Opinion
UWYCV146025295
12-14-2015
Eric Marshall v. Allstate Fire & Casualty Ins. Co
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #111
Barbara Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed this action by way of writ, summons and complaint with a return date of November 11, 2014. The complaint is based upon a motor vehicle accident. The plaintiff alleges in his complaint that the driver, William Caco, acted negligently and carelessly when he failed to keep a reasonable and proper lookout for other vehicles on the road, followed too closely behind the vehicle operated by the plaintiff, operated his vehicle at an unreasonable rate of speed, failed to keep his car under control, failed to apply his brakes to avoid the collision, and failed to turn or swerve his vehicle to avoid collision. As a result of the driver's negligence and carelessness, the plaintiff sustained severe injuries.
The original complaint alleges that the defendant, Allstate Insurance Company has failed to pay compensation to the plaintiff, Eric Marshall, for injuries he received and for which he alleges are to be paid as underinsured benefits from the defendant.
The plaintiff alleges the following facts. On September 7, 2012, the plaintiff was operating a motor vehicle on Route 6 in Woodbury Connecticut when William Caco collided with his motor vehicle causing him to sustain injuries and losses. The plaintiff was able to collect for his injuries from Geico Insurance Company, the insurance carrier of William Caco. The plaintiff alleges that although Geico paid the limits of its liability policy for the claim of Eric Marshall, the policy from Geico was insufficient to compensate him for all of his injuries. However, the plaintiff alleges he is insured under a policy with Allstate Fire and Casualty Insurance Company through Kathleen and Charles Marshall. The policy was with the defendant, which provided underinsured motorist benefits. The plaintiff states that the driver's insurance policy limit has been exhausted and is inadequate to fully compensate the plaintiff. Accordingly, the plaintiff alleges that his injuries and losses are the legal responsibility of the defendant, pursuant to the terms of his contract with the defendant. The parties have been unable to agree on an amount of damages.
On May 14, 2015, the plaintiff filed an Amended Complaint in which he included five new counts as follows: Breach of Implied Covenant of Good Faith and Fair Dealing (Second Count); Breach of Implied Covenant of Good Faith and Fair Dealing/Reckless Misconduct (Third Count); CUTPA/CUIPA (Fourth Count); Breach of Connecticut Unfair Trade Practices Act/C.G.S. Section 42-110a et seq. (Fifth Count); and Intentional Infliction of Emotional Distress (Sixth Count). The defendant filed a Motion to Strike each of the added, amended counts with Memorandum of Law dated June 30, 2015. The plaintiff filed an objection with accompanying memorandum of law dated July 27, 2015.
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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " 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, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
" In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. " Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). " It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be improper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. CV 027 9267 (May 22, 1990, Schimelman, J.) (1 Conn. L. Rptr. 651).
SECOND COUNT
In the Second Count of the Amended Complaint, the plaintiff alleges that Allstate Fire and Casualty Insurance Company (hereinafter " Allstate") is liable for insurance coverage for personal injuries pursuant to the uninsured provision. The plaintiff contends that Allstate did not fairly consider his claims and settle the claims for a reasonable sum. In particular, he contends that the defendant is liable for a breach of the covenant of good faith and fair dealing because it failed to appropriately value and consider all of the plaintiff's medical records and bills and/or consider the opinions of his treating physicians and compensate him, given the permanency of his injuries and necessary future medical expenses, and is forcing an expensive trial to force plaintiff to forego trial and agree to a lesser settlement. The plaintiff alleges that refusing to consider the merits of the plaintiff's claims and thereafter agree to reasonably settle the claims is a breach of good faith and fair dealing.
" [E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 16, n.18, 938 A.2d 576 (2008). " 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." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563-64, 979 A.2d 1055, cert denied, 294 Conn. 913, 983 A.2d 274 (2009).
The concept of good faith and fair dealing is " [e]ssentially . . . a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended . . ." Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988). " Whether the party has acted in bad faith is a question of fact, subject to the clearly erroneous standard of review." Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837, 3 A.3d 992 (2010). An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements: " (1) that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; (2) that the defendant engaged in conduct that injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract; and (3) that when committing the acts by which it injured the plaintiff's right to receive under the contract, the defendant was acting in bad faith." Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 095028391 (October 19, 2009, Domnarski, J.) (2009 Ct. Sup. 17328). In examining the claim of good faith and fair dealing the court views each claim on a case by case basis as the plaintiff indicates in its memorandum. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988). In this action the defendant introduced a number of actions that it took in response to the particular claim. However, the focus of the court at this time is a motion to strike and is limited to the allegations in the complaint.
