl. ¶ 16.) " At the time, there was considerable known risk within the industry that the policies could not be sold and, even if they were, that the sale would be much less than what Defendant Maida had promised." (Compl. ¶ 22.) " Defendant Maida continued to rely on baseless representations from Aaron Caplan and Roger Reilly at Defendant Crump and on behalf of Crump LS." (Compl. ¶ 23.) " Defendant Maida lacked any reasonable basis for making the claims he made to induce Dr. Gianetti to buy the Policies, as was also true for Defendants, Crump and Crump LS's claims to Maida." (Compl. ¶ 24.) " Defendant Maida also informed Dr. Gianetti that Defendant, Crump, represented that there were such buyers of life insurance policies under the terms Maida represented to Dr. Gianetti." (Compl. ¶ 25.) " On information and belief, Defendants Crump and Crump LS were aware of the representations Defendant Maida made to Dr. Gianetti." (Compl. ¶ 30.) Defendants Crump and Crump LS were experts in the life settlement brokerage business. (Compl. ¶ 33.) " On information and belief, Defendant Crump actively solicited agents to promote to their clients planned life settlements by misrepresenting the life settlement market and failing to disclose the significant risks, such as those which materialized in Dr. Gianetti's case and others." (Compl. ¶ 44.) " That Defendant Maida relied upon the expertise of Defendant, Crump, is evidenced in an e-mail dated February 7, 2011, from Defendant Maida to Aaron Caplan and Roger Reilly of Defendant Crump regarding the planned settlement prior to Plaintiff Dr. Gianetti's purchase of the Sun Life policies. This e-mail further demonstrates that Defendant, Maida, did not possess the knowledge and expertise he represented to Plaintiff Dr. Gianetti which induced Dr. Gianetti to purchase the Sun Life policies as well as the potential value of the policies." (Compl. ¶ 42.) " In relevant part, the February 7, 2011 email from Defendant Maida to Defendant Crump referenced above states 1) that Plaintiff, Dr. Gianetti 'decided to obtain the Sun Life coverage' with Defendant Maida's 'counsel which was based, in large part on my conversations with Aaron.' 2) That the Sun Life policies 'if needed, would be in place. If not they could be sold.'" (Compl. ¶ 45.) Once Mr. Maida realized that there were no interested buyers for the plaintiff's life insurance policy, after having " made a couple of overtures directly to vendors, " he contacted defendant Crump via email to ask for " feedback." (Compl. ¶ 45.) " On information and belief, Defendants Crump and Crump LS had similar or even greater expertise than Defendants Maida and Legacy Squared. In fact, Defendants Crump and Crump LS were aware of the representations made to Dr. Gianetti by Defendants Maida and Legacy Squared as agents of Defendants Crump and Crump LS, [sic] induce Dr. Gianetti to buy the Policies premised on the assurance that Dr. Gianetti would be able to profitably sell them upon the expiration of the 2-year policy anniversary of each policy." (Compl. ¶ 63.) " Dr. Gianetti reasonably and justifiably relied on Defendant Maida's representations . . ." (Compl. ¶ 90.) " Dr. Gianetti suffered serious financial injury as a result of his reliance on Defendant Maida's fraudulent statements . . . all made while acting as agent for Defendant Sun Life and agent and coconspirators and joint venturers of Defendants Crump and Crump LS." (Compl. ¶ 91.)

Here, the plaintiff alleges false representations made by Crump and Crump LS to Mr. Maida; (Compl. ¶ ¶ 16, 23); Crump and Crump LS knew or should have known that the representations were false; (Compl. ¶ ¶ 22, 24, 33, 63); Crump and Crump LS made the misrepresentations to induce the plaintiff into entering into the life insurance transactions; (Compl. ¶ ¶ 30, 44); and the plaintiff acted in reliance on the alleged misrepresentations and suffered resulting financial injury. (Compl ¶ ¶ 25, 42, 45, 90, 91.)

