Opinion
X10UWYCV136021750
03-31-2016
Kleen Energy Systems, LLC v. Ace American Insurance Co. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #238
Kari A. Dooley, Judge.
Preliminary Statement
This action arises out of the explosion on February 7, 2010 at the Kleen Energy plant which was then under construction, in Middletown, Connecticut. The defendants, all insurance companies, had collectively issued a builder's all risk policy in connection with the construction of the energy plant. The plaintiff, Kleen Energy Systems, LLC (Kleen), brought this action against the Insurer defendants alleging a failure by them to pay " Delay in Opening" (DIO) losses occasioned by the rebuild of the plant. While the parties agree that the policy at issue provided coverage for DIO losses, they dispute the amount of, and mechanism for, calculating such losses. By amended complaint dated July 1, 2015, Kleen added a CUTPA count to the operative complaint in which Kleen asserts that the Insurer defendants violated CUIPA in a variety of ways in both the handling of its and others' claims and as such, violated CUTPA. The Insurer defendants moved to strike the CUTPA count on the grounds that it is barred by the applicable statute of limitations. Kleen opposes the motion. The parties agreed that the matter could be decided " on the papers." Briefing was completed on January 15, 2016.
Standard of Review
It is well-settled that the role of the trial court in ruling on a motion to strike is to test the legal sufficiency of the pleading challenged. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The court must " 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (citation omitted; internal quotation marks omitted) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). 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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " 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). The court cannot go outside the allegations in the complaint when deciding a motion to strike. See, Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).
Discussion
As indicated, the defendant insurers move to strike the CUTPA count of the plaintiff's amended complaint dated July 1, 2015 on the grounds that the CUTPA count is barred by the statutory limitations period of three years. " [Ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be plead as a special defense, and not raised by a motion to strike." (Internal citation omitted. Internal quotations omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). There are two exceptions to this rule however. Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The first is where the parties agree that the complaint includes all of the pertinent facts necessary to a determination regarding the applicability of the statute. Id. The defendant insurers rely on the second exception which applies in circumstances " 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[.] [T]he 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." Id. at 239-40, citing, DeMartino v. Siemon, 90 Conn. 527, 528-29 (1916). DeMartino involved a statutory wrongful death action at a time when the statute of limitations was one year. The complaint alleged that the defendant's negligence caused the decedent's death more than one year before the commencement of the action. As such, the Court held, the " demurrer was properly sustained." DeMartino v. Siemon, supra, 90 Conn. 527. See also, Greco v. United Technologies, Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006) (Supreme Court approved procedural use of a motion to strike, on statute of limitations grounds, a wrongful death claim.) As was the case in DeMartino, the situation in Greco did not include any disputed facts as to the pertinent dates at issue. At issue was which statute of limitations applied, the wrongful death statute or the statue governing injury due to exposure to hazardous materials. Nor did the Greco case involve any claims by the plaintiff that the statute of limitations, whichever one might apply, could be avoided. Although not specifically decided by our appellate courts, several superior courts have construed CUTPA claims as falling within the exception arising from the DeMartino decision, as identified in Forbes v. Ballaro, supra. See e.g., Sidi v. Diaz, 2010 WL 3038498 (June 7, 2010, Zoarski, J.T.R.) and cases cited therein.
Forbes did not rely upon or apply this exception, but merely stated its existence, in reliance upon De Martino .
However, even if CUTPA presents as an exception to the general rule, which is not decided herein, a determination that this CUTPA count is time barred cannot be made based solely on the allegations in the complaint. Application of this exception, if it is to be had at all, necessarily presupposes that the allegations in the complaint are sufficient to make a dispositive determination as to whether the action is time barred. That was certainly the case in the DeMartino and Greco matters. It is certainly not the case here. For example, in this case, the plaintiff avers that the statute of limitations was tolled both by agreement, as well as under the continuing course of conduct doctrine. In this court's view, where the applicability of the statute of limitations cannot be determined by the allegations of the complaint alone and any such determination requires evidence outside the pleadings, the motion to strike becomes procedurally inappropriate.
