Opinion
No. X 09 CV 07 4027319
July 6, 2009
MEMORANDUM OF DECISION
White Oak Corporation (White Oak) has sued the insurance and financial services behemoth American International Group, Inc. and seven of its affiliates and subsidiaries (collectively, AIG), a New York law firm which represented AIG in connection with the events described in the complaint (the law firm) and two partners and one associate in that firm for damages arising out of the inability of White Oak to complete two state highway construction projects.
Other plaintiffs are several of White Oak's affiliates, its president, Roger L. Toffolon, and a trust in Mr. Toffolon's name, all of whom will be referred to collectively as White Oak.
The motion of AIG to strike four counts of the complaint raises several interesting legal questions: Is the surety on a state construction project an "indirect party" to the contract between its principal and the state so as to be immune from a claim that it tortiously interfered with the contract; if not, has White Oak pled facts showing that AIG induced the department to breach its contract with White Oak? Does the "continuing course of conduct" doctrine apply to extend the three-year statute of limitations on claims under the Connecticut Unfair Trade Practices Act (CUTPA); if so, does the complaint contain factual allegations indicating a continuing course of conduct on the part of AIG? Is the surety-principal relationship one that imposes fiduciary duties on the surety; if not, does White Oak allege facts that show, nevertheless, the existence of such a relationship? Does the ban on "intra-corporate conspiracies" apply to preclude prosecution of a civil conspiracy count against a corporation and its outside counsel?
The operative complaint, to which the motion to strike is addressed, is the Corrected Revised Complaint dated Nov. 26, 2008, which will be referred to throughout this decision simply as "the complaint" or "complaint."
I
This action arises out of the state's engagement of White Oak to complete two highway projects, one in New Haven beginning in 1994 and one in Bridgeport beginning in 1998. AIG provided White Oak with performance and payment bonds for the two projects, in favor of the state department of transportation (department). The gist of the complaint against AIG is that, when disputes arose between the department and White Oak over the latter's work on the projects, rather than protect the interests of its principal, White Oak, AIG cooperated with the department in easing White Oak off the projects in favor of a substitute contractor more acceptable to the department. AIG did so, White Oak alleges, in order to reduce its exposure on the bonds payable to the department and to remain in good standing with the department so that it could continue to engage in the surety bond business in Connecticut. In effect, AIG was acting to further its interests not those of White Oak even when those interests were in conflict with White Oak's interests.
Additional facts will be recited in connection with the specific claims to which they are relevant.
These allegations have given rise to counts against AIG alleging a breach of the covenant of good faith and fair dealing implied in its contracts with White Oak (first count), tortious interference in White Oak's contractual relationship with the department (second count), unfair trade practices (third count) breach of contract (fourth count), equitable estoppel (fifth count), breach of fiduciary duty (sixth count), conspiracy (eighth count) and waiver (ninth count). AIG's motion to strike is directed at the second, fourth, sixth and eighth counts.
Count ten seeks a declaratory judgment of the parties' rights and obligations under the contracts between them.
The motion also challenged the fifth count (equitable estoppel) and the ninth count (waiver), and those counts were stricken at oral argument of the motion on March 9, 2009, without objection by White Oak and without prejudice to the claims asserted therein being raised in defense of any counterclaim AIG may file.
II
Well-known canons govern the court's treatment of a motion to strike. The court must:
take the facts to be those alleged in the complaint . . . and construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, if facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, . . . what 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. (Citations omitted; internal quotation marks omitted.)
Violano v. Fernandez, 280 Conn. 310, 317-18 (2006).
Moreover, the court must apply settled law regarding the interpretation of pleadings:
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The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . ., the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. (Internal citations and quotations omitted.)
Emerick v. Kuhn, 52 Conn.App. 724, 738-39 (1999).
