Opinion
No. FST CV 06-5002425 S
June 30, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
Procedural History
On September 27, 2006, the plaintiff, Melentina Pusztay, commenced this action by service of process on the defendant, Allstate Insurance Company. In her complaint, the plaintiff alleges the following facts. On September 28, 2002, the plaintiff was injured in an automobile collision. The plaintiff filed a lawsuit against the driver and subsequently settled for $20,000, which represented the maximum payout under the at fault driver's insurance policy. During this time period, the plaintiff held an automobile insurance policy with the defendant.
As the plaintiff's medical expenses exceeded the amount that she recovered under the at fault driver's insurance coverage, the plaintiff made a claim for underinsured motorist benefits by letter dated June 17, 2004. The defendant acknowledged receipt of the plaintiff's correspondence by a confirmation letter dated June 24, 2004. The plaintiff alleges that the wording of the confirmation misled her into believing that the defendant would inform her of substantive requirements and deadlines with which she must comply to perfect her underinsured claim.
By letter dated July 26, 2004, the defendant indicated that the plaintiff needed to submit updated medical reports, bills, reimbursements and wage loss information from her employer and that, as soon as this information was provided, a claims representative would begin to evaluate the plaintiff's underinsured motorist claim. The plaintiff's counsel provided all such documentation. On November 5, 2004, the plaintiff's attorney sent a letter to the defendant confirming that all requested documents had been submitted and inquired as to when the defendant anticipated tendering a settlement offer. A subsequent telephone conversation ensued during which the defendant represented that a settlement offer would be forthcoming within ten days. No such offer was made. The plaintiff eventually received a call from a representative of the defendant inquiring if arbitration or legal proceedings had been commenced. On November 3, 2005, the plaintiff's counsel sent the defendant a formal demand for arbitration, or in the alternative, notice that it would commence legal proceedings if the defendant did not want to arbitrate the claim. The defendant responded by indicating that it would no longer offer any settlement because more than three years had passed since the date of the subject accident, and the plaintiff's underinsured motorist claim was barred by the policy's internal contractual limitations period.
As a result of this alleged conduct, the plaintiff's eight-count complaint alleges claims for (1) breach of the implied covenant of good faith and fair dealing; (2) equitable estoppel; (3) fraudulent misrepresentation; (4) negligent misrepresentation; (5) innocent misrepresentation; (6) unjust enrichment; (7) violations of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq.; and (8) violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant has filed a motion to strike all eight counts of the complaint.
Legal 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). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f 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). Nevertheless, "[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, 262 Conn. 480, 498, 815 A2d 1188 (2003). When deciding a motion to strike, the court must "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).
First Count: Covenant of Good Faith and Fair Dealing
The defendant moves to strike count one asserting that it does not allege sufficient facts to state a claim for breach of the covenant of good faith and fair dealing. In its memorandum of law, the defendant argues that the plaintiff has failed to allege any facts that could establish the bad faith element of this tort. The plaintiff responds by arguing that the defendant's conduct, as pled, rises to the level of bad faith in that the complaint alleges a continuing strategy of delay and obfuscation by the defendant which misled the plaintiff.
"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every 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 . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term. 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." (Emphasis in original; internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "Bad faith has been defined in our jurisprudence in various ways. 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 . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 42-43, 925 A.2d 334 (2007).
Paragraph thirty-five of the complaint sets forth a litany of detailed allegations as to how the plaintiff contends that the defendant violated the implied covenant of good faith and fair dealing. The plaintiff alleges that the defendant implied that it would inform her of all substantive requirements and deadlines but failed to notify her of the contractual limitations period, failed to substantively and timely address the plaintiff's claim, encouraged the plaintiff to rely on its cooperation, failed to negotiate the plaintiff's claim in good faith, refused to make an offer of settlement despite its written and verbal commitment to do so, failed to pay on the claim without any substantive reasoning; and failed to comply with the duty of good faith and fair dealing in attempting to resolve any issues relating to the plaintiff's claim.