Crump and Crump LS argue that the alleged misrepresentations cannot--as a matter of law--support a claim for negligent misrepresentation because they were mere promises of a future event, rather than statements of fact. In Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.2d 929 (2005), our Supreme Court addressed the issue as follows: " Dress Barn questions whether the statements in the letter of intent can be considered statements of fact because it couched them in terms of what it anticipated or expected and because completion of the events were conditioned on its satisfaction with the due diligence investigation . . . We have not yet addressed whether statements of judgment or statements conditioned on future events can support a claim for misrepresentation, although many other jurisdictions have adopted a position against such claims . . . This court previously has concluded, however, that an estimate based on professional judgment could provide a basis for misrepresentation . . . In light of our conclusion that the plaintiffs have failed to prove pecuniary harm resulting directly from the statements at issue, we need not determine exactly how to characterize them." (Citations omitted; internal quotation marks omitted.) Id., 75 n.32. In accordance with this authority, it would be inappropriate for the court to strike count three on such grounds. Thus, the court shall deny Crump's and Crump LS' motion to strike count three of the complaint.

The only paragraph within the complaint that could be construed to allege a misrepresentation on the part of Sun Life is paragraph 87. " Among other things, Defendants omitted the material fact that these transactions contained significant risks, in that it was unlikely that Dr. Gianetti would be able to sell Policy 1." (Compl. ¶ 87.) " Regarding the duty to disclose, the general rule is that . . . silence . . . cannot give rise to an action . . . to set aside the transaction as fraudulent . . . A duty to disclose will be imposed, however, on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak." (Citation omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 636. The plaintiff's mere allegation of silence on the part of Sun Life are not sufficient to allege fraudulent misrepresentation. Accordingly, the court shall grant Sun Life's motion to strike count three of the complaint.

Count four sounds in conspiracy to defraud. The defendants argue that the plaintiff has failed to sufficiently allege conspiracy to defraud because the plaintiff has failed to sufficiently allege agency. The plaintiff responds by arguing that his allegations of agency are sufficient. The defendants also argue that the plaintiff's claim for conspiracy to defraud fails because it is based on conclusions of law rather than factual allegations.

" In order to survive a motion to strike a civil conspiracy count, the plaintiffs must properly allege: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 647. Accordingly, the motions to strike count four on the ground that it was not sufficiently pleaded does not hinge on agency. It is enough to allege that Mr. Maida, acting on his own behalf, committed fraud pursuant to and in furtherance of a scheme created in combination with the defendants that harmed the plaintiff. See id.

