Opinion
No. CV 10 6010177 S
December 13, 2010
MEMORANDUM OF DECISION
On April 14, 2010, the plaintiffs, Dawn Weimer and Robert Weimer, filed an eleven-count complaint against the defendants, Allstate Insurance Company, ISE Engineering and John P. Certuse, alleging the following facts. The plaintiffs were and are the owners of real property located at 81 Jamestown Drive in Guilford, Connecticut. Allstate is a corporation authorized to issue insurance policies to property owners within Connecticut. ISE Engineering is a corporation that was hired by Allstate to perform an investigation at the plaintiffs' property. John P. Certuse is an individual that was hired by Allstate to perform an investigation at the plaintiffs' property. On or about July 15, 2009, Allstate issued to the plaintiffs a homeowner's insurance policy. On or about January 11, 2010, the plaintiffs suffered damages to the property due to frozen pipes. The insurance policy was in full force and effect at this time. The damage caused by the frozen pipes to the plaintiffs' property falls under the coverage provided by the plaintiffs' policy with Allstate. The plaintiffs had paid all premiums due under the policy and performed all obligations required under the policy up to the date of said freeze loss and resulting damage. The plaintiffs have performed all obligations required under the policy since the date of the freeze loss, including submitting a claim for damages, which includes damages to the building, personal property and loss of use and/or rental income.
The motion to strike presently at issue was brought by the defendants ISE Engineering and John P. Certuse, and not by the third defendant, Allstate. Herein, the two defendants, ISE Engineering and John P. Certuse, will be referred to collectively as "the defendants," whereas Allstate will be referred to by name.
The plaintiffs further allege that following the freeze loss incident on January 11, 2010, Allstate retained the defendants to conduct an investigation into the origin and cause of the freeze loss at the plaintiffs' property. The defendants performed investigative services on behalf of Allstate pursuant to an oral or written contract for services. The plaintiffs "were an intended or unintended third-party beneficiary of the contract" between Allstate and the defendants "inasmuch as defendant Allstate relied, either in whole or in part, on the investigation [the defendants] conducted in its analysis of whether [to] compensate the Plaintiffs for their loss and damages. An investigation that would ultimately determine coverage for the Plaintiffs, arguably, makes them intended beneficiaries of the Contract . . ."
During the investigation the defendants "negligently and carelessly failed to adhere to accepted investigation practices, procedures, methodologies, and standards, thereby breaching the standard of care for a competent investigator." The defendants "failed to obtain all relevant data . . . failed to properly and completely analyze all relevant data . . . failed to formulate alternative hypotheses . . . failed to adequate[ly] test the hypothesis it did form, and . . . failed to test alternative hypotheses; all in complete disregard of the accepted methodology for investigations." The investigation relied on inadequate and incomplete information concerning a prior loss to form a basis for an opinion. As a result of the defendant's negligence, the investigation into the cause of the freeze loss at the plaintiffs' property was inadequate, incomplete and insufficient. Allstate had pre-determined that the plaintiffs' claim was going to be denied, and the investigation was carried out in a biased and prejudiced way to achieve this outcome. Allstate relied upon the results of the defendants' investigation and rejected the plaintiffs' claim under their insurance policy and refused to compensate the plaintiffs for their losses and damages.
The plaintiffs further allege that in the report issued to Allstate, the defendant ISE Engineering concluded that "the most probable cause of the freeze loss was the fault of the Plaintiffs." In a report issued to Allstate, the defendant John P. Certuse concluded that "the most probable cause of the freeze loss was the actions or inactions of the Plaintiffs . . . would be considered . . . fraudulent against the insurance company." The report of the defendant John P. Certuse, which Allstate used in the denial of the plaintiffs' claim, is defamatory in that it has a letter attached to it "essentially stating that the Plaintiffs were negligent, knew their actions to be same and the spirit of said letter sounds in fraud, a crime, thereby injuring the Plaintiffs' reputation in the community and causing severe damages in association with that unfounded claim of criminal conduct." The statements by both defendants were published in reports submitted to Allstate. These reports have been disseminated to numerous individuals, including Allstate's counsel and investigators hired by Allstate. The statements made by the defendants concerning the plaintiffs' involvement in the cause of the freeze loss are untrue and false. The statements made by defendants in their "public report[s] have the tendency to harm the Plaintiffs' reputation and to lower the Plaintiffs in the estimation of the community."