Construed in a light most favorable to the nonmoving party, the plaintiff has alleged sufficient facts to set forth a claim for breach of the implied covenant of good faith and fair dealing. The complaint alleges that the defendant engaged in a pattern of conduct with the design of delaying settlement of this claim, including making verbal and written representations, over a sixteen-month period, with repeated instances of alleged malfeasances. The plaintiff need not prove these allegations to survive a motion to strike. The motion to strike count one is denied.
Second Count: Equitable Estoppel
In its memorandum of law, the defendant argues that count two for equitable estoppel should be stricken as the plaintiff fails to allege that Allstate did or said anything which was expressly intended to deceive or misrepresent any information to the plaintiff. The plaintiff responds by arguing that she has alleged all of the elements of a claim for equitable estoppel, in that the defendant made affirmative misrepresentations and that the plaintiff reasonably relied on them.
"There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 A.2d 540 (2007). "Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). "[I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotation marks omitted.) Prudential Property Casualty Ins. Co. v. Anderson, 101 Conn.App. 438, 447, 922 A.2d 236, cert. denied, 283 Conn. 911, 928 A.2d 537 (2007).
The defendant's argument mischaracterizes the scope of the plaintiff's allegations. According to the defendant, this count should be stricken because the plaintiff does not allege that it made any affirmative representations regarding the length of the contractual limitations period. Despite the validity of this contention, the plaintiff alleges that the defendant made other affirmative misstatements. The complaint asserts that the defendant represented its intention to settle the plaintiff's underinsured motorist claim and that the defendant's actions were intended to induce the plaintiff into the belief that it would negotiate the claim in good faith, and that the plaintiff acted in reliance on such belief. Viewed in a light most favorable to the pleader, these allegations are sufficient to state a claim for estoppel. As the plaintiff has sufficiently pled facts alleging a claim of estoppel, the motion to strike count two is denied.
Third Count: Fraudulent Misrepresentation
The defendant additionally asserts that count three sounding in fraudulent misrepresentation must be stricken as the plaintiff has failed to allege that the defendant falsely misrepresented material information regarding the limitations period of the contract. The plaintiff argues that her allegations regarding the defendant's inference that the claim would be processed and a settlement offer would be forthcoming were sufficient to support a claim for fraudulent misrepresentation.
"[I]t is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist." (Internal quotation marks omitted.) H L Chevrolet v. Berkeley Ins. Co., 110 Conn.App. 428, 440, 955 A.2d 565 (2008).
While it is true that the complaint does not allege that the defendant affirmatively misrepresented the length of the contractual limitations period, or otherwise told the plaintiff that she did not have to sue before that period lapsed, there are other misrepresentations alleged in count three. For example, the plaintiff alleges that "Allstate stated it would pay out on Ms. Pusztay's claim so long as she complied with the Five Requirements set forth in the Confirmation Letter" and "Allstate repeatedly represented that it would substantively and timely address Ms. Pusztay's Underinsured claim." The complaint further alleges that "[s]uch representations were false and were known to be false" that "[s]uch representations were made by Allstate to induce Ms. Pusztay to reply thereon" and "Ms. Pusztay acted on such false representations to her detriment." Consequently, the plaintiff has adequately alleged that there were false statements of fact made by the defendant, that the defendant knew them to be false, that the defendant intended reliance on the false statements and that the plaintiff relied on the representations to her detriment. As the plaintiff has sufficiently alleged a claim for fraudulent misrepresentation, the defendant's motion to strike count three is denied.
Fourth and Fifth Counts: Negligent and Innocent Misrepresentation
The defendant moves to strike counts four and five on the ground that there is no fiduciary duty between an insurer and its insured, and, therefore, the plaintiff cannot maintain a cause of action based in negligence. Alternatively, the defendant argues that the negligence claims are legally insufficient because the plaintiff does not allege that the defendant misrepresented the length of the contractual limitations period. In response, the plaintiff argues that she has alleged all of the elements of negligent and innocent misrepresentation.
As discussed, supra, the court rejects the defendant's argument that these counts are legally insufficient because the defendant did not affirmatively misrepresent the length of the contractual limitations period. There are other misrepresentations alleged in the complaint, and these are sufficient at the motion to strike stage.