The plaintiff makes the following relevant allegations. " Through Defendant Maida, Dr. Gianetti learned about purchasing a life insurance policy to later sell it in the life settlement marketplace. Defendant Maida stated that seniors buying policies and then later selling them was proper, increasing in popularity and was 'risk-free.'" (Compl. ¶ 15.) " At the time of the transaction Defendant Maida knew or should have known that the life settlement market had dramatically declined and should have informed Dr. Gianetti of this and other risks. He failed to do so." (Compl. ¶ 17.) " At the time of the purchase of the policies, the life settlement market had significantly declined as the Life Expectancy Tables (LE) were revised upwards by 25-30%." (Compl. ¶ 21.) " At the time, there was considerable known risk within the industry that the policies could not be sold and, even if they were, that the sale would be much less than what Defendant Maida had promised." (Compl. ¶ 22.) " Defendant Maida's representation to Dr. Gianetti that the future settlement and sale of these policies as a 'sure thing' was false and known or should have been known to be false by Defendant, Maida, when made to Dr. Gianetti." (Compl. ¶ 38.) " Defendant Maida knew or should have known that there was no reasonable basis for his representations, as Defendant Maida failed to obtain the requisite life expectancy reports on Plaintiff Dr. Gianetti." (Compl. ¶ 39.) " That Defendant Maida relied upon the expertise of Defendant, Crump, is evidenced in an e-mail dated February 7, 2011, from Defendant Maida to Aaron Caplan and Roger Reilly of Defendant Crump regarding the planned settlement prior to Plaintiff Dr. Gianetti's purchase of the Sun Life policies. This e-mail further demonstrates that Defendant, Maida, did not possess the knowledge and expertise he represented to Plaintiff Dr. Gianetti which induced Dr. Gianetti to purchase the Sun Life policies as well as the potential value of the policies." (Compl. ¶ 42.) " In relevant part, the February 7, 2011 email from Defendant Maida to Defendant Crump referenced above states 1) that Plaintiff, Dr. Gianetti 'decided to obtain the Sun Life coverage' with Defendant Maida's 'counsel which was based, in large part on my conversations with Aaron.' 2) That the Sun Life policies 'if needed, would be in place. If not they could be sold.'" (Compl. ¶ 45.) Once Mr. Maida realized that there were no interested buyers for the plaintiff's life insurance policy, after having " made a couple of overtures directly to vendors, " he contacted defendant Crump via email to ask for " feedback." (Compl. ¶ 45.) " Defendant Maida orchestrated this scheme in order to generate generous commissions to himself, increase income to Defendants, Crump and Crump LS, and generate premium dollars for Sun Life, all at the expense of Dr. Gianetti." (Compl. ¶ 53.) " Dr. Gianetti, at all times relevant to this Complaint relied upon Defendants Maida and Legacy Squared's experience, skill, good faith and knowledge specializing in life insurance products, as agents of Defendants Crump and Crump LS." (Compl. ¶ 68.) " In order to obtain larger commissions for himself, Defendant Maida wrongfully advised Dr. Gianetti to secure two life insurance policies with the false promise that Dr. Gianetti would later be able to sell the $3 million policy for a profit . . ." (Compl. ¶ 87.) " Dr. Gianetti reasonably and justifiably relied on Defendant Maida's representations . . ." (Compl. ¶ 90.) " Dr. Gianetti suffered serious financial injury as a result of his reliance on Defendant Maida's fraudulent statements . . . all made while acting as agent for Defendant Sun Life and agent and coconspirators and joint venturers of Defendants Crump and Crump LS." (Compl. ¶ 91.) In count four, " [t]he Plaintiff repeats and re-alleges the allegations contained in paragraphs 1 through 93 in Plaintiff's Complaint as if fully set forth [therein]." (Compl. ¶ 94.) " Defendant Maida as agent for Defendant Sun Life and co-conspirator and agent of Crump, made material misrepresentations to Dr. Gianetti, as alleged herein, knowing that the material misrepresentations were false, or made the material misrepresentations with reckless disregard for their truth, all in furtherance of the conspiracy to defraud." (Compl. ¶ 95.) " Defendant Maida knowingly made these material misrepresentations and omissions in furtherance of the conspiracy to defraud and with the intent of inducing Dr. Gianetti to rely on them. Dr. Gianetti did not know or suspect that he was being deceived by Defendant Maida or that Defendant Maida was making false representations in insurance applications on Dr. Gianetti's behalf." (Compl. ¶ 98.)

The plaintiff alleges that Mr. Maida made false representations of fact; (Compl. ¶ ¶ 15, 21, 22, 38); to induce the plaintiff to enter into the life insurance transaction; (Compl. ¶ 53, 87); and that the plaintiff relied on Mr. Maida's representation in entering into the transaction; (Compl. ¶ ¶ 68, 90, 91). However, the plaintiff must also plead facts supporting the conclusion that Mr. Maida knew of the falsity of his representations, or made them with reckless disregard for the truth . See Sturm v. Harb Development, LLC, supra, 298 Conn. 142 (" In contrast to negligent representation, [a] fraudulent representation . . . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it . . . This is so because fraudulent misrepresentation is an intentional tort." [Citations omitted; internal quotation marks omitted.]) The absence of these facts in count four of the plaintiff's complaint is where his claim fails. Allegations as to what Mr. Maida knew or should have known; (Compl. ¶ ¶ 17, 38, 39); are insufficient to allege the requisite state of mind for fraudulent misrepresentation. The plaintiff's conclusory allegations that Mr. Maida's representations were made knowing of their falsity or with reckless disregard for their truth; (Compl. ¶ ¶ 95, 98); are belied by contrasting allegations incorporated into count four; (Compl. ¶ 94); that plainly allege factual evidence that Mr. Maida lacked the expertise he represented having to the plaintiff, and instead relied on Crump and Crump LS to the plaintiff's detriment. (Compl. ¶ ¶ 42, 45.) The plaintiff, therefore, has failed to allege fraudulent misrepresentation against Mr. Maida. As a result, the plaintiff has also failed to allege conspiracy to defraud based on the actions of Mr. Maida. For the foregoing reasons, the court shall grant the defendants' motions to strike count four.