III
Count two alleges that AIG, "with knowledge of White Oak's contractual relationship with the [department], interfered with that relationship with the intent of advancing their own interests." Complaint, ¶ 150. As a result, "White Oak was deprived of an opportunity to complete the projects, and White Oak . . . [was], and [remains], exposed to substantial obligations under the terms of the [General Agreement of Indemnity (GAI) between White Oak, as principal, and AIG, as surety] and the July 1999 agreement [reaffirming and the GAI and adding to White Oak's obligations to AIG]." Id., ¶ 152. AIG moves to strike this count because (1) as White Oak's surety, it was an "indirect party" to the contracts between White Oak and the department and could not interfere with its own contracts, and (2) White Oak has pled no facts to show that it induced the department to breach its contracts with White Oak.
Count two alleges that all the defendants, including the law firm and its partners and associate, engaged in tortious interference with White Oak's contract with the department; only the motion to strike the count as it applies to AIG is before the court at this time.
AIG cites no Connecticut authority for the first proposition. It relies, instead, on two cases which hold that agents of one of the contracting parties cannot be liable for tortiously interfering with the contract. Multi-Services Contractors, Inc. v. Town of Vernon, 193 Conn. 446, 450-51 (1984) (members of the town's building committee cannot be liable for tortious interference with the town's contract); Wellington Systems Group, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168 (1998) (the principal shareholders and officers of a corporation cannot be liable for tortious interference with the corporation's contract). AIG does not claim to be an agent of White Oak, nor could it; so, this claim is rejected.
Consideration of AIG's second ground for striking this count requires a close reading of the complaint. Paraphrasing Collum v. Chapin, 40 Conn.App. 449, 452 (1996), it must allege "that [AIG's] tortious conduct caused the [department] to terminate its relationship with [White Oak]."
The complaint alleges a "de facto" termination of the contract by the department and its enlistment of AIG's "cooperation" in the termination. Complaint, ¶ 58. Further, it charges that AIG "acquiesced in the [department's] concerns and joined in its approach." Id., ¶ 59. The attorney for AIG "work[ed] out the terms of the plan to ease White Oak out of the picture" with the department's attorney. Id., ¶ 62. These claims might be read to allege a larger role on the part of AIG than that of an innocent bystander.
But, it is clear from other allegations that AIG did not cause or contribute to the department's dissatisfaction with White Oak's allegedly deficient performance, which is what led to the terminations; they merely reacted to it. The department began expressing its dissatisfaction with White Oak's performance on the New Haven contract as early as July 1998; Id., ¶ 32; and its complaints continued into 1999. Id., ¶ 33. AIG responded by advising White Oak that it expected White Oak to hold AIG harmless. Id., ¶ 34. "In response to" the state's demand for a remedial plan from White Oak in June 1999, AIG retained counsel; Id., ¶ 38; and a management consultant; Id., ¶ 40; and advanced funds to White Oak. Id., ¶ 42. While White Oak alleges that at this time AIG was looking to minimize its exposure on its outstanding bonds; Id., ¶ 44; and that, as part of its agreement to advance funds to White Oak, it extracted additional financial concessions from and took greater control over White Oak; Id., ¶ 46; nowhere does it allege that any of these actions caused the state to terminate White Oak's contracts. The complaint goes on to recite additional evidence of the department's dissatisfaction and AIG's efforts to salvage the contracts. Id., ¶¶ 48-50. The complaint alleges that the department, "for its part, had apparently already determined that its preferred result on the Bridgeport project was the replacement of White Oak with one of White Oak's subcontractors"; Id., ¶ 53; all that is alleged as to AIG is that it learned of this decision by the department and didn't tell White Oak about it. Id.
On December 16, 1999, the complaint alleges, the department threatened White Oak with annulment of the contracts unless it provided a remediation plan. Id., ¶ 52. In early January 2000 White Oak provided such a plan, which the department found unacceptable, and " [the department] refused to withdraw the annulment letter, [and] stated that it intended to assess liquidated damages . . ." Id., 56. A representative of the department then told counsel for AIG that "White Oak was `out.'" Id., ¶ 57.