"[A]n action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). Our Supreme Court has also "held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 681, 940 A.2d 800 (2008). In any negligence action, "[t]he existence of a duty of care is an essential element . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act . . . The existence of a legal duty is a question of law . . ." (Citation omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008).
The defendant relies on our Supreme Court's decision in Harlach v. Metropolitan Property and Liability Ins. Co., 221 Conn. 185, 602 A.2d 185 (1992), for the proposition that an insurer does not owe a duty to its insured in the context of automobile insurance. In Harlach, the Supreme Court held that the relationship between the insured and the insurer is contractual in nature and therefore creates no immediate fiduciary obligations to voluntarily explain the terms, advantages and disadvantages of the coverage.
While Harlach does indicate that there is no fiduciary relationship between an insurer and its insured under Connecticut law, it does not stand for the premise that there is no duty of care between these parties. There is a clear distinction between an ordinary duty of care and a fiduciary duty. "[N]egligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 57, 717 A.2d 724 (1998). The defendant erroneously contends that proof of a fiduciary relationship is required to survive a motion to strike. "It is axiomatic that in an ordinary negligence claim it is not necessary to allege a fiduciary duty where no such duty exists . . . the critical issue is not whether [the defendant] owed the plaintiff a fiduciary duty, but rather whether they owed the plaintiff an ordinary duty of care . . ." Miller v. Ryan, Superior Court, judicial district of Hartford, Docket No. CV 02 0821438 (October 7, 2003, Booth, J.) (35 Conn. L. Rptr. 617, 619); See Stones Trait, LLC v. Ridgefield Bank, Superior Court, judicial district of Stamford, Docket No. CV 05-4003286 (November 29, 2006, Lewis, J.) (a plaintiff's ordinary negligence claim is not dependent upon a finding of a fiduciary relationship between the parties). Indeed, our Supreme Court has expressly held that a plaintiff can be successful on a negligent misrepresentation claim against an insurance company. See Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 645-46, 804 A.2d 180 (2002).
Consequently, it is not necessary for the plaintiff to allege a fiduciary duty between the parties, only an ordinary duty of care, to support a claim of negligence and misrepresentation. Providing that the complaint alleges all of the elements of negligent and innocent misrepresentation, the counts are legally sufficient. Through the incorporation of previous counts as well as the language found in counts four and five, the plaintiff alleges both that the defendant made misrepresentations as to material facts that it knew or should have known were false and that the defendant suffered pecuniary loss as a result of her reliance on these statements. Accordingly, when read in a light most favorable to the pleader, the plaintiff has alleged sufficient facts to state claims for negligent and innocent misrepresentation. The defendant's motion to strike counts four and five is denied.
Sixth Count: Unjust Enrichment
In moving to strike count six for unjust enrichment, the defendant argues that the plaintiff fails to allege a claim for unjust enrichment as she inappropriately pleads entitlement to contract benefits rather than the benefit to the defendant, namely the premium received by Allstate for the underinsured motorist coverage for the applicable policy period. The plaintiff responds by arguing that she alleges sufficient facts to state a claim for unjust enrichment, including benefit to the defendant.
"It has long been established under Connecticut law that [p]laintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 126, 958 A.2d 195 (2008). "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another." (Internal quotation marks omitted.) Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
Count six sets forth the following allegations: "Allstate benefited from Ms. Pusztay's payments to the [p]olicy . . . Allstate unjustly failed to compensate Ms. Pusztay for the benefits to which she was entitled, namely, payout on her [u]nderinsured [c]laim . . . Allstate's failure to pay on her [u]nderinsured [c]laim was to Ms. Pusztay's detriment [and] . . . Allstate would be unjustly enriched if it were permitted to avoid paying out Ms. Pusztay's [u]nderinsured [c]laim, having received the benefit of Ms. Pusztay's payments pursuant to the [p]olicy." These allegations certainly mimic the language of the elements of a claim for unjust enrichment. The plaintiff has alleged that the defendant was benefited and that the defendant unjustly failed to pay these benefits to the plaintiff's detriment.