Counts one through five of the complaint allege the following claims against Allstate: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of General Statutes § 42-110 et seq. [CUPTA]; (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress. Counts six through eight and nine through eleven of the complaint allege the following claims against defendants ISE Engineering and John P. Certuse, respectively: (1) negligence; (2) breach of contract; and (3) defamation.
On June 2, 2010, Allstate filed a request to revise counts one through five of the complaint. On July 6, 2010, the plaintiffs filed a request for extension of time to respond to the request to revise. On July 6, 2010, the defendants filed the present motion to strike counts six through eleven of the complaint, and the accompanying memorandum of law in support of said motion. On July 27, 2010, the plaintiffs filed a request for extension of time to respond to the motion to strike, specifically seeking an extension until August 26, 2010. On September 3, 2010, the plaintiffs filed a revised complaint in response to Allstate's request to revise. Also on September 3, 2010, the plaintiffs filed an objection to the defendants' motion to strike counts six, seven, nine and ten of the complaint, arguing that the motion to strike should be dismissed because it was "premature" since it was filed after Allstate had filed the request to revise, but before the plaintiffs had filed the revised complaint. On September 10, 2010, the defendants filed a reply brief in support of the motion to strike, arguing that the revisions in the revised complaint were minor and do not affect the underlying arguments made in the motion to strike, and that the motion to strike is "equally applicable to the Plaintiffs' Revised Complaint." On September 13, 2010, the plaintiffs filed a second objection to the defendants' motion to strike counts six, seven, nine and ten of the complaint, accompanied by a memorandum of law in support of the objection. The plaintiffs did not object to the defendant's motion to strike counts eight and eleven, the defamation claims, against the defendants.
On September 21, 2010, Allstate filed an objection to the plaintiffs' revised complaint, arguing that the plaintiffs did not file a timely objection to the request to revise, therefore Allstate's request to revise should be deemed granted on July 2, 2010, after thirty days passed from the date the request to revise was filed. Allstate further argued that the revised complaint did not actually reflect the changes sought in the request to revise, therefore the "revised complaint" was really an improperly filed amended complaint that the plaintiffs did not get leave from the court to file. On September 23, 2010, the plaintiffs filed a reply to Allstate's objection to the revised complaint. On October 4, 2010, Judge Lager issued an order sustaining Allstate's objection to the plaintiffs' revised complaint, and directing the plaintiffs to file a second revised complaint that was consistent with the request to revise by October 15, 2010. On October 15, 2010, the plaintiffs filed a revised complaint. The revised complaint contained the same causes of action asserted in the original complaint.
Judge Lager ruled that the request to revise was "deemed automatically granted on July 2, 2010 per Practice Book 10-37(a) in the absence of timely filed objections or a timely filed motion for extension of time. The motion for extension of time filed on July 6, 2010 was not timely and it was not acted upon by the court. Accordingly, the plaintiff is directed to file a revised complaint consistent with the Request to Revise by no later than October 15, 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). "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendants argue that the court should strike counts six through eleven of the plaintiffs' complaint because the plaintiffs cannot maintain causes of action for negligence, breach of contract and defamation based on the factual allegations made in the complaint. The defendants argue that the plaintiffs cannot maintain a cause of action for negligence, as alleged in counts six and nine, because the plaintiffs have not alleged facts that, if provable, would show that the defendants owed a duty to the plaintiffs. The defendants argue that the plaintiffs cannot maintain a cause of action for breach of contract, as alleged in counts seven and ten, because the plaintiffs have not alleged facts that, if provable, would show the plaintiffs were intended third-party beneficiaries of the agreement between Allstate and the defendants. The defendants argue that the plaintiffs cannot maintain a cause of action for defamation, as alleged in counts eight and eleven, because the defendants' alleged defamatory statements were opinions and, in the alternative, the statements were made in the course of fulfilling the defendants' private contractual duties to Allstate, and are thus protected by a qualified privilege. The plaintiffs argue that the motion to strike should be denied because (1) the motion to strike was "premature" since it was filed before the plaintiffs filed a revised complaint in response to Allstate's request to revise, and (2) the complaint contains sufficient facts to support the allegation that the plaintiffs were third-party beneficiaries of the contract between Allstate and the defendants, and therefore the defendants owed the plaintiffs a duty.