Subsequent allegations recite threats allegedly made by representatives of the department to AIG about its continued ability to write construction bonds in Connecticut; Id.; and AIG's responses to those alleged threats. Id., ¶¶ 58-60; 62-64. They do not allege any AIG role in the decisions already made by the department to terminate White Oak's contracts.
Even when read in a light most favorable to White Oak, the allegations of the complaint do not state a claim that AIG caused the department to terminate its contracts. On the contrary, it is clear from the complaint that the decision to terminate was the department's, and it came to that decision without any input from White Oak. At most, the complaint alleges actions on AIG's part to protect itself from the fallout from the department's decision. Therefore, White Oak has failed to state a claim for tortious interference on the part of AIG.
IV
Count three of the complaint, after incorporating all prior allegations as to the conduct of AIG and the other defendants, alleges that their "conduct as described herein constitutes unfair or deceptive acts or practices in violation of Conn. General Statutes § 42-110(b) (sic)," the Connecticut Unfair Trade Practices Act (CUTPA). In determining whether conduct is "unfair" under CUTPA the court must consider "(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, 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; [or] (3) whether it causes substantial injury to consumers, competitors or other businessmen." (Internal parentheses, quotation marks and citations omitted.) Cheshire Mtge. Service, Inc. v. Montes, 223 Conn. 80, 105-06 (1992).
This count is directed at all defendants except George Rettig, a claims examiner for AIG and, later, an associate at the law firm.
The complaint alleges that the defendants' conduct was "unfair or deceptive." "Deceptive" conduct under CUTPA has been defined to include only conduct that is directed at and affects consumers; see, e.g., Caldor, Inc. v. Heslin, 215 Conn. 590, 597 (1990); and there are no such allegations here.
AIG's motion to strike is based on its claim that the only conceivably "unfair" acts alleged in the complaint occurred more than three years before the commencement of the action; therefore, the count is barred by CUTPA's three-year statute of limitations. Conn. General Statutes § 42-110g(f). White Oak responds that a continuing course of conduct on the part of AIG tolled the running of the statute of limitations and saves the action. Resolution of these competing claims requires the court to consider two preliminary issues.
First, this court agrees with AIG that the claim that a CUTPA action is barred by the statute of limitations may be raised by a motion to strike. This is because a CUTPA cause of action is a statutory cause of action that did not exist at common law; Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159 (1994); and the statute of limitations is "a limitation on the liability, itself, and not of the remedy alone." Avon Meadow Condominium Ass'n., Inc. v. Bank Boston Conn., 50 Conn.App. 688, 700 (1998). Therefore, CUTPA cases fall within the second exception to the rule that a statute of limitations claim must be pleaded as a special defense, not raised by a motion to strike; viz., "where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced . . ." Forbes v. Ballaro, 31 Conn.App. 235, 239-40 (1993).
But, the court rejects AIG's contention that the continuing course of conduct doctrine does not apply to CUTPA actions. The decisions in Bellemare v. Wachovia Mtge. Corp., 94 Conn.App. 593, 607-09 (2006), and Fichera v. Mine Hill Corp., 207 Conn. 204, 209-13 (1988), make this clear. If the continuing course of conduct doctrine did not apply to CUTPA actions, these cases would have said as much. Instead, each one engaged in a lengthy exegesis of how the elements of the doctrine were not satisfied on the facts and circumstances of that case.
Because the effect of the statute of limitations on a CUTPA claim can be raised by a motion to strike, where a plaintiff is relying on a continuing course of conduct to toll the statute of limitations, the facts necessary to establish that claim should be alleged in the complaint. So, the question is whether White Oak has alleged in the complaint facts indicating the presence of a continuing course of conduct on the part of AIG, as that doctrine has been developed by the Supreme and Appellate Courts, that would toll the running of the statute.
