Opinion
No. CV 09-5032399 S
July 7, 2010
MEMORANDUM OF DECISION
The plaintiffs, Robinson Aviation, Inc. and K R Robinson Associates Limited Partnership, filed suit against the city of New Haven, Tweed-New Haven Airport Authority ("Tweed") and Aviation Facilities Company, Inc. ("AFCO") on October 21, 2009. The plaintiffs withdrew their action as to the city of New Haven on May 4, 2010. As a result, Tweed and AFCO will hereafter be referred to as "the defendants."
The basic facts underlying this action are as follows. The city of New Haven owns the subject airport and leased it to Tweed, thereby assigning to it all responsibility for the management and operations of the airport. Under a separate agreement, Tweed retained AFCO to manage and operate the airport on its behalf. On October 1, 1999, Tweed entered into a forty-year sublease with the plaintiffs that allowed the plaintiffs to operate a general aviation business on a certain portion of the airport. The parties refer to this lease as a "Fixed Based Operator lease" or "FBO lease." The plaintiff and Tweed entered into an amended FBO lease on or about November 12, 2008 ("FBO amended lease" or "amendment").
The plaintiffs allege that the construction of federally-mandated runway safety areas and taxiway improvements from March 2008 until December 2008, interfered with their business. The plaintiffs allege that as early as 2005, the defendants were aware of the scope of the construction and its associated runway closures and withheld from the plaintiffs material facts in this regard when the parties entered into the FBO amended lease.
On March 25, 2010, the plaintiffs filed a revised, twelve-count complaint, which is the operative complaint. The defendants filed a motion to strike on April 12, 2010. The plaintiffs filed an objection on April 20, 2010. The defendants filed a reply on May 7, 2010. The parties appeared for oral argument on May 24, 2010.
"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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The defendants make several, distinct arguments in support of their motion to strike count one and counts three through twelve, which will be addressed by the court accordingly.
Count One: Breach of Contract as to AFCO
The defendants argue that count one, alleging breach of contract as to AFCO, should be stricken because only Tweed and the plaintiffs are parties to the FBO lease, which allows the plaintiffs to operate a general aviation business on a certain portion of the airport. The plaintiffs offer no objection to this argument. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). Therefore, the court strikes count one.
Count Three: Unjust Enrichment as to Tweed
The defendants argue that count three, alleging unjust enrichment as to Tweed, should be stricken because the plaintiffs have failed to plead each of the necessary elements of a claim of unjust enrichment and because there is an available remedy at law. "Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (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.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 194, 880 A.2d 945 (2005). "Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff." Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001).
Furthermore, "[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Drejer v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). "Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims . . . Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails." (Citations omitted; internal quotation marks omitted.) J N Electric, Inc. v. Notkins, Superior Court, judicial district of New Haven, Docket No. CV 08 5020144 [ 47 Conn. L. Rptr. 804] (May 20, 2009, Keegan, J.).
Some Superior Court decisions, however, have stricken a party's unjust enrichment count where that party pleads both unjust enrichment and breach of contract, and the party's unjust enrichment count incorporates by reference the breach of contract allegations. See Bridgeport Harbor Place v. Ganim, I, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 04 0184523 (October 5, 2007, Stevens, J.); Silktown Roofing v. Haynes Construction, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004864 (August 3, 2006, Dubay, J.) ( 41 Conn. L. Rptr. 770, 771); Burke v. The Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001838 (July 26, 2005, Jennings, J.). Here, the plaintiffs incorporate the allegations contained in their breach of contract count into their unjust enrichment count. The plaintiffs' allegations in support of their unjust enrichment claim rely exclusively on the FBO lease agreement and the amendment thereto. As a result, the court strikes count three.
Count Four: Breach of Duty of Good Faith and Fair Dealing as to AFCO
The defendants argue that count four should be stricken because, as previously argued in regard to count one, AFCO was not a party to the FBO lease between Tweed and the plaintiffs. The plaintiffs counter that although there is no contract between them and AFCO, AFCO owes them a duty of good faith and fair dealing based upon its agreement with Tweed to operate the airport. "[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." (Internal quotation marks omitted.) Keller v. Beckenstein, supra, 117 Conn.App. 563.
"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 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 . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . ." (Citation omitted; internal quotation marks omitted.) Id., 563-64.
