Opinion
No. CV 03-041 07 12 S
November 8, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (MOTION 124 DATED JUNE 16, 2004)
The plaintiff is a corporation that provides traffic control services for construction and utility maintenance sites. In May 2004 it filed an eight-count amended complaint, again amended in July 2004, wherein it alleged that the defendant towns and law enforcement personnel engaged in tortious contract interference and unfair trade practices. In particular, the plaintiff has alleged that the defendant Town of Trumbull violated the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a (CUTPA) insofar as the town
(a) "has a policy(ies), regulation(s), ordinance(s) or custom requiring that police officers have either the exclusive right or the right of first refusal to provide traffic control services . . ." (Count Eight, paragraph 5)
(b) "[has] instituted regulations and policies preventing the use of private flagging companies to control traffic." (Count Eight, paragraph 12)
(c) ". . . has engaged in multiple acts that violate CUTPA including: (1) the passage of such legislation requiring the right of first refusal or the exclusive right to traffic control and (2) the enforcement of such legislation . . ." (Count Eight, paragraph 17).
The plaintiff has further alleged that the defendant James Berry, Chief of Police for the Town of Trumbull, has engaged in tortious interference with the plaintiff's rights insofar as the defendant James Berry
(a) "had a policy(ies), regulation(s), ordinance(s) or custom requiring that police officers have either the exclusive right or the right of first refusal to provide traffic control services . . ." (Count Five, paragraph 4)
(b) "intimidated the plaintiff's employees, thereby interfering with its business relations and ability to perform its contractual obligation for services to the construction and/or utility maintenance contractor(s)." (Count Five, paragraph 11).
The Town of Trumbull and its Chief of Police have filed a Motion to Strike these counts.
I. Standard of Review
"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. In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "What is necessarily implied [in an allegation] need not be expressly alleged. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
"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." (Citations omitted; internal quotation marks omitted. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 593 A.2d 293 (1997).
II. Legal Analysis (A) The Plaintiff has Failed to Allege a CUTPA Violation.
Connecticut General Statutes § 42-110a defines "trade" and "commerce" as the "advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." Nothing in the plaintiff's allegations specifies activities that constitute trade or commerce.
The Town of Trumbull had the authority to take the necessary actions to carry out its municipal duties. Lawson v. Whitey's Frame Shop, 241 Conn. 678, 684-85, 697 A.2d 1137 (1997); New Haven Commission on Equal Opportunities ex rel. Washington v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981). Although this authority does not necessarily exempt the defendant town from CUTPA regulations, the mere exercise of that authority does not constitute "trade" or "commerce," a necessary component of an alleged CUTPA violation.
Furthermore, the type of municipal activity criticized in the present case, traffic regulation, is the type of regulated municipal activity that is not within the purview of CUTPA prohibitions. Traffic regulation is an integral part of the municipality's powers. Connecticut General Statutes § 7-148(C). In Connelly v. Housing Authority, 213 Conn. 354, 567 A.2d 1212 (1990) and again in Danbury v. Dana Investment Corporation, 249 Conn. 1, 20, 730 A.2d 1128 (1999), the Connecticut Supreme Court suggested that CUTPA complaints were inappropriate in situations involving regulated governmental functions. See also Chernet v. Wilton, Docket No. CV90 0108840, Superior Court, Judicial District of Stamford/Norwalk at Stamford, (September 28, 1990, Cioffi, J.) ( 2 Conn. L. Rptr. 475); Guilford v. D.P.L. Refuse Service, Docket No. CV95 0250575S, Superior Court, Judicial District of New Haven at Meriden, (May 8, 1996, Silbert, J.) ( 17 Conn. L. Rptr. 9).
The Town of Trumbull's Motion to Strike Count Eight of the Complaint is granted.
B. Tortious Interference with Contract Rights.
The defendant Police Chief James Berry has also filed a Motion to Strike Count Five of the plaintiff's complaint wherein the plaintiff has alleged tortious interference with the plaintiff's traffic control services.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship. (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." Collum v. Chapin, 40 Conn.App. 449, 452, 671 A.2d 1329 (1996). The plaintiff must plead and prove some improper motive or improper means. Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999). Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983).
"[T]o raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful or malicious conduct of the defendants . . . Moreover, we cannot look beyond the complaint for facts not alleged." (Citations omitted; internal quotation marks omitted.) Ippoliti v. Town of Ridgefield, Docket No. CV99-0337600S, Superior Court, Judicial District of Danbury (August 7, 2000, Moraghan, J.) ( 27 Conn. L. Rptr. 629).
In the present case, the plaintiff has alleged that the defendant Chief Berry, through his agents, "intimidated the Plaintiff's employees . . ."
Not every act that disturbs a contract or business expectancy is actionable. "For a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . ." (Citations omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. at 805.
In the present case the court is limited to the pleadings in the present case, which must be construed in a manner most favorable to the plaintiff. The plaintiff has alleged improper means, intimidation, by the defendant Berry. The plaintiff did not merely recite the elements of tortious interference but also alleged the nature of its business relationship. It further alleges exactly how the plaintiff believes the defendant interfered and the outcome of that interference.
The defendant has sufficient notice of the plaintiff's allegations and the facts that the plaintiff's intend to prove to sustain those allegations. The motion to strike count five is therefore denied.
DEWEY, J.