"The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." Blanchette v. Barrett, 229 Conn. 256, 276 (1994). "[W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . ." Bellemare v. Wachovia Mtge. Corp., supra, 94 Conn.App. 608. "To support a finding of a `continuing course of conduct' that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have termination to commencement of the period allowed for bringing an action for such wrong." Fichera v. Mine Hill Corp., supra, 207 Conn. 209. So, there must have been a breach of a duty owed by AIG to White Oak, and that duty must have continued to exist after commission of the breach and into the period which White Oak had to bring its action. The courts have developed a test for determining whether such a duty existed: "Where we have upheld a finding that a duty continued to exist after the cessation of the `act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." Id., 210.
But, the existence of an initial breach of a duty and the continued existence of that duty into the period of limitations is not sufficient to satisfy the continuing course of conduct doctrine. "In deciding whether the trial court properly granted the defendant's motion for summary judgment, we must determine whether there is a genuine issue of material fact with respect to whether the defendant (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." (Emphasis added.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370 (2000).
In a case like this, where the court is considering a motion to strike not a motion for summary judgment, the question is not whether there is a genuine issue of material fact as to each of these three elements of a continuing course of conduct claim, but whether the complaint alleges facts supporting each of those elements.
Here the action was commenced on December 14, 2006, when the complaint was served on the defendants. Hence, unless the continuing course of conduct doctrine is operative, allegedly unfair acts of AIG prior to December 14, 2003 would be barred by the three-year statute of limitations. Those acts, however, will not be barred if (1) they breached a duty of AIG to White Oak, (2) that duty continued to exist after December 14, 2003 and (3) AIG committed additional violations of that duty between that date and the commencement of the action.
"(A) precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff." (Internal citations omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 14 (2009). AIG had a duty under CUTPA not to engage in unfair, i.e., oppressive or unscrupulous, acts or practices vis-a-vis White Oak. Furthermore, the complaint alleges sufficient facts to establish that AIG created a "special relationship," indeed, a fiduciary relationship; see part V, infra; with White Oak on or about July 9, 1999, when it required White Oak to enter into an agreement effectively ceding control over White Oak's operations on the New Haven and Bridgeport contracts to AIG in return for AIG's promise of financial and other assistance. Complaint, ¶ 46. This agreement and the surrounding circumstances, as alleged in the complaint, demonstrate a "special relationship," i.e., one characterized by dominance on the part of AIG and dependence on the part of White Oak. Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38 (2002).
White Oak summarizes AIG's alleged breaches of its statutory and fiduciary duties; Complaint, ¶ 145; and details them elsewhere in the complaint. See, e.g., ¶¶ 50-51, 53, 59-62, 64-67, 69-73. The court believes that the conduct alleged could be found by a jury to fit within CUTPA's prohibition of "oppressive" or "unscrupulous" acts or practices; likewise, a jury could find that these actions constituted a breach of AIG's fiduciary duty.
AIG is correct, however, that all of these alleged acts occurred prior to December 14, 2003. AIG's duties under CUTPA and its fiduciary duty continued beyond December 14, 2003; the remaining question, then, is, Has White Oak alleged continuing breaches of those duties within the December 2003 — December 2006 period?
The complaint alleges that AIG concealed from White Oak until 2005 the existence of a meeting in February or March 2000 at which the department allegedly expressed to AIG representatives its determination that White Oak be removed as general contractor on both projects. Id., ¶ 62. In addition, AIG, through its agent, the law firm, allegedly attempted to induce White Oak to waive "going forward" any conflicts of interest arising out of the law firm's prior joint representation of AIG and White Oak; Id., ¶ 126; and, even though that attempt was unsuccessful, continued to have that firm represent AIG in its negotiations with White Oak. Id., ¶¶ 127-29. Finally, as of October 2005 AIG allegedly cut off funding for White Oak's continued prosecution of its claims against the department, leaving White Oak to fund and pursue those claims on its own. Id., ¶ 132. The court finds that these allegations also could form the basis for a jury finding of conduct prescribed by CUTPA and AIG's fiduciary duty and satisfy the requirement that there be continuing violations of AIG's duties within the limitations period.
