Opinion
No. CV 09 5012395
August 16, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 129)
FACTS
On March 11, 2011, the plaintiffs, Lauren Jello-Pitkin and Michael Pitkin, filed their fifth amended complaint, alleging negligence (count one), breach of implied covenant of good faith and fair dealing (count three), violation of Connecticut Unfair Insurance Practices Act (CUIPA) (count five), violation of Connecticut Unfair Trade Practices Act (CUTPA) (count seven), an additional breach of implied covenant of good faith and fair dealing (count nine) and corresponding loss of consortium claims for each count (counts two, four, six, eight, ten). The complaint alleges that on May 9, 2007, the plaintiff Lauren Jello-Pitkin sustained injuries in an automobile accident in Norwich, Connecticut after being struck by an underinsured motorist. At the time of the accident, the plaintiff Jello-Pitkin had an insurance policy with the defendant that included underinsurance motorist coverage. According to the complaint, the defendant was duly notified of the accident and of the claims brought pursuant to the uninsured motorist coverage of the insurance policy but has refused to provide the benefits to which the plaintiff is allegedly legally entitled.
On June 14, 2011, the defendant filed a motion to strike counts three through ten of the plaintiff's amended complaint, as well as the corresponding prayers for relief. The motion is accompanied by a memorandum of law. On July 13, 2011, the plaintiff's filed an objection to the motion to strike and memorandum of law in support of their objection, as well as a request to amend and sixth amended complaint.
The filing of the sixth amended complaint complicates the court's consideration of this motion to strike. The defendant filed an objection to the request to amend on July 15, 2011. En order to remove any confusion the court sustains the objection to the July 15, 2011 request to amend at short calendar on July 18, 2011. The operative complaint for this motion is the plaintiffs' fifth amended complaint dated March 11, 2011.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., 580. However, "[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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "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 the present case, the defendant argues that counts three and four must be stricken on the ground that the allegations contain mere conclusory statements; counts five through eight must be stricken on the ground that CUTPA and CUIPA claims require more than a single act of insurance misconduct; and counts nine and ten must be stricken on the ground that they are duplicative of counts three and four. In response, the plaintiffs argue that each of the contested counts contain sufficient facts to withstand a motion to strike.
"Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 786, 900 A.2d 18 (2006). Thus, the analysis for each claim brought by Lauren Jello-Pitkin will be the same for the corresponding loss of consortium claims brought by her husband, Michael Pitkin.
Counts three and four. With respect to counts three and four, the plaintiffs allege that the defendant breached the implied covenant of good faith and fair dealing under the insurance policy by failing to make a reasonable offer at the pretrial conference that occurred in this case. "An implied covenant of good faith and fair dealing has been applied by [our Supreme Court] in a variety of contractual relationships, including . . . insurance contracts." (Internal quotation marks omitted.) Carford v. Empire Fire Marine Ins. Co., 94 Conn.App. 41, 45, 891 A.2d 55 (2006). "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." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 693, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011). "The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud . . . In order to make [such a claim] the plaintiff must allege that the defendant did more than simply deny the plaintiff's claim for benefits." (Internal quotation marks omitted.) Edwards v. Progressive Casualty Ins. Co., Superior Court, judicial district of New London, Docket No. CV 10 6006128 (June 24, 2011, Martin, J.).
"[T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute the element of bad faith . . . The first line of cases requires specific allegations establishing a dishonest purpose or malice. In alleging a breach of the covenant of good faith and fair dealing, courts have stressed that such a claim must be alleged in terms of wanton and malicious injury [and] evil motive . . . The second line of cases generally holds parties to a less stringent standard requiring that a plaintiff need only allege sufficient facts or allegations from which a reasonable inference of sinister motive can be made . . . Even where courts have used an inference analysis, however, they have looked to allegations that the conduct at issue was engaged in purposefully." (Internal quotation marks omitted.) Blayman v. Allstate Ins. Co., Superior Court, judicial district of New London, Docket No. CV 10 6005268 (January 6, 2011, Cosgrove, J.).
Here, count three alleges that the defendant stalled, delayed and refused to diligently process the plaintiff Jello-Pitkin's claim or to properly negotiate settlement of the claim, "all in order to profit from the Plaintiff's vulnerable position" and thus "acted with a sinister intent, an intent of wanton or malicious injury and/or evil motive, exhibiting a reckless indifference of the interests of others, in particularly the Plaintiff; such defiant behavior is unlikely to be attributable to an honest mistake or mere negligence." Further, the plaintiffs allege that the defendant "knowingly, willfully, and deliberately ignored the Plaintiff's demand for the payment of a reasonable settlement amount behaving in a way evidencing dishonest purpose, malice or evil motive." Coupling these allegations with those in the first count, which allege that the underinsured motorist was clearly negligent and at fault for the accident, and taking the allegations as true, for the purposes of a motion to strike, the plaintiffs have alleged sufficient facts to support a claim for bad faith. Therefore, the defendant's motion to strike count three is denied. For the same reasons, the motion to strike the plaintiff Michael Pitkin's loss of consortium claim in count four is also denied.
Counts five and six. With respect to counts five and six, "the vast majority of Superior Court decisions have specifically declined to recognize a private cause of action for a violation of CUIPA." Edwards v. Progressive Casualty Ins. Co., supra, Superior Court, Docket No. CV 10 6006128. "The consensus of these courts may be summarized as follows: 1) there is no express authority under CUIPA for private causes of action; 2) CUIPA is not ambiguous; 3) the regulatory scheme under CUIPA contemplates investigation and enforcement actions to be taken by the insurance commissioner; and 4) consequently there is no private cause of action under CUTPA." (Internal quotation marks omitted.) Smith v. Geico General Ins. Co., Superior Court, judicial district of New London, Docket No. CV 08 5006746 (April 7, 2009, Martin, J.). Without any appellate authority to the contrary, this court joins the majority view of the Superior Courts and will strike the plaintiffs' CUIIPA claim, the corresponding loss of consortium claim and the corresponding prayer for relief in paragraphs six, seven, eight and nine.