The plaintiffs' complaint alleges that AFCO, by its agreement with Tweed, is responsible for enforcing compliance with, and drafting updates as appropriate to the "Minimum Standards and Regulations for the Development and Operation of Aviation Facilities at the Airport" ("Minimum Standards"). Further, AFCO issues "Notices to Airmen," "NOTAM(s)" which control the use of the runways pursuant to FAA regulations. The court notes that central to the plaintiffs' claims against AFCO is AFCO's issuance of NOTAMs restricting the plaintiffs' use of runways during the complained of construction, which detrimentally affected the plaintiffs' business operations. Count four specifically references AFCO's issuance of several NOTAMs that impaired their rights under the FBO lease and amendment.
While the court finds that there is no contract between the plaintiffs and AFCO, the court denies the defendants' motion to strike this count. The agreement between Tweed and AFCO obligated AFCO to perform managerial duties, including enforcing compliance with the Minimum Standards and issuing NOTAMs, which affect the businesses of fixed base operators, such as the plaintiffs. As a result, the court is satisfied that this agreement is sufficient to form a "contractual relationship" between AFCO and the plaintiffs. Further, the plaintiffs' specific reference to AFCO's issuance of NOTAMs in bad faith is sufficient to state a claim for breach of the covenant of good faith and fair dealing. The motion to strike count four is therefore, denied.
Count Five: Breach of Duty of Good Faith and Fair Dealing as to Tweed
The defendant argues that the fifth count should be stricken because the plaintiffs have failed to allege that Tweed acted in bad faith because AFCO's issuance of NOTAMs are not attributable to Tweed. The plaintiffs counter that AFCO was acting as an agent of Tweed and thus, its actions are fairly attributed to Tweed. The court agrees.
As previously discussed in regard to count four, the plaintiffs plead sufficient facts demonstrating that AFCO acted in bad faith in its issuance of NOTAMs, which interrupted the plaintiffs' business operations during the construction project. AFCO's authority to issue NOTAMs is based upon its agreement with Tweed, which gives AFCO full responsibility over the managerial duties of the airport. As a result, the plaintiffs have pled sufficient facts as to the existence of an agency relationship between Tweed and AFCO. As such, the actions of AFCO, including its issuance of NOTAMs, are fairly attributable to Tweed. The defendants' motion to strike count five is therefore, denied.
Counts Six and Seven: Negligent Misrepresentation and/or Omission
As a preliminary matter, the court will address the defendants' argument as to the applicability of the economic loss doctrine. Although the defendants neglected to brief this argument in their memorandum in support and reply brief, they argued at oral argument that the doctrine barred the plaintiffs' tort claims and additionally, provided the court with numerous cases on the doctrine. The defendant's position is that since the gravamen of the plaintiffs' complaint is covered or governed by contact, their tort claims are displaced and made unavailable.
The economic loss doctrine is a judicially created principle which prohibits recovery in tort when the claim arises from a contract and only seeks economic losses. See Santoro, Inc. v. A.H Harris Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0828039 (September 23, 2004, Sheldon, J.) ( 38 Conn. L. Rptr. 4, 5-7). One decision of the Superior Court stated: "Although the defendant is correct that a mere breach of the contract would not afford a basis for a recovery in tort, but the necessary elements to establish negligence must be shown . . . there is no appellate authority supporting the proposition that common-law duties of care cannot emanate from contractual relationships, even when the contract is between commercial or sophisticated parties. Indeed, the most applicable appellate court cases are to the contrary. See, e.g., Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 579, 657 A.2d 212 (1995) (`The [plaintiffs] were not barred from pursuing a negligence claim solely because they also might have had a breach of contract claim'); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218-19, 520 A.2d 217 (1987) (`If the plaintiff's complaint otherwise contains the necessary elements of negligent misrepresentation, it survives a motion to strike even though [other counts] grounded in promissory estoppel must fall'); Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975) (`A party may be liable in negligence for the breach of a duty which arises out of a contractual relationship'); Sasso v. Ayotte, 155 Conn. 525, 529, 235 A.2d 636 (1967) (same)." State v. Maximus, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 07 5011488 (April 1, 2009, Stevens, J.) ( 47 Conn. L. Rptr. 642, 644) (denying motion to strike on the basis that the economic loss rule applies to cases involving the UCC and the allegations of the complaint indicate that the contract between the parties involved a services contract and not a sales contract governed by the UCC).
Some decisions of the Superior Court hold that the doctrine applies "broadly to preclude tort claims seeking economic losses emanating from any contractual transactions involving commercial parties." Id., 644-45.