In addition to the tolling question, the court notes that some of the allegations are undated, and still others appear to be ongoing in nature. For example, on the face of the complaint, the date on which the Insurers capitulated and paid O& G's labor costs is unknown. See, Bridgeways Communications Corp. v. Time Warner, Inc., 1998 WL 638444 (Conn.Super.) (September 4, 1998, Flynn, J.) (Motion to strike denied because the claim failed to include the date of the purported CUTPA violation and the court could therefore not determine when the applicable limitation period commenced). Similarly, one of the allegations is that the defendant insurers violated CUIPA by " forcing Kleen to commence and prosecute this action" events which occurred in and around May 2013. If the trier of fact finds these events occurred; occurred within three years of July 1, 2015 and violated CUTPA, the action is timely, at least as to that specific conduct.
This conclusion finds support in Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 894 A.2d 335 (2006). There, our Appellate Court had occasion to determine whether the CUTPA statute of limitations barred the plaintiff's recovery. The plaintiff argued that the trial court had incorrectly determined on summary judgment that the statute of limitations was not tolled by the continuing course of conduct doctrine. Relying upon Practice Book Section 10-57, the court first noted that it need not reach the merits of the claim insofar as the plaintiff " did not raise it in her pleadings by way of a reply to the [statute of limitations] special defenses." Id. at 607. This determination is wholly consistent with the body of case law which requires the statute of limitations to be specially pled so that matters in avoidance of same, can be asserted by a plaintiff. See, e.g. Forbes v. Ballaro, supra, at 239.
Practice Book Section 10-57 provides in pertinent part: " Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially plead in the reply."
The court continued to hold, in the alternative, that the trial court properly granted summary judgment on the CUTPA claim. The court did not address the question of whether the statute might have been raised by way of motion to strike. ---------
Further, " [i]t has been and is the holding of this court that matters in avoidance of the Statute of Limitations need not be plead in the complaint but only in response to such a defense properly raised. Todd v. Bradley, 99 Conn. 307, 122 A. 68." Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972). See also, Practice Book Section 10-57; McKeever v. Fiore, 78 Conn.App. 783, 795-96, 829 A.2d 846 (2003); Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 690, 974 A.2d 764 (2009). Therefore, the plaintiff should be afforded the opportunity to plead in avoidance of the statute of limitations defense. See, Forbes v. Ballaro, 31 Conn.App. 235, 241, 624 A.2d 389 (1993). Indeed, this appears to be the procedure most often followed in this state when, in CUTPA claims, the statute of limitations and matters in avoidance thereof are raised. See, Flannery v. Singer Asset Finance Company, LLC, 312 Conn. 286, 322, 94 A.3d 553 (2014) (Summary judgment was proper where undisputed facts of the case established that the statute of limitations for plaintiff's breach of fiduciary duty and CUTPA claims was not tolled by the continuing course of conduct doctrine); Fichera v. Mine Hill Corporation, 207 Conn. 204, 216, 541 A.2d 472 (1988) (Judgment after trial that CUTPA claim was not barred by statute of limitations was held error where plaintiff failed to establish continuing course of conduct which would bring the claim within the applicable statute of limitations); McClancy v. Rotunno Constr., Inc., 2014 WL 6805318 (Conn.Super.) (Oct. 28, 2014, Tobin, J.) (genuine issue of material fact as to whether continuous course of conduct doctrine tolled three-year limitations period applicable to CUTPA action precluded summary judgment); Gianetti v. Norwalk Hosp., No. CV980354312S, 2002 WL 853596 (Conn.Super.Ct. Apr. 9, 2002) (Summary judgment granted where continuing course of conduct doctrine did not toll statute of limitations for physician's CUTPA claim against hospital). Indeed, in both Flannery and Fichera, the defendants had asserted the statute of limitations by way of special defense, to which the plaintiffs had pled in avoidance.
In sum, whether the CUTPA claim is time barred requires evidence. Thus, while perhaps the statute of limitations may be raised by way of motion to strike, in this case, it cannot be resolved by way of motion to strike. Factual issues requiring evidence outside the pleadings as to its applicability abound. See, Lawrence & Memorial Hospital, Inc., v. Health Net, Inc., 2010 WL 5158334 (Conn. Super.) (November 24, 2010, Berger, J.) (Motion to Strike CUTPA count on as barred by statute of limitations denied where evidence was needed to determine the applicability of the continuing course of conduct doctrine to toll same).
The defendant insurers' assertion of the statute of limitations can be preserved by way of a special defense. Plaintiff can plead in avoidance and the issues can be resolved by the jury.
The motion to strike is denied.
See, Willow Springs Condominium Assoc., Inc. v. Seventh BRT Development Corp, 245 Conn. 1, 46, 717 A.2d 77 (1998).