The first issue that must be addressed is whether the motion to strike should be denied because it was submitted on July 6, 2010, after Allstate had filed their June 2, 2010 request to revise, but before the plaintiffs had filed a revised complaint. This somewhat complicated procedural issue has been caused by the fact that Allstate and the defendants are operating independently of one another. The plaintiffs argue that the motion to strike should be denied because it was "premature" to file the motion before the revised complaint was submitted. The defendants argue that the changes to counts six through eleven in the revised complaint are minor, do not change the substance of their arguments in support of the motion to strike, and therefore request that the court apply their July 6, 2010 motion to strike, and accompanying memorandum of law, to the revised complaint.
The plaintiffs' argument suggests, without explicitly stating, that the defendants' motion to strike is directed at an inoperative complaint. There is little doubt that "[w]hen an amended pleading is filed, it operates as a waiver of the original pleading." Wilson v. Hryniewicz, 38 Conn.App. 715, 719, 663 A.2d 1073 (1995). When, however, a plaintiff is compelled to file a revised complaint, subject to a request to revise, it is not the same situation as the plaintiff filing an amended complaint. When the defendants filed their motion to strike, the request to revise had already become valid. Judge Lager's October 4, 2010 order confirmed that the request to revise was deemed granted as of July 2, 2010 based on the passage of thirty days from the day Allstate filed the request. The motion to strike was, therefore, directed to the original complaint subject to the request to revise. Although the revised complaint was not yet submitted by the plaintiffs when the defendant filed the motion to strike, the substance of the revisions required to be made to the complaint in order to reflect the request to revise were known and operative as of July 2, 2010. Since the defendants have taken the position that their July 6, 2010 motion to strike and accompanying memorandum of law in support should be applied to the revised complaint, and have made no objection to the revised complaint, it is in the interest of judicial economy to apply the motion to strike to the October 15, 2010 revised complaint. If the motion to strike were denied based on this procedural ground, the court would most likely address the substantive grounds for the motion to strike upon the defendants filing a near identical motion to strike directed specifically at the latest revised complaint. The court does not deny the motion to strike based on the filing of the motion before the revised complaint was filed.
With this procedural hurdle addressed, we now turn to the substantive issue of whether the plaintiffs have alleged sufficient facts to maintain a cause of action for negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Internal quotation marks omitted.) Right v. Breen, 88 Conn.App. 583, 586, 870 A.2d 1131 (2005). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy . . . We also have noted, however, that we are not required to address the first prong as to foreseeability if we determine, based on the public policy prong, that no duty of care existed." (Citations omitted; internal quotation marks omitted.) Neuhaus v DeCholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
The present case raises the question of whether, under public policy grounds, a duty of care should be found to extend from an independent insurance investigator, hired by an insurance company to investigate a claim, to the holder of the insurance policy. In Grossman v. Homesite Insurance Company, Superior Court, judicial district of Stamford, Docket No. 07 5004413 (July 6, 2009, Adams, J.) ( 48 Conn. L. Rptr. 160), the court addressed a factual situation very similar to the present case in determining whether public policy supports recognition of a duty of care owed by an independent insurance adjuster to an insurance policy holder. In Grossman, the plaintiffs filed an insurance claim with their insurance provider, Homesite Insurance Company ("Homesite"), after a fire caused damage to their home. Homesite hired the insurance adjusting company, Eagle Adjusting Services ("Eagle") to investigate the plaintiffs' claim. After a dispute arose concerning the amount of compensation the plaintiffs would receive from Homesite for their claim, the plaintiffs brought suit against both Homesite and Eagle. Eagle filed a motion to strike, amongst other causes of action, a claim for negligent infliction of emotional distress, arguing that they did not owe a duty of care to the plaintiffs. The court found that there was no Connecticut case law that addressed whether an independent insurance adjuster owed such a duty of care, but that there was a split of authority in other states, and that the majority of states do not allow a negligence claim to be brought against an independent insurance adjuster.