See Greater New Haven Transit District v. Nafis Young Engineers, Inc., Superior Court, judicial district New Haven, Docket No. CV 02 0469107 (July 1, 2003, Arnold, J.) ( 35 Conn. L. Rptr. 100, 103); CT Page 13976 Dobco, Inc. v. Williams Development Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 99 0072152 (May 12, 2002, Sferrazza, J.) ( 32 Conn. L. Rptr. 214, 215-16); Morganti National, Inc. v. Greenwich Hospital Association, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 99 0160125 (September 27, 2001, McWeeney, J.); Worldwide Preservation Services, LLC. v. The IVth Shea, LLC, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0167154 (February 1, 2001, Tierney, J.) ( 29 Conn. L. Rptr. 1, 3-6).
More recently, however, a growing majority construe it more narrowly to "preclude tort claims seeking economic losses in cases involving the sale of goods governed by the provisions of the UCC." Id., 645. This court agrees with the latter line of Superior Court decisions and as a result, rejects the defendants' argument that the economic loss doctrine bars the plaintiffs' tort claims in this case.
See, e.g., Hoydic v. B E Juices, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 4010104 (February 27, 2008, Jennings, J.); New Canaan v. Brooks Laboratories, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006797 (November 7, 2007, Tobin, J.) ( 44 Conn. L. Rptr. 501, 503-04); Metcoff v. NCT Group, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X04 CV 04 0184701 (January 10, 2005, Alander, J); Santoro, Inc. v. A.H. Harris Sons, Inc., supra, 38 Conn. L. Rptr. 6-7.
In regard to counts six and seven, "an 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). The plaintiffs' allegations of negligent misrepresentation against the defendants are predicated upon AFCO's representations to the plaintiffs, in and around 2008, that the plaintiffs would be afforded all of the rights associated with a full service FBO as defined by the Minimum Standards. As previously noted, AFCO's issuance of NOTAMs during construction restricted the plaintiffs' rights under the FBO lease and amendment. In regard to Tweed, the plaintiffs allege that it misrepresented the effects of the construction projects in negotiating and entering into the FBO amendment with the plaintiffs.
The defendants first argue that this count should be stricken because they are protected by governmental immunity. Specifically, the defendants' argument appears to be that Tweed is an agent of the city of New Haven and that AFCO is an agent of Tweed. The defendants repeatedly assert in their brief, however, that AFCO is not an agent or employee of the city of New Haven and yet, argue that it is immune under General Statutes § 52-557n because AFCO performed a discretionary function in managing the airport. Additionally, the court notes that the plaintiffs withdrew their complaint against the city of New Haven.
§ 52-557n(a), in relevant part, provides: "(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because "governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). Here, neither the existence of an agency relationship between Tweed and New Haven nor whether Tweed and AFCO were engaging in a governmental function are clear from the pleadings. Thus, the court will not strike counts six and seven on this basis.
The defendants offered two cases in support of their governmental immunity argument. One opinion addressed the applicability of governmental immunity in a motion for summary judgment; Interstate Aviation, Inc. v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 92 0240874 (May 25, 1995, Silbert, J.); and the other addressed the issue in a post-trial memorandum of decision. H.J. Kelly Associates v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV03 0285781 (January 17, 2008, Taylor, J.).
Furthermore, contrary to the defendants' argument, the allegations contained in the plaintiffs' claims for negligent misrepresentation are different from those contained in the plaintiffs' claim for breach of contract. Additionally, the court is satisfied that the plaintiffs have alleged sufficient facts to demonstrate that the defendants negligently misrepresented the scope and extent of the construction projects and its resulting impact on the plaintiffs' business operations. As such, the court denies the defendants' motion to strike counts six and seven.
Counts Eight and Nine: Fraudulent Misrepresentation and/or Omission as to AFCO and Tweed
"[A] claim of fraudulent misrepresentation, [is] a separate and distinct tort from the tort of negligent misrepresentation." Kramer v. Petisi, 285 Conn. 674, 684, 940 A.2d 800 (2008). "In contrast to a negligent representation, [a] fraudulent representation . . . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it." Id. "The essential elements of a cause of action in [fraudulent misrepresentation] 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 the false representation to his injury." (Internal quotation marks omitted.) Solano v. Calegari, 108 Conn.App. 731, 741, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008). "Fraudulent misrepresentation requires proof of an intent to mislead. A fraudulent misrepresentation, as opposed to an innocent or negligent misrepresentation, is an intentional one which is made as a statement of fact with the intent to mislead when the speaker knows it to be untrue." Ellis v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009711 (April 8, 2010, Maiocco, J.T.R.).