The second count sets forth the following allegations related to his claim that the defendant refused to fairly consider his claims and settle for a reasonable sum. In particular, he states that the defendant a) failed to appropriately value and consider all of plaintiff's medical records and bills; b) failed to give appropriate consideration to all of the opinions of his treating physicians; c) refused to pay the amount of coverage available despite testimony regarding significant limitations imposed on William Caco (sic?) as a result of the aforesaid injuries and despite the opinions of his treating physicians as to the permanency of his injuries and future medical expenses that will be necessitated thereby; and d) forced the plaintiff to incur the significant time and expense of trial based on a cynical calculation that since the company did not have a significant amount of exposure at trial it would force the plaintiff to go to trial in the hopes that he would decide to forego that imposition and agree to accept a lesser settlement than he is entitled. (Amended Complaint ¶ 6.) The plaintiff further alleges that the actions offend public policy and are immoral, unethical and unscrupulous.
The allegations in this count effectively claim that the defendant will not agree to a settlement figure which is contrary to the value of the action determined by the plaintiff. There are no allegations that the defendant has a history or practice of negotiating in bad faith in any case. There are no allegations that the reason the defendant will not settle for the plaintiff's demand is other than they deny liability and place a different value upon the file for settlement. A disagreement as to valuation is not a factual basis to support a claim of bad faith. However, without discovery at this stage it is not possible to determine if the disagreement is specifically value or liability or both.
The action at hand leaves open the basis of the claim and requires some specific factual documentation which can be acquired only through discovery to determine what is at the very heart of this civil action, that is, the settlement practices of the defendant. Whether there is a valid disagreement as to liability and/or damages in this scenario requires exploration that is more properly determined through discovery. In the memorandum by the defendant they argue that the facts of the accident are disputed as well as the damages claimed. These are issues that cannot be ascertained until discovery is conducted. Therefore the court will not strike the claim for implied bad faith in the Second Count.
THIRD COUNT
In the Third Count, the plaintiff alleges that the breach of the implied covenant of good faith and fair dealing was reckless misconduct. The plaintiff includes one paragraph in addition to the claims in the Second Count. He contends that the misconduct was " done with reckless and/or wanton and/or malicious indifference of the rights of Eric Marshall."
Recklessness requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct. Sheiman v. Lafayette Bank and Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). This claim follows the Second Count and thus the court has already determined that the Second Count should not be stricken and thus this count will not strike the Third Count.
FOURTH COUNT
The plaintiff alleges six ways in the Fourth Count that the defendant is liable for a violation of C.G.S. § 38a-816(6). Pursuant to General Statutes § 38a-816(6), unfair claim settlement practices constitute an unfair and deceptive practice in insurance. " [A] claim under CUIPA predicated upon alleged unfair claim settlement practices in violation of § 38a-816(6) requires proof that the unfair settlement practices were committed or performed with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., 229 Conn. 842, 847-48, 643 A.2d 1282 (1940). In Lees v. Middlesex Ins. Co., the court stated that " [i]n requiring proof that the insurer has engaged in unfair claim settlement practices with such frequency as to indicate a general business practice, the legislature has manifested a clear intent to exempt from coverage under CUIPA isolated instances of insurer misconduct." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., supra, 229 Conn. 849. The court stated that " the defendant's alleged improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a general business practice as required by § 38a-816(6)." (Internal quotation marks omitted). Id., 849. In Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), the Connecticut Supreme Court held that a motion to strike was properly granted, because a litigant did not prove more than one act of insurance misconduct in a CUIPA claim based on unfair settlement practices. The court concluded " we believe that claims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct." Mead v. Burns, supra, 199 Conn. 659.