The states that do not allow negligence claims to be brought against independent insurance adjusters by the insured reason that "the relationship between adjuster and insured is sufficiently attenuated by the insurer's control over the adjuster to be an important factor that militates against imposing a further duty on the adjuster to the insured . . . More important . . . imposing a duty on the adjuster in these circumstances would work a fundamental change in the law. The law of agency requires a duty of absolute loyalty of the adjuster to its employer, the insurer . . . The independent adjuster's obligation is measured by the contract between the adjuster and the insurer . . . Creating a separate duty from the adjuster to the insured would thrust the adjuster into what could be an irreconcilable conflict between such duty and the adjuster's contractual duty to follow the instructions of its client, the insurer." (Internal quotation marks omitted.) Grossman v. Homesite Insurance Company, supra, 48 Conn. L. Rptr. 161-62. Further support for the public policy argument against finding a duty of care is that "the insured [can] still bring a bad faith claim against the insurer as a source of recovery . . . [and] the acts of the adjuster may be imputed to the insurer." Grossman v. Homesite Insurance Company, supra, 162.
The states that have recognized a duty owed by an independent investigator to the insured have focused on the foreseeability of the harm suffered by the insured. The New Hampshire Supreme Court reasoned that despite investigators not being in privity with the insured, the investigators "were fully aware that the plaintiffs could be harmed financially if they performed their investigation in a negligent manner and rendered a report to [the insurance company] that would cause the company to refuse payment to the plaintiffs. [The investigators] were also aware that there was a mutual duty of fair dealing between [the insurance company] and the plaintiffs." Morvay v. Hanover Ins. Cos., 127 N.H. 723, 726, 506 A.2d 333 (1986). Based on this reasoning, the court in Morvay held that the plaintiffs stated a negligence cause of action against the independent insurance investigators. Id. The court in Grossman v. Homesite Insurance Company, supra, 48 Conn. L. Rptr. 162, emphasized that this line of analysis only focuses on the foreseeability prong of the duty of care, and therefore differs from the two-prong test employed by Connecticut, since it does not address the public policy issues.
After weighing both rationales for determining whether to allow negligence claims to be brought against independent insurance adjusters by the insured, the court in Grossman v. Homesite Insurance Company, supra, 48 Conn. L. Rptr. 162, agreed with the majority of courts and held that for public policy reasons there is no duty of care owed by independent insurance adjusters to the insured. In the present case, the defendants are independent insurance investigators hired by Allstate to investigate the plaintiffs' insurance claim. The defendants have an agency relationship with Allstate, and owe them a duty of loyalty. If the court were to find that a separate duty is owed to the plaintiffs, it would create "an irreconcilable conflict between such duty and the adjuster's contractual duty to follow the instructions of its client, the insurer." Grossman v. Homesite Insurance Company, supra, 48 Conn. L. Rptr. 162. Therefore, counts six and nine, alleging negligence against the defendants, are stricken because under public policy grounds the defendants did not owe the plaintiffs a duty of care and therefore the facts alleged in the complaint cannot support a cause of action for negligence.
The next issue that must be addressed is whether the plaintiffs were intended beneficiaries of the contract between Allstate and the defendants, and therefore whether the plaintiffs have stated facts sufficient to support a cause of action for breach of contract. "The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled. In Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963), we quoted Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950), and reaffirmed that [t]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001).
The determination of whether the plaintiffs were third-party beneficiaries of the contract entered into between Allstate and the defendants must be based upon whether Allstate and the defendants intended to create any direct obligation between the defendants and the plaintiffs. The plaintiffs seem to argue that because Allstate hired the defendants to investigate the plaintiffs' claim, the, plaintiffs are therefore intended beneficiaries of the contract. This conclusion misinterprets Connecticut law. The fact that the contract entered into by Allstate and the defendants to investigate the plaintiffs' insurance claim could have an effect on whether the plaintiffs' claim was found valid is an insufficient basis to find third-party beneficiary status. The plaintiffs must show that the contracting parties intended to create a direct obligation between the defendants and the plaintiffs, not merely show that there was a connection between the investigation the defendants were contracted to perform and whether the insured's claim was rejected.
