Opinion
No. CV 064017770S
April 17, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion #118.00)
On September 1, 2006, the plaintiff law firm, Maya Associates, P.C., filed this action for declaratory and injunctive relief against Merrie Hawley, an attorney and former employee of the firm, and Westport Ins. Corp. (Westport), with which the plaintiff maintained a policy for malpractice insurance. The plaintiff seeks to enjoin Westport from defending Hawley in an underlying action for malpractice, Fedor v. Hawley, Docket No. CV 06 5003192, and for a declaration that Westport had no duty to defend Hawley in that case.
On February 5, 2007, Westport filed a motion to strike (no. 118). On February 22, 2007, the plaintiff filed a memorandum in opposition. Oral argument was heard on April 2, 2007, at which time the issues were narrowed to whether the plaintiff's prayer for relief to recover attorneys fees and costs should be stricken on the ground that it has not alleged claims that legally give rise to attorneys fees or, alternatively, that pro se parties are not entitled to recover attorneys fees. Westport argues that in order to collect for attorneys fees and litigation costs, a plaintiff must assert a contractual or statutory exception to the general rule that parties pay its own expenses, and that the present plaintiff has failed to claim any such exception. Alternatively, Westport contends that, in Connecticut, pro se litigants are not allowed to collect attorneys fees under any circumstances. The plaintiff counters that attorneys fees and costs may be awarded for a declaratory judgment action regarding an insurance company's breach of contract. In a reply memorandum filed March 12, 2007, Westport responds by arguing that this situation only arises where the insurance company has breached its duty to defend, not where, as the present plaintiff maintains, the insurance company erroneously defends in the underlying action.
Westport also had a pending motion to dismiss which was marked off until April 30, 2007. Hawley had filed a motion to dismiss on February 5, 2007, which was granted by the court, Gilardi, J., on the same day. The plaintiff filed a request to amend and amended complaint on March 29, 2007, removing its claim for injunctive relief and adding counts for breach of contract and breach of the duty of good faith and fair dealing against Westport, neither of which are presently at issue.
"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). "Ordinarily, a successful litigant is not entitled to an award of attorneys fees . . . This rule is known as the `American rule.' . . . Connecticut adheres to the American rule . . . [but] recognizes . . . the exceptions to this rule. A successful litigant is entitled to an award of attorneys fees if they are provided by contract . . . by statute . . . or as an aspect of punitive damages." (Citations omitted; internal quotation marks omitted.) Jones v. Ippoliti, 52 Conn.App. 199, 209, 727 A.2d 713 (1999). In Jones, the plaintiffs, a group of individual partners in a private law firm, sought attorneys fees for the work they and other employees of their own law firm performed to assist outside trial counsel in the action. While finding that the law firm had not entered an appearance and, therefore, had not "represented" the plaintiff attorneys, the court also commented that "even if we were to conclude otherwise, i.e., that [the law firm] represented the plaintiffs, such representation would have been of a pro se nature. The law of this state is that pro se litigants are not entitled to attorneys fees." Id., 212.
In the present case, the plaintiff has cited no statutes or contract provisions that allow for recovery of attorneys fees in an action against their insurance company, and have not made any claims that would allow for punitive damages. Furthermore, the plaintiff has proceeded expressly on a pro se basis, with all submissions to the court signed by Karen A. Anderson, an attorney with the plaintiff firm. Therefore, it is not entitled to attorneys fees, and the prayer for relief for recovery of attorneys fees is hereby stricken.
As Westport points out, the only authority cited by the plaintiff, General Plasma, Inc. v. Reliance Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 97 05758995 (January 11, 2000, Peck, J.) [ 26 Conn. L. Rptr. 189], holds only that an insured is entitled to attorneys fees for an action it brings against its insurer to declare that there is a duty to defend pursuant to the underlying policy. The court in General Plasma adopted the reasoning that, if an insured is forced to pay its own expenses in a declaratory judgment action instituted by the insurer, the insured would be in the same position as if it had to pay the costs of its defense in the underlying action, an outcome that the duty to defend was designed to prevent. The present plaintiff is essentially arguing that the insurance company has a duty to not defend if there is clearly no coverage under the policy, and that the insured is entitled to attorneys fees in an action to enforce this. This contention, however, does not have any support in the policy language or Connecticut law.