Count five sounds in negligent misrepresentation. The defendants argue that the count should be stricken for failure to allege both proximate cause and damages. " Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). " Liability for negligent misrepresentation may be placed on an individual when there has been a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Internal quotation marks omitted.) Johnnycake Mt. Assocs. v. Ochs, 104 Conn.App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).

As discussed previously, the plaintiff has sufficiently alleged that he relied on misrepresentations made by Crump and Crump LS. In alleging the plaintiff's reliance on the conduct of Crump and Crump LS, he has also successfully alleged that such conduct was the proximate cause of his alleged harm. See Sturm v. Harb Development, LLC, supra, 298 Conn. 142-43. As to Sun Life, the only allegation that possibly could be construed to allege a misrepresentation, on the other hand, is found within paragraph 87 of the plaintiff's allegations of fraudulent misrepresentation; (Compl. ¶ 87) (" [a]mong other things, Defendants omitted the material fact that these transactions contained significant risks, in that it was unlikely that Dr. Gianetti would be able to sell Policy 1"); which is incorporated into his claim for negligent misrepresentation. (Compl. ¶ 101.) The plaintiff also alleges, however, that language in the Sun Life policy required the plaintiff to swear that he was not entering into the transaction for the purposes of reselling. " On or about September 30, 2008, Defendant Maida explained to Dr. Gianetti that he had completed the applications needed to have $4 million of life insurance issued. Dr. Gianetti, however, did not have an opportunity to fully review the applications and other paperwork based on Defendant Maida's assurance that everything was completed appropriately. Dr. Gianetti then signed certain pages of documents within the stacks of paper as directed by Defendant Maida." (Compl. ¶ 18.) " Defendant Maida failed to inform Dr. Gianetti that the purchase of life insurance intended to be resold to an investor who lacked an insurable interest in the insured's life was, at the time, a contested and disfavored transaction. Defendant Maida concealed from Dr. Gianetti that that [sic] to accomplish the purchase of the insurance policies, the applications would have to be completed to falsely represent that the policies were not being purchased for the purpose of resale. This deceitful conduct exposed Dr. Gianetti to the risk that the policies would later be challenged." (Compl. ¶ 19.) These allegations run directly counter to construing paragraph 87 to allege an omission on the part of Sun Life as to the risks of reselling the policy.

As to damages, the argument made by the defendants that the plaintiff has failed to allege damages because the plaintiff received what he paid for, i.e., life insurance coverage for as long as the plaintiff paid the premiums, is misplaced. The plaintiff argues that he bargained for life insurance policies that would, after two years, enable him to--without risk and without committing fraud--receive free life insurance for the rest of his life. (See Pl.'s Reply at 4-6, Docket Entry no. 125.) Whether the plaintiff's understanding was a reasonable one is not at issue for the purposes of a motion to strike. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995) (" We have consistently held that reasonableness is a question of fact for the trier to determine based on all of the circumstances"). The plaintiff, by alleging that he did not receive what was bargained for, has alleged damages sufficient to survive a motion to strike. See Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 646. For the foregoing reasons, the court shall grant the motion of Sun Life and deny the motions of Crump and Crump LS to strike count five.