The court denies the defendants' motion to strike counts eight and nine. As previously recognized in this decision, "[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Drejer v. Upjohn Co., supra, 196 Conn. 245. In counts six and seven, the plaintiffs allege that the defendants, in making misrepresentations in regard to the pendency and scope of the construction projects and its effect on the plaintiffs' business, "failed to exercise due care to ensure the truth and accuracy of the information conveyed . . ." In counts eight and nine, the plaintiffs allege that "in making said representations and knowing of the pendency of various construction projects at the airport, knew that these material misrepresentations were untrue and willfully made them anyway." The court is satisfied that the plaintiffs have sufficiently advanced alternative theories of liability against the defendants as to their knowledge of the pendency and scope of the construction projects when they entered into the FBO lease and amendment and in discussing the Minimum Standards with the plaintiffs.
Counts Ten and Eleven: Tortious Interference with Contract as to AFCO
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 64 Conn.App. 192, 204, 779 A.2d 822 (2001), rev'd on other grounds, 260 Conn. 766, 892 A.2d 44 (2002). Furthermore, "it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties . . . [A]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract . . . [but the agent] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain." (Citations omitted; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).
In count ten, the plaintiffs allege that AFCO's issuance of NOTAMs, along with other specific actions, interfered with their contract with Tweed. In count eleven, the plaintiffs allege that AFCO's actions interfered with their performance of their contract with Tweed. The defendants argue that AFCO, as an agent of Tweed, cannot be liable for tortious interference with the contract between the plaintiffs and Tweed unless AFCO was acting outside of the scope of its duties as an agent for Tweed. The court agrees. While the plaintiffs allege that AFCO issued NOTAMs with the intention to disrupt the contractual relationship between the plaintiffs and Tweed, they fail to allege that the manner or scope in which AFCO issued the NOTAMs was outside of the scope of its agency relationship with Tweed. In fact, the plaintiffs' complaint clearly alleges that AFCO, by its agreement with Tweed, is responsible for enforcing compliance with the Minimum Standards, which includes the issuance of NOTAMs. As such, the court grants the defendants' motion to strike counts ten and eleven.
Count Twelve: Civil Conspiracy as to all Defendants
"In order to survive a motion to strike a civil conspiracy count, the plaintiffs must properly allege: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 647, 804 A.2d 180 (2002), on appeal after remand, 277 Conn. 617, 894 A.2d 240 (2006).
Moreover, "there is no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citations omitted; internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779 n. 37, 835 A.2d 953 (2003). "A claim of civil conspiracy . . . is insufficient unless based on some underlying cause of action . . . Consequently, for a plaintiff to recover on a conspiracy claim, the court must find the facts necessary to satisfy the elements of an independent underlying cause of action." (Citations omitted; internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).
"Thus, the purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing. Implicit in this purpose, and in the principle that there must be an underlying tort for the viability of a civil conspiracy claim, is the notion that the coconspirator be liable for the damages flowing from the underlying tortious conduct to which the coconspirator agreed." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., supra, 277 Conn. 636.
The plaintiffs allege in count twelve are that the defendants "intended to do an unlawful act, namely conspiring to drive the plaintiffs out of business by unlawful means," including the issuing of NOTAMs that impacted their business. The plaintiffs base their conspiracy count on the other causes of action alleged in their complaint: the defendants' alleged breach of contract, breach of duty of good faith and fair dealing, negligent misrepresentation/omission, fraudulent misrepresentation/omission and tortious interference with a contract. As such, the defendants' motion to strike this count is denied because the plaintiffs have sufficiently plead that their civil conspiracy claim is based on substantive tort claims that remain viable as a result of this decision.
A decision of the Superior Court granted a motion to strike a civil conspiracy count based on breach of contract, reasoning that: "[T]he language defining conspiracies has been couched in language pertaining to tort, and the [subject count] appears to limit itself to the underlying cause of action of breach of contract . . ." Stamford Wrecking Co. v. New Haven, Superior Court, judicial district of Fairfield, Docket No. CV 08 5013102 (December 8, 2008, Arnold, J.). Here, however, the plaintiffs base their civil conspiracy count on all of the tort claims asserted in their complaint. The majority of these claims remain viable as a result of this decision.
Conclusion
The court grants the defendants' motion to strike counts one, three, ten and eleven and denies their motion to strike counts four through nine and count twelve.