The defendant cites Ramondetta v. Amenta, 97 Conn.App. 151, 165, 903 A.2d 232 (2006), for the proposition that the plaintiff is required to allege the specific monetary benefit received by the defendant. While this case does indicate that the proper amount of damage in an unjust enrichment case is the benefit to the defendant, not the loss to the plaintiff, Ramondetta does not stand for the proposition that the plaintiff must plead the precise amount of damages retained by the defendant. Moreover, Ramondetta did not appear before the Appellate Court on review of a motion to strike, but rather, was an appeal from a judgment regarding damages. The defendant has offered no further case law in support of its argument. Accordingly, the defendant's motion to strike count six is denied.
Seventh Count: CUIPA
In count seven, the plaintiff alleges that the defendant has committed a violation of CUIPA. The defendant moves to strike this count as legally insufficient because the plaintiff does not adequately plead that the defendant was engaging in a general business practice when it committed the alleged malfeasances. The plaintiff contends that she has sufficiently alleged a violation of CUIPA.
General Statutes § 38a-815 provides in relevant part: "No person shall engage in this state in any trade practice which is defined in section 38a-816 as, or determined pursuant to sections 38a-817 and 38a-818 to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance." "The term general business practice is not defined in the statute, so we may look to the common understanding of the words as expressed in a dictionary . . . General is defined as prevalent, usual [or] widespread . . . and practice means [p]erformance or application habitually engaged in . . . [or] repeated or customary action." (Citations omitted; emphasis added; internal quotation marks omitted.) Lees v. Middlesex Ins. Co., 229 Conn. 842, 849 n. 8, 643 A.2d 1282 (1994). "In 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.) Id., 849. Therefore, "claims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct." Mead v. Burns, 199 Conn. 651, 659, 509 A.2d 11 (1986). Alleging "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." Lees v. Middlesex Ins. Co., supra, 849.
In support of her argument that the complaint sufficiently alleges a general business practice, the plaintiff points to Superior Court decision, Colonial Restaurant Supply, LLC v. Travelers Indemnity Co. of America, Superior Court, judicial district of New Haven, Docket No. CV 07 5009224 (June 12, 2007, Skolnick, J.T.R.). In Colonial Restaurant the plaintiff alleged that the defendant had engaged in similar unfair settlement practices with other insureds. The court found this allegation to be enough to effectively plead a general business practice. Id.
While a split of authority may exist as to the degree of detail required when alleging a CUIPA claim, the majority of Superior Court decisions addressing this issue suggest that some level of specificity is required to sufficiently plead such a claim. In Asmus Electric, Inc. v. G.M.G. Contractors, Inc. Superior Court, judicial district of New Haven, Docket No. CV 04 0489527 (February 25, 2005, Lopez, J.), the court determined that the plaintiff's allegation that the defendant "has engaged in similar conduct with other persons and entities with such frequency as to indicate a general business practice . . ." was insufficient as a matter of law. (Internal quotation marks omitted.) Id. Similarly, in Minnesota Lawyers Mutual Ins. Co. v. Lancia, Superior Court, judicial district of Fairfield, Docket No. CV 04-0412468 (April 17, 2006, Hiller, J.) the court ruled that conclusory statements simply alleging that a defendant's actions constituted a general business practice, failed to sufficiently set forth a CUIPA cause of action. See also Algiere v. Utica National Ins. Co., Superior Court, judicial district of New London, CV 04-0569670 (February 7, 2005, Jones, J.) Plaintiff failed to sufficiently plead CUIPA violation by merely asserting that defendant had previously engaged in similar conduct); Talcott v. Nielson, Superior Court, judicial district of Danbury, CV 01-0341837 (May 24, 2001, Holden, J.) (isolated instances of unfair insurance settlement practices do not sustain a CUIPA claim); Currie v. Aetna Casualty Surety Co., Superior Court, judicial district of Hartford, Docket No. CV 96 0558900 (August 12, 1999, Mulchay, J.), (alleging that the defendants have committed acts to other insureds and policy holders was insufficient to constitute a general business practice). These decisions are indicative of a general trend among Superior Court judges to grant a motion to strike a CUIPA claim when a plaintiff has alleged other acts of insurance misconduct by the defendant but has failed to plead a factual basis for that claim. Finocchio v. Atlantic Mutual Ins., Superior Court, judicial district of Stamford, Docket No. CV 09-5009607 (April 22, 2009, Adams, J.) [47 Conn. L. Rptr. 624].