Count six sounds in professional negligence. The defendants argue that the plaintiff has failed to allege causation and damages. The defendants also argue that the plaintiff has failed to allege a professional relationship, and that, for this reason, the plaintiff has failed to sufficiently allege a claim for professional negligence. The plaintiff responds that a professional relationship, causation, and damages were alleged against Mr. Maida and that Mr. Maida was the agent of the defendants, and therefore the allegations against Mr. Maida are against the defendants as principals.

" [P]rofessional negligence or malpractice [is] 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." (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). " 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 . . . The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Id., 225-26.

As already concluded, the plaintiff has failed to sufficiently allege that Mr. Maida acted as an agent of the defendants. Accordingly, allegations that Mr. Maida owed a professional duty to the plaintiff cannot be construed as allegations that the defendants owed the plaintiff the same duty. The paragraphs that make up count seven make no mention of a duty that the defendants directly owed to the plaintiff, but instead rely exclusively on the alleged professional duty Mr. Maida owed to the plaintiff as the plaintiff's " longtime insurance agent and financial advisor." (Compl. ¶ 110.) Because the plaintiff fails to allege duty against the defendants, the court shall grant the motions to strike count six of the complaint. Given this conclusion, the court need not entertain the defendants' use of the term " professional relationship" to define duty, or what such term may encompass under the circumstances of the present action.

Count seven sounds in unjust enrichment. The defendants argue that the plaintiff has failed to allege that any payment was unjustly withheld to the plaintiff's detriment. " Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff . . . The doctrine's three basic requirements are that (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment . . . All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine." (Citation omitted.) Gagne v. Vaccaro, supra, 255 Conn. 409.

While the plaintiff here successfully alleges that the defendants were benefitted in the form of commissions and insurance premiums received, the plaintiff fails to indicate that the corresponding insurance coverage was not provided by Sun Life, or that Crump or Crump LS withheld any payments or services from the plaintiff. The plaintiff makes no argument in opposition. Therefore, the court shall grant the motions to strike count seven.

Count eight sounds in breach of the implied covenant of good faith. The defendants argue that the plaintiff's contractual claims are based on an alleged oral agreement between Mr. Maida and the plaintiff, and that the plaintiff has failed to allege agency necessary to impute this alleged agreement to the defendants. " [T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). " [N]o claim for breach of the duty of good faith and fair dealing will lie for conduct occurring prior to, or during, the formation of a contract." Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 638.

Because the plaintiff has failed to allege a contract between himself and Crump and Crump LS he has failed to allege a necessary element of a cause of action for the breach of the implied covenant of good faith and fair dealing. Although the plaintiff has alleged that he entered into a transaction with Sun Life for the provision of insurance coverage, he has failed to allege any conduct on the part of Sun Life occurring post-execution of the life insurance contract that could be construed as being in bad faith. The plaintiff makes no argument in opposition. Therefore, the court shall grant the motions to strike count eight of the complaint.

Count nine of the complaint is titled " Unfair Insurance Practices--CUIPA, C.G.S § 38a-816 et seq." The defendants argue that there is no private right of action under CUIPA, § 38a-815 et seq. As previously noted, the court shall read count nine of the plaintiffs' complaint as an allegation that the defendants have violated CUTPA, § 42-110a et seq., by committing a violation of CUIPA, rather than as a CUIPA claim standing on its own. See Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 645. For this reason, the argument that CUIPA does not provide for a private cause of action is not a sufficient ground for granting the motions to strike count nine.

The defendants argue that the plaintiff has failed to allege an act by the defendants constituting a violation of CUIPA, but rather improperly relies on the alleged acts of Mr. Maida. The complaint fails to specify which of the twenty-two enumerated violations in § 38a-816 that the defendants are alleged to have violated. In opposition to the motions to strike count nine, the plaintiff also fails to indicate which of the definitions of an unfair or deceptive act in the business of insurance in § 38a-816 encompasses the acts alleged to have been committed by defendants. The only allegations that seem to fit within the ambit of CUIPA are related to misrepresentation. See § § 38a-816(1)⁶ and 38a-816(8).⁷ Because misrepresentation may also form the valid basis of a CUTPA claim; see Willow Springs Condo. Ass'n v. Seventh BRT Dev. Corp., 245 Conn. 1, 41, 717 A.2d 77 (1998); and the plaintiff's CUIPA claim is to be construed as an alleged violation of CUTPA, this memorandum will address the motions to strike count nine within the analysis of the motions to strike count ten.