Counts seven and eight. With respect to counts seven and eight, "individuals may bring an action under CUTPA for violations of CUIPA. In order to sustain a CUIPA cause of action under CUTPA, a plaintiff must allege conduct that is proscribed by CUIPA." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 625, 910 A.2d 209 (2006). "[A] CUTPA claim based on the public policy embodied in CUIPA must be consistent with the regulatory principles established therein, and . . . the definition of unacceptable insurer conduct . . . 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.) Lees v. Middlesex Ins. Co., 229 Conn. 842, 850-51, 643 A.2d 1282 (1994). Furthermore, "for a plaintiff to allege CUIPA and CUTPA violations successfully the plaintiff must allege more than a singular failure to settle a plaintiff's claim fairly. The plaintiff must allege that the defendant has committed the alleged wrongful acts with such frequency as to indicate a general business practice." Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 672, 613 A.2d 838 (1992). See also Hart v. Carruthers, 77 Conn.App. 610, 618-19 n. 5, 823 A.2d 1284 (2003).
In the present case, the plaintiffs allege that the defendant's conduct offends public policy and constitutes immoral, oppressive and unscrupulous behavior that violates CUTPA. No further conduct besides the incorporation of its allegations in their bad faith claim is alleged. By simply alleging a singular failure to settle their claim fairly, the plaintiffs have not alleged sufficient facts to state a cause of action for a violation of CUTPA based on unfair claim settlement practice. Therefore, counts seven and eight will be stricken, as well as paragraphs two, three, four and five of the plaintiffs' prayer for relief.
Counts nine and ten. With respect to counts nine and ten, the plaintiffs have alleged a cause of action that is unnecessarily duplicative of count three. Count three alleges that "the defendant breached the implied covenant of good faith and fair dealing" by "failing to make a reasonable offer at the pretrial conference," making "virtually no offer to the Plaintiffs." The plaintiffs further allege that the defendant treated them "with great disrespect" and "stalled in processing the claim or properly negotiating settlement of the claim." Similarly, count nine incorporates all of the allegations of count three and further alleges that "the defendant fail[ed] to make a reasonable offer at the pretrial conference" and "instead made virtually no offer to the Plaintiffs." The plaintiffs allege that they "were treated with great disrespect at the pretrial conference" and the defendant "breached expressed or implied representations that it would investigate and process in good faith any claims submitted by the plaintiff."
Counts three and nine allege essentially the same misconduct attributable to the defendant. Courts have allowed defendants to delete duplicative pleadings through the use of a motion to strike. See, e.g., Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 03 0348578 (January 10, 2005, Downey, J.). Thus count nine and the corresponding loss of consortium claim in count ten are stricken.
While the court has allowed the primary personal injury action to be coupled with a good faith claim, that ruling does not require that these causes of action be tried at the same time. Practice Book § 10-21 governs the joinder of causes of action. It permits a court to order counts in a complaint to be tried separately. Section 10-21 provides in relevant part: "[I]n any case in which several causes of action are joined in the same complaint . . . if it appears to the judicial authority that they cannot all be conveniently heard together, it may order a separate trial of any such cause of action or may direct that any one or more of them be deleted from the complaint or answer."
The trial of an underinsured/uninsured motorist personal injury action presents different issues than those presented in the implied covenant of good faith claim or a CUTPA claim based upon an abuse of process or vexatious litigation claim. One of these causes of actions must be resolved favorably for the plaintiff before the second cause of action will be ripe for adjudication. This issue of prematurity was discussed by Judge Levin in Khanthavong v. Allstate Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 324502 (December 3, 1996, Levin, J.) ( 18 Conn. L. Rptr. 304, 307-08).
While "[t]he majority of Superior Court decisions hold that a plaintiff can assert a cause of action of bad faith or a violation of CUTPA or CUIPA before obtaining a judgment against the tortfeasor on the underlying claims of breach of contract and negligence"; Martinez v. Allstate Indemnity Co., Superior Court, judicial district of Fairfield, Docket No. CV 01 0381077 (September 19, 2011, Skolnick, J.); Judge Levin in Khanthavong recognized that first-party actions against insurers are increasingly accompanied by bad faith claims and CUTPA/CUIPA actions "to `up the ante' at pretrial and trial by increasing the insurer's exposure; to exponentially increase the scope of discovery, with the hope of obtaining the insurer's entire file, including its work-product investigation; and for the purposes of trial strategy. In such cases, the prejudice to the defendant is evident." Khanthavong v. Allstate Ins. Co., supra, 18 Conn. L. Rptr. 308.
In a somewhat analogous case, the court (Wiese, J.) held that "to the extent that the CUTPA action is predicated on vexatious litigation, the defendant cannot assert such a claim until and unless the underlying litigation has terminated in its favor." American International Specialty Lines Ins. Co. v. HMT Inspections, 2011 Conn.Sup. 9397.
As previously discussed, Practice Book § 10-21 permits a court to order that causes of actions in the same complaint be tried separately if they cannot all be conveniently heard together. Similarly, Practice Book § 15-1 provides in relevant part: "In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others.
CONCLUSION
In summary, the court hereby denies the defendant's motion to strike with respect to counts three and four and grants the motion with respect to counts five, six, seven, eight, nine and ten. The court also strikes paragraphs two through nine of the plaintiffs' prayer for relief.