Opinion
No. CV04 4000567-S
March 29, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
On August 19, 2004, the plaintiff, James Selle, filed a four-count complaint against the defendant, Geico Insurance Company, in connection with injuries he sustained as a result of an automobile accident. At the time of the accident, the plaintiff was insured under an insurance policy issued by the defendant. The policy provided coverage for uninsured/underinsured motorist benefits. After exhausting the insurance benefits held by the third-party tortfeasor, the plaintiff brought a claim for underinsured motorist benefits pursuant to the provisions of his policy with the defendant. The defendant has failed to pay the plaintiff the claimed underinsured motorist benefits.
The plaintiff claims in counts one through four of his complaint, respectively, breach of contract, breach of implied covenant of good faith and fair dealing and violations of General Statutes § 38a-816(a) of the Connecticut Unfair Insurance Practices Act (CUIPA) and General Statutes § 42-110b(a) of the Connecticut Unfair Trade Practices Act (CUTPA). Before the court is the defendant's motion to strike count three, the CUIPA claim, and count four, the CUTPA claim.
In its motion to strike, the defendant argues that count three fails to state a claim for which relief can be granted because CUIPA does not provide for a private cause of action and, moreover, even if the court were to allow a private cause of action under CUIPA, the plaintiff failed to plead sufficient facts to satisfy the general business practice requirement of CUIPA. The plaintiff counters that CUIPA does permit a private right of action and argues that the defendant has engaged in unfair settlement practices in violation of § 38a-816(6) with such frequency as to indicate a general business practice, thereby violating CUIPA.
This court, in conformance with its prior decisions on this issue, joins the majority of Superior Courts which hold "there is no express authority under CUIPA for a private cause of action." See Fedora v. Worchester Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285288 (September 28, 2004, Tanzer, J.); see also Szlachetka v. Mullen, Superior Court, judicial district of New Britain, Docket No. CV 02 0513409 (February 25, 2003, Dunnell, J.) (cataloguing Superior Court decisions declining to recognize a private right of action under CUIPA).
The motion to strike count three of the plaintiff's complaint is therefore granted.
In count four, the plaintiff alleges that the defendant's conduct constituted a violation of CUTPA. The defendant, in its motion, argues that count four must be stricken because claims against an insurance company under CUTPA for alleged unfair settlement practices must be predicated on a violation of CUIPA and the plaintiff failed to allege a valid violation of CUIPA. The plaintiff counters that the CUTPA claim is viable because the complaint sufficiently sets forth allegations which show violations of CUIPA by the defendant.
"Although the CUIPA violations alleged by the plaintiff cannot stand on their own, CUTPA authorizes a private cause of action to enforce claims derived from CUIPA." Fedora v. Worchester Ins. Co., supra, Superior Court, Docket No. CV 03 0285288. The Supreme Court observed in Lees v. Middlesex Ins. Co., 219 Conn. 644, 654, 594 A.2d 952 (1991) that "a private cause of action exists under CUTPA to enforce alleged CUIPA violations." There, "the CIJIPA allegations brought by the plaintiff under the CUTPA claim [provided] the means by which a private cause of action against the defendant for the alleged CUIPA violations [could] be maintained." Fedora v. Worchester Ins. Co., supra, Superior Court, Docket No. CV 03 0285288. Here, however, the CUTPA claim does not refer to a violation of CUIPA. Although the plaintiff, in count three of the complaint (his CUIPA claim), alleges that the defendant violated § 38-816(6) (CUIPA) and § 42-110b(a) (CUTPA) by failing to pay the uninsured motorist benefits, he failed to incorporate these allegations into his CUTPA claim set forth in count four. Instead, count four incorporates paragraphs one through fifteen of count one of the complaint, which alleges breach of contract.
General Statutes § 38a-815 provides the foundation for a CUIPA claim, stating in relevant part, "[n]o person shall engage in this state in any trade practice which is defined in Section 38a-816 as . . . an unfair method of competition or an unfair or deceptive act or practice in the business of insurance." Section 42-110b(a) of CUTPA provides in relevant part, "[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."
Although "the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation"; Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992); "not every contractual breach rises to the level of a CUTPA violation." Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 570-71, 845 A.2d 417 (2004) (finding that the jury reasonably could have concluded that defendant breached the contract, thereby violating an implied covenant of good faith and fair dealing, without violating CUTPA). "[T]he majority of Superior Courts have held that a breach of contract does not violate CUTPA unless there are substantial aggravating circumstances." Consumer Incentive Services v. Memberworks, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 99 0362655 (December 8, 2003, Wolven, J.) ( 36 Conn. L. Rptr. 298, 304); see also Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn.Sup. 575, 580, 595 A.2d 951 (1991) ( 3 Conn. L. Rptr. 711) (noting that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA). "The question therefore becomes whether the plaintiff has alleged in its complaint the `substantial aggravating circumstances' attending the breach of contract necessary to establish a CUTPA violation." (Internal quotation marks omitted.) Jennings Smith Investigations v. Southern New England Telephone Co., Superior Court, judicial district of Hartford, Docket No. CV 03 0827136 (September 8, 2004, Shapiro, J.).
In count four, the plaintiff, by way of his incorporation of count one, sets forth a simple breach of contract claim. He does not allege that the defendant did anything other than not fulfill its contractual obligations by failing to pay the plaintiff the claimed underinsured motorist benefits. Absent more, the plaintiff's allegations of breach of contract do not rise to the level of a CUTPA violation. Viewing the complaint in the light most favorable to sustaining its legal sufficiency, the court cannot find that the plaintiff has pled sufficient fact to support a claim under CUTPA. The motion to strike count four of the plaintiff's complaint is therefore granted.
BY THE COURT
Tanzer, Judge