In the present case, count seven alleges that as an ordinary part of its general business practice, Allstate has regularly refused to pay claims, failing to inform or deny coverage of claims within a reasonable time after proof of loss statements have been completed and failed to effectuate prompt, fair and equitable settlements of claims. There is no direct allegation that the defendant committed these alleged malfeasances against any claimant other than the plaintiff. Neither pleading "claims" in the plural, nor making broad references to "general business practices," sufficiently meets the requisite threshold. As Connecticut is a fact pleading state, these allegations are insufficient as a matter of law to form the basis for a legally cognizable CUIPA claim. Accordingly, the defendant's motion to strike count seven is granted.
Eighth Count: CUTPA
In count eight, the plaintiff alleges a violation of CUTPA. Specifically, the plaintiff alleges that the defendant committed unfair and deceptive trade practices as a result of breaches of the covenant of good faith and fair dealing and violations of CUIPA. The defendant moves to strike this count asserting that it fails to allege a general business practice and fails to sufficiently plead corrupt, immoral and/or unscrupulous behavior or any facts to satisfy the "cigarette rule." The plaintiff argues that she has alleged sufficient facts to establish a CUTPA claim under the cigarette rule as she has pleaded a violation of CUIPA.
It is well established that CUTPA affords a private cause of action to any individual who has suffered an ascertainable loss as a result of the employment of a prohibited practice. Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 625, 910 A.2d 209 (2006); Connecticut General Statutes § 42-110g(a). In Mead v. Burns, supra, 199 Conn. 663, our Supreme Court determined that a plaintiff may bring an action under CUTPA for violations of CUIPA. "[A] CUTPA claim based on an alleged unfair claim settlement practice prohibited by § 38a-816(6) require[s] proof, as under CUIPA, that the unfair settlement practice had been committed or performed by the defendant with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., supra, 229 Conn. 850. As the court has granted the defendant's motion to strike the CUIPA count the plaintiff must demonstrate an independent basis for bringing the CUTPA claim.
A CUTPA claim can independently stand, even in instances where a CUIPA count has been stricken, providing that the plaintiff has pleaded sufficient facts to establish unfair and deceptive trade practices as defined under § 42-110b. Palmieri v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 07 5012326 (January 29, 2009, Tobin, J.); see Don Beach Movers, Inc. v. Transguard Ins. Co. of America, Inc., Superior Court, judicial district of New London, Docket No. CV 05 4002395 (March 8, 2006, Jones, J.).
"[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
Count eight incorporates all of the facts alleged in the previous seven counts. Included in the first seven counts are allegations that the defendant violated the covenant of good faith and fair dealing and intentionally made misrepresentations regarding its intent to settle the plaintiff's claim, made unnecessary requests for documentation with the intent of prolonging the negotiation process and misleadingly promised that a settlement offer was forthcoming when one was never tendered. Construed in a light most favorable to the plaintiff, these allegations satisfy the second prong of the cigarette rule, in that they are arguably indicative of "immoral, unethical, oppressive or unscrupulous" behaviors. See Telesis v. Health Resources, Superior Court, judicial district of Middletown, CV 000597269 (February 28, 2001, Gilardi, J.) (pleading intent to hinder, delay or defraud sufficiently support the allegations of unfair deceptive, immoral, unethical, unscrupulous or oppressive conduct); Belic v. Caro, Superior Court, judicial district of New Haven, CV 05 4004795 (July 27, 2006, Taylor, J.) (misrepresentation of professional experiences sufficient to create a cause of action under CUTPA).
Accordingly, the defendant's motion to strike count eight is denied.
Conclusion
For the reasons stated above, the defendant's motion to strike counts one, two, three, four, five, six and eight is denied. The motion to strike count seven, CUIPA, is granted as the plaintiff has failed to allege a general business practice.