6 " Misrepresentations and false advertising of insurance policies. Making, issuing or circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement, sales presentation, omission or comparison which: (A) Misrepresents the benefits, advantages, conditions or terms of any insurance policy . . ." § 38a-816(1).

7 " Misrepresentation in insurance applications. Making false or fraudulent statements or representations on or relative to an application for an insurance policy for the purpose of obtaining a fee, commission, money or other benefit from any insurer, producer or individual." § 38a-816(8).

Count ten of the complaint sounds in violation of CUTPA, General Statutes § 42-110a et seq. The defendants argue that the plaintiff has failed to allege an act by the defendants constituting a violation of CUTPA, but rather improperly relies on alleged acts of Mr. Maida. " The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the 'complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient." (Internal quotation marks omitted.) J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 512-13, 137 A.3d 894, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016).

The plaintiff refers to and incorporates all preceding paragraphs in its claim for violation of CUTPA; (Compl. ¶ 131); and explicitly incorporated the actions supporting all previous claims, including those of fraudulent misrepresentation. (Compl. ¶ 132.) As already concluded, the alleged misrepresentations made by Mr. Maida cannot be imputed to the defendants. As also previously concluded, the alleged misrepresentations made by Crump and Crump LS to Mr. Maida, which are also incorporated into the plaintiff's CUTPA claim, are sufficient to allege a claim for fraudulent misrepresentation against Crump and Crump LS. Since fraudulent misrepresentation may form a sufficient basis for a CUTPA claim; see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 41; the court shall deny Crump's and Crump LS' motion to strike counts nine and ten.

The plaintiff, as already concluded, has failed to sufficiently allege that Crump and Crumps LS acted as agent for Sun Life, and, therefore, allegations against Crump and Crump LS that support a violation of CUTPA are not sufficient to allege the same violation against Sun Life. Also as previously concluded, the plaintiff has failed to sufficiently allege a fraudulent or negligent misrepresentation against Sun Life. As a result, the plaintiff has failed to sufficiently allege a CUTPA or CUIPA claim premised on misrepresentation. Therefore, the court shall grant Sun Life's motions to strike counts nine and ten.

The plaintiff's prayer for relief includes a request for punitive damages. The defendants argue that the plaintiff has failed to allege the degree of tortious conduct required to award punitive damages. The plaintiff contends that his allegations of violation of CUTPA are sufficient to warrant punitive damages. CUTPA provides that " [t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." General Statutes § 42-110g(a). " The standard for awarding punitive damages under CUTPA was set forth in Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987), where we explained, in order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 54, 634 A.2d 870 (1993).

As previously concluded, the plaintiff has alleged a viable CUTPA claim against Crump and Crump LS on the basis of alleged fraudulent misrepresentation. As such, whether the evidence offered thereunder is sufficient to support a claim for punitive damages under CUTPA is beyond the scope of a motion to strike. See Day v. Yale University School of Drama, Superior Court, judicial district of New Haven, Docket No. CV-97-0400876-S, (March 7, 2000, Licari, J.) (26 Conn.L.Rptr. 634, 642). Therefore, Crump's and Crump LS' motions to strike the plaintiff's request for punitive damages from his prayer for relief shall be denied. Since this memorandum has concluded that all claims against Sun Life should be stricken, there are no claims left which may support the plaintiff's request for punitive damages against Sun Life. Therefore, Sun Life's motion to strike the plaintiff's request for punitive damages shall be granted.

CONCLUSION

For the foregoing reasons, the court shall grant the motions of Sun Life to strike all counts and the request for punitive damages; the court shall grant the motion of Crump and Crump LS to strike counts one, two, four, six, and eight; and deny the motion of Crump and Crump LS to strike counts three, five, seven, nine, ten, and the request for punitive damages.