In a recent Connecticut Superior Court case, the court, Adams, J., looked at the level of detail that is required in § 38a-816(6) claims against insurers for unfair claims settlement practices and stated: " A close examination of the plaintiff's allegations . . . reveals that there are no specific factual references to the defendant's action towards other insureds . . . As all of the factual allegations in [the count at issue] involve only the settlement negotiations between the plaintiff and the defendant and fail to reference other insureds, the plaintiff has not alleged a general business practice." Finocchio v. Atlantic Mutual Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5009607 (April 22, 2009, Adams, J.) (47 Conn. L. Rptr. 624) . In that case, the court held that allegations that the defendant " has . . . in the past engaged, and continues to engage in unfair and deceptive acts and/or practices" were insufficient for the purpose of § 38a-816(6). Id.
In the instant action the plaintiff refers in part to the defendant's failure to acknowledge and act with reasonable promptness upon communications with respect to claims under the underinsured policy provisions, failure to adopt and implement reasonable standards for the prompt investigation of claims (emphasis added), refusal to pay without reasonable investigation and effectuate fair and equitable settlements of claims in which liability has become reasonably clear as an indication of a general business practice in violation of the statute. This count as alleged indicates that the defendant acted as to claims (emphasis added) and not only to the claim which is now before this court. The defendant contends that a conclusory and broad based claim does not provide a sufficient factual basis to survive a motion to strike. There is a split of authority as to the pleadings which are required in support of this cause of action. The use of the plural in an attempt to allege a cause of action without providing specific factual bases of the acts of misconduct has been found insufficient to overcome a motion to strike. Lynch v. Covenant Insurance Company, Superior Court, judicial district of Hartford, Docket No. CV 09 502782 (August 11, 2009, Aurigemma, J.). However, a series of cases as cited by the plaintiff have acknowledged that the requirement of multiple acts in the claim of CUIPA is a substantial hurdle to a plaintiff who does not have access to the names of other individuals who have the same claim without the benefit of discovery. Seeds v. AIG Life Ins. Co., No. 375958 (Dec. 6, 1996); Cloutier v. Liberty Mutual Ins. Co., Superior Court, No. CV 90-278184-S (August 9, 1996, Thim, J.), Sambuco v. Aetna Casualty & Surety Co., Superior Court, No. CV 89-0100637-S (May 14, 1991, Karazin, J.) . Although, the factual allegations do not specifically name another insured, the use of the plural in describing claims and policies implies that there are other insureds who have been harmed by the actions of the defendant in violation of C.G.S. § 38a-816(6)(g). The allegations clearly indicate that the conduct is repetitive with insureds of the defendant. The plaintiff's allegations provide sufficient background to permit him to engage in further discovery or investigation which will provide the specific names or instances of past conduct that supports the cause of action. The court should not abruptly terminate the opportunity for the plaintiff to complete his discovery and continue with his claims. If the discovery produces a lack of supporting testimony or evidence, the defendant has an opportunity to challenge the claims based upon lack of evidence. Therefore, the court denies the motion to strike Count Four and thus to Count Five which is similar to the claims of this Count.
SIXTH COUNT
The plaintiff alleges in the Sixth Count that the defendant is liable for intentional infliction of emotional distress. In order to maintain a cause of action for Intentional Infliction of Emotional Distress " [i]t must be shown; (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). " Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). " Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." (Internal quotation marks omitted). Little v. Yale University, 92 Conn.App. 232, 239, 884 A.2d 427 (2005), cert denied, 276 Conn. 936, 891 A.2d 1 (2006). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Appleton, Id. at 210-11.
The allegations of the plaintiff in the Sixth Count are a repeat of the allegations as to Allstate and the CUIPA and CUTPA counts with a conclusion that he has suffered intentional emotional distress. The plaintiff has failed to allege specific conduct as to him that was so severe or outrageous that the result was an extreme emotional distress. There is no claim of a specific emotional impact or the necessity for treatment as a result of the claimed acts. This count is no more than a recitation of prior counts which is not supportive of a cause of action requiring that there is some pleading of a connection between the allegations and a severe emotional impact. The plaintiff does not allege the need for care or treatment to find specific support for the kind of intentional outrageous conduct that would constitute intentional infliction of emotional distress. The motion to strike Count Six is granted.
CONCLUSION
The motion to strike is denied as to Counts Two, Three, Four and Five. The motion to strike is granted as to Count Six.