In the absence of any showing that the contracting parties intended to create a direct obligation between the defendants and the plaintiffs, the plaintiffs are not a third-party beneficiary of the contract. Allstate hired the defendants to investigate the plaintiffs' claim. The allegations made in the complaint do not show that the contracting parties intended to create a direct obligation between the defendants and the plaintiffs. Rather, the allegations allege that the intent of the parties to the contract was for the defendants to gather information for the benefit of Allstate, in order for Allstate to then use this information to make a determination regarding a distinct contract between Allstate and the plaintiffs. For the purposes of determining third-party beneficiary status, it is not relevant that the contract in question concerned the insured's claim or that the outcome of the investigation would be an important factor in determining whether the claim was found valid. The plaintiffs have not made any factual allegations regarding the formation of the contract, or the language in the contract that show the parties to the contract intended to create a direct obligation between the defendants and the plaintiffs. In the absence of any information regarding the contract that demonstrates the contracting party's intention to create a direct obligation between the defendants and the plaintiffs, the plaintiffs were not third-party beneficiaries of the agreement between Allstate and the defendants. For that reason counts seven and ten are stricken because the facts alleged in the complaint do not show that the plaintiffs were a third-party beneficiary of the contract between Allstate and the defendants, and therefore the facts alleged do not support a cause of action for breach of contract against the defendants.
The final issue to be addressed is whether the plaintiffs have stated facts sufficient to support of a cause of action for defamation based on the statements made by the defendants in the reports submitted to Allstate. The elements necessary to establish a cause of action for the tort of defamation are: "(1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). "To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). "A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact.
"This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." (Emphasis in original; citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-America, Inc., 188 Conn. 107, 111-12, 438 A.2d 1317 (1982). "Merely because a statement is phrased as an opinion does not, however, mean that it is not actionable. Connecticut courts have generally found that one must look at the context and the implications of the statement when determining if it was actionable or not . . .
"The Supreme Court of Connecticut has never explicitly stated whether it is for the court or the trier of fact to determine whether an allegedly defamatory statement is one of fact or opinion. However, there is support for the proposition that in Connecticut this determination is one of fact for the trier of fact." Sweeney v. Faracalas, Superior Court, judicial district of New Haven, Docket No. 09 5029383 (March 10, 2010, Robinson, J.).
In the present case, the plaintiffs allege that the following statements are defamatory: (1) the report submitted to Allstate by the defendant ISE Engineering stating that "the most probable cause of the freeze loss was the fault of the Plaintiffs;" and (2) the report submitted to Allstate by the defendant John P. Certuse stating that "the most probable cause of the freeze loss was the actions or inactions of the Plaintiffs . . . would be considered . . . fraudulent against the insurance company." The defendants argue that these statements are merely opinions, and therefore the plaintiffs cannot maintain a cause of action for defamation.
In both the plaintiffs' September 3, 2010 and September 13, 2010 objections to the defendants' motion to strike, the plaintiffs objected to striking counts 6, 7, 9 and 10, but did not object to striking counts 8 and 11, which are the defamation counts.
It is difficult to determine from these brief excerpts, taken out of context from the report as a whole, what facts the statements are based upon and, therefore, whether they qualify as statements of opinion or fact for the purposes of defamation. The statement attributed to the defendant ISE Engineering is phrased as an opinion, in that it begins with the words "the most probable," but it asserts that the plaintiffs were at fault for the freeze loss, which is a factual assertion that the plaintiffs' actions caused the freeze loss damage. The meaning of the statement attributed to the defendant John P. Certuse is particularly difficult to understand due to the ellipses in the quotation. The Certuse statement is phrased as an opinion, in that it begins with the words "the most probable," but it asserts that the plaintiffs were at fault for the freeze loss through their "actions or inactions" and appears to allege that the plaintiffs filed a fraudulent insurance claim. If the qualifying language, "the most probable," were removed these statements would more clearly read as factual statements regarding the plaintiffs' actions. For this reason, despite being phrased as opinions, these statements could be construed as factual statements that allege the plaintiffs took specific actions.