This situation seems to the court just the kind of "evolving" situation to which the continuing course of conduct doctrine is to be applied. Sanborn v. Greenwald, 39 Conn.App. 289, 298 (1995). "When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks and citations omitted.) Blinkoiff v. O G Industries, Inc., supra, 113 Conn.App. 13. Since the course of conduct alleged on the part of AIG continued at least into 2005, the court finds that the doctrine saves this case from the effects of the three-year statute of limitations.
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V
Count six of the complaint, after incorporating all previous allegations as to AIG's conduct, claims that, beginning in 1999 and continuing through 2005, AIG "acted so as to assert domination and control of White Oak and its affairs," giving rise to a fiduciary duty on its part. Complaint, ¶¶ 165-66. It breached that duty, the complaint alleges, by "acting to protect its own interests, at the expense of White Oak." Id., 167.The court agrees with AIG that the relationship of principal and surety, by itself, does not give rise to a fiduciary duty on the part of the latter for the benefit of the former. See, e.g., National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 207 (2d Cir. 1989). The principal-surety relationship arises out of a strictly commercial transaction, in which the principal pays the surety a fee for the insurance service the surety provides. "(W)e have recognized that not all business relationships implicate the duty of a fiduciary." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38 (2000).
"Nevertheless, the Connecticut Supreme Court has purposefully left open the definition of a fiduciary, refusing to define `a fiduciary relationship in precise detail and in such a manner as to exclude new situations' ." Travelers Property Cas. Ins. Co. v. Triton Marine Const. Co., 473 F.Sup.2d 321, 332 (D.Conn. 2007). AIG claims Travelers v. Triton should be dispositive of White Oak's fiduciary relationship claim, but the court sees the two cases as quite different. After holding that a fiduciary relationship did not exist simply by virtue of the parties' principal-surety relationship; Id.; the court there examined the entire relationship between them and concluded that Triton's mere "understanding" that Travelers would pursue with the Corps of Engineers a "re-work" claim on a dam project Triton had performed was "wholly insufficient to create a fiduciary relationship between the surety and its principal." Id., 332-33. Here White Oak alleges much more in the way of dominion and control. But, before reciting those claims, a review of the established law concerning what constitutes a fiduciary relationship is in order.
"(A) fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another . . . In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 38-39. "The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Dunham v. Dunham, 204 Conn. 303, 322 (1987).
The allegations of the complaint are not sufficient to establish that AIG "was under a specific duty to act for the benefit of another . . ." Rather, the question is whether they establish not an arm's length business relationship but one in which AIG was in a dominant position, creating dependency on the part of White Oak.
White Oak alleges that in July 1999, at a time when White Oak was in financial distress; Complaint, ¶ 43; and under continuous pressure from the department concerning its performance on both projects; e.g., Id., 37; AIG compelled it to enter into a funding agreement that, effectively, put AIG in control of White Oak's operations. Id., 46. The agreement required, among other things, that White Oak sign blank letters of default on both projects, put certain of its bank accounts under AIG's control, give AIG control over White Oak's "finances and receivables," liquidate collateral and "accept AIG as being in `joint control' of the prosecution, handling and settlement discussions in connection with contract claims on the New Haven project . . ." Id. In return White Oak relied on AIG to "work together with White Oak to meet [the department's] concerns, ultimately enabling White Oak to fulfill the contracts with the [department], pay back the advances from AIG, and obtain a release of the collateral to be pledged as security for the advances." Id., ¶ 47.
This agreement put AIG in a position of dominance and White Oak in a position of dependence on AIG for financial and other assistance not only in completing performance of the New Haven and Bridgeport projects but in negotiating and litigating with the department. They were no longer dealing at arm's length. AIG had created a "situation in which there [was] a justifiable trust confided on one side and a resulting superiority and influence on the other." Dunham v. Dunham, supra, 204 Conn. 320.
