Opinion
No. CV 03-0821767
March 31, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO REARGUE MOTION TO STRIKE
Defendant moves to reargue and for this court to reconsider its decision dated February 1, 2006, denying defendant's Motion to Strike plaintiff's Count III alleging violation of CUTPA. The basis for defendant's motion are that (1) defendant's acts of negligence cannot per se be the basis of violation of CUTPA; (2) when the Connecticut legislature intends a particular act or omission to be the basis of a CUTPA violation, it explicitly states that intention; (3) the court's decision creates an undelegated power to the DPUC to declare practices per se violations of CUTPA; (4) CUTPA violations based on negligence must allege that the negligence practices are unfair, unscrupulous or amoral. Each of these grounds lacks merit.
I.
When the defendant alleged in its original complaint that defendant's negligence alone formed the basis for the CUTPA clam, this court granted defendant's motion to strike. When the plaintiff amended its complaint to allege violation of Connecticut Agency Regulations 16-11— 1-2(a), this court denied defendant's motion to strike the CUTPA claim in its decision of February 1, 2006.
Clearly one of the elements of a CUTPA claim under the Cigarette Rule is violation of established public policy. Sources of public policy include "statutes, administrative decisions and case law." MedVal USA Health Programs, Inc. v. Member Works, Inc., 273 Conn. 634, 657 (2005). "Statutes have not been the exclusive source from which we have found clear statements of public policy. We also have looked to city charters and, on one occasion, to the Rules of Professional Conduct." Id. Courts have specifically held that violation of administrative regulations establish the first prong of the Cigarette Rule. In Tillquist v. Ford Motor Credit Co., 714 Fed.Sup. 607 (Conn.), the court stated "Plaintiff has proven that the defendant has violated several of the banking regulations; therefore, the court concludes that defendant's actions amount to a breach of public policy and in turn violate the CUTPA [sic]" at 616. Likewise in Sullivan v. Hocon Gas, Inc., CV96-331786S, Judicial District of Hartford-New Britain at Hartford (July 21, 1997, Hartmere, J.) the court held, "In the present action, the plaintiffs' allegations concerning the defendants' violation of regulatory provisions regarding the safe handling of propane constitute an unfair act or practice under CUTPA . . . When the amended complaint is read in the light most favorable to the plaintiffs, these losses are related to the defendants' alleged violation of state regulatory provisions and the public policies embodied therein, which forms a cause of action under CUTPA." (p. 4.)
Again it must be emphasized that the basis of this court's decision is not the allegations that the defendant was negligent but that defendant's acts violated a state public policy expressed in the pertinent regulation. While Citerella v. United Aluminum Co., 158 Conn. 600 (1969) construed the regulation here in question as imposing an obligation of reasonable care on the defendant, and as a result the regulation and allegations of negligence are congruent, that does not detract from the fact that the violation of an administrative regulation (as an expression of public policy) satisfies the first prong of the Cigarette Rule.
II.
Defendant cites a number of statutes which explicitly state that their violation constitutes a violation of CUTPA. If defendant is claiming that a violation of only those statutes are necessary to establish a violation of CUTPA, defendant is just plain wrong. Cases too numerous to name here hold that the violation of many more statutes, that do not contain explicit reference to CUTPA, offend public policy and are the basis for establishing a violation of the first prong of the Cigarette Rule.
III.
Defendant claims that the DPUC exceeded its delegated powers by adopting a regulation that creates a per se violation of CUTPA. The DPUC did no such thing. It adopted a regulation imposing on public utility companies the duty to exercise every effort to properly warn and protect the public from danger and [to] exercise all possible care to reduce the hazard to which employees, customers and others may be subjected by a reason of its equipment and facilities." Connecticut Agency Regulations, Sec. 16-11-102(a). Clearly the DPUC had the power to adopt such a regulation and it was within its delegated responsibilities. The fact a violation of that regulation formed the basis of a CUTPA claim is not an exercise of undelegated powers by the DPUC, but the result of the construct of this Court consistent with established precedent.
IV.
Finally defendant argues that plaintiff's allegations of negligence, without alleging that they are immoral, unethical, oppressive or unscrupulous, are insufficient to support a CUTPA violation claim. Defendant persists in ignoring plaintiff's allegation that defendant violated an administrative regulation which expressed a clear public policy. As stated in this court's decision of February 1, 2006, the criteria of the Cigarette Rule are disjunctive. Violation of established public policy is one prong; acts that are immoral, unethical, oppressive or unscrupulous are another prong . . . Defendant conflates them. Public policy violation need not be immoral and acts that are immoral need not be violations of public policy. "A practice may be unfair because of the degree to which it meets one criteria or because to a lesser extent it meets all three." Cheshire Mortgage Services, Inc. v. Montes, 223 Conn. 80, 106 (1992).
The court has reconsidered its decision of February 1, 2006 denying defendant's Motion to Strike plaintiff's third count sounding in violation of CUTPA, and, on reconsideration, reaffirms that decision and re-denies defendant's Motion to Strike.