It is arguable that the statements are not mere opinion, because the defendants' statements are intended to assert objective facts, not merely the defendants' personal opinion. The statements do not appear to be mere opinion because the statements go beyond making a personal comment on previously stated facts and assert that the plaintiffs engaged in specific actions. In Sweeney v. Faracalas, supra, Superior Court, Docket No. 09 5029383, the court found that statements phrased as opinions could be construed as defamatory factual statements where the statements could "reasonably be taken as accusations of wrong-doing" and, therefore, the determination of whether the statements were defamatory should be determined by a fact finder. Id. The defendant in Sweeney cited the cases Mendez v. Vonroll Isola U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. 02 0462113 (April 8, 2004, Corradino, J.), and Stanwich v. Swift, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 03 0195684 (June 16, 2004, D'Andrea, J.T.R.), as examples of decisions holding that allegedly defamatory statements were mere expressions of opinion under the principles recognized in Daley v. Aetna Life and Casualty Co., supra, 249 Conn. 795, despite the strong presumption that these determinations be made by a fact finder. In these cases, however, the allegedly defamatory statements were found to be expressions of personal opinion based on facts that were part of the record in the case.
In the present case, however, it is not clear upon which facts the allegedly defamatory statements are based. The complaint does not contain any additional factual statements from the reports, therefore, it is not possible to determine upon which facts the alleged defamatory statements are based. See Goodrich v. Waterbury Republican-America, Inc., supra, 188 Conn. 111 (stating that the context in which a statement is made is essential in determining whether it is an additional fact or an opinion based on already stated facts). "[O]pinion statements that imply knowledge of existing facts are not protected and can ultimately be considered as defamatory as pure factual statements." Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. 08 5007926, (February 20, 2009, Tanzer, J.). The complaint does not make clear whether the alleged defamatory statements in question were based on known or previously stated facts. Based on the facts alleged in the complaint, and read in a light most favorable to the plaintiffs, it is not apparent that the alleged defamatory statements are merely opinion. The complaint, therefore, contains factual allegations, that if provable, would support a cause of action for defamation.
The defendants argue that even if the defamation counts are not stricken for being mere opinion, the court should strike the defamation counts because the defendants' statements are protected by a qualified privilege to make otherwise defamatory statements in the course of fulfilling a private contractual duty. "A qualified or conditional privilege arises out of an `occasion,' such as, when one acts in the bona fide discharge of a public or private duty . . . Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant . . . It is for the court to determine, as a matter of law, whether the defendant made the defamatory statements while acting on an occasion of privilege, as in the bona fide discharge of a public or private duty . . . It is a question of fact for a court or a jury, however, to determine whether the defendant has abused a conditional privilege . . . A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith . . . Therefore, a conditional privilege may be recognized only where the statement is made in good faith, without malice, in an honest belief in the truth of the statement, and in discharge of a public or private duty." (Citations omitted.) Miles v. Perry, 11 Conn.App. 584, 594 n. 8, 529 A.2d 199 (1987). "[T]he privilege does not protect a defendant who makes statements that are both defamatory and malicious." Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545, 733 A.2d 197 (1999). "[M]alice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive." Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985). "[A] qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive." (Emphasis in original.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 630, 969 A.2d 736 (2009).
We need not address whether defamatory statements made by an independent insurance investigator in a report to their employer are protected by a qualified or conditional privilege if the plaintiffs have alleged sufficient facts that, if provable, would show that such a privilege does not apply because the defendants' alleged defamatory statements were made with malicious intent. In the present case, the complaint alleges that the defendants, as the agents of Allstate, failed to conduct an adequate investigation into the cause of the freeze loss and filed the reports containing the alleged defamatory statements in order to assist Allstate in coming to their pre-determined decision to deny the plaintiffs' claim. This conduct, if proven, would constitute the making of defamatory statements with bad faith or improper motive and would therefore be considered malicious. The complaint, therefore, alleges sufficient facts that, if provable, would establish that defamatory statements in the defendants' report were made with an improper or unjustifiable motive and would therefore be malicious and not protected by a conditional or qualified privilege. Although the defendants may ultimately prove that their statements were not made with malicious intent and were protected by a qualified privilege, the plaintiffs have alleged sufficient facts to state a cause of action for defamation. Therefore, counts eight and eleven are not stricken because the complaint alleges facts that, if provable, are sufficient to establish that the alleged defamatory statement are not protected as mere opinion and that the defendants made the statements with malicious intent, and therefore the plaintiffs have alleged facts sufficient to state a cause of action for defamation.
The court grants the motion to strike counts six, seven, nine and ten because the plaintiffs have failed to present facts in the complaint upon which causes of action for negligence and breach of contract may be granted. The court denies the motion to strike counts eight and eleven because the plaintiffs have presented facts, which if provable, would support a cause of action for defamation.