AIG seems to argue that the only time a fiduciary relationship can exist is when the dependent party voluntarily seeks or at least accepts that status. AIG Defendants' Reply to Plaintiffs' Opposition to Motion to strike, 7-8 (Mar. 6, 2009). It cites no authority for that proposition, and the court has found none.
White Oak goes on to allege the many ways in which it claims AIG acted to protect its own interests at the expense of White Oak. Complaint, ¶¶ 50-51, 53, 59-62, 64-67, 69-73. In summary, instead of helping White Oak meet the department's demands, AIG was cooperating with the department in easing White Oak off the projects in favor of another contractor. Id., ¶¶ 50-51, 62-64. Moreover, it took control of negotiations with the department, excluding White Oak from them, concealing from White Oak material discussions with the department and, in place of White Oak's attorneys, substituting its own attorneys, who allegedly prosecuted the claims against the department in ways calculated to advantage AIG and disadvantage White Oak. Id., ¶ 145.
The allegations of the complaint are sufficient to state a cause of action for breach of fiduciary duty on the part of AIG.
VI
Count eight alleges a civil conspiracy among all the defendants, i.e., AIG and their attorneys, to "advance their own interest at the expense of the interests of White Oak . . ." Complaint, ¶ 172. AIG moves to strike, invoking the intracorporate conspiracy doctrine.
AIG consists of American International Group, Inc. and other corporate entities which are described as "under the common ownership and/or control of AIG"; Id., ¶ 24; or, in the case of AIG Technical Services, Inc., as "a subsidiary of AIG which performs claims management services on behalf of AIG and its affiliated companies." Id., ¶ 25. Therefore, the established rule that "wholly intracorporate conduct does not satisfy the plurality requirement necessary to establish an actionable conspiracy claim"; Harp v. King, 266 Conn. 747, 776 (2003); precludes this claim of civil conspiracy among AIG and these entities.
The first element of a civil action for conspiracy is a combination between two or more persons. Harp v. King, supra, 266 Conn. 779.
Nor can AIG have conspired with its attorneys to harm White Oak. Although White Oak is correct that appellate opinions in Connecticut applying the intracorporate conspiracy doctrine have directly addressed only its application to bar claims of conspiracy between a corporation and its employees; see Harp v. King, supra; Day v. General Electric Credit Corp., 15 Conn.App. 677 (1988); those cases recognize that the doctrine is founded upon agency law. "A basic principle of agency is that a corporation can act only through the authorized acts of its corporate directors, officers, and other employees and agents. Thus, the acts of the corporation's agents are attributed to the corporation itself." (Internal quotation marks and citations omitted.) Harp v. King, supra, 266 Conn. 776. See also Day v. General Electric Credit Corp., supra, 15 Conn.App. 684.
That a corporation's attorneys are its agents cannot be disputed. Generally, an attorney is defined as "one who is designated to transact business for another; a legal agent." Black's Law Dictionary (7th Ed. 1999). Accord, Jones v. Ippoliti, 52 Conn.App. 199, 210 (1999). That an attorney for a corporation occupies the same agency status as does an attorney for an individual is clear from the cases enforcing the attorney-client privilege for the benefit of a corporation and its employees. See, e.g., Shew v. Freedom of Information Comm., 245 Conn. 149, 158-59 (1998). One Connecticut trial court has explicitly applied the intracorporate conspiracy doctrine to bar a claim of conspiracy between an attorney and his client; Negro v. Hirsch, Superior Court, judicial district of Tolland, Docket No. CV 03 0083003, 2004 Ct. Super. 12930 (Aug. 31, 2004) [ 37 Conn. L. Rptr. 769]; and White Oak has cited no cases to the contrary. Paraphrasing that court, this court finds that "the principal here, [AIG], and the agent, [the defendant law firm and its partners and associate], are deemed by law to be one person and, therefore, cannot satisfy the first element of civil conspiracy which requires the combination of two or more persons." Id., 12932.
There is an exception to the intracorporate conspiracy doctrine which comes into play when the corporate agent or employee is not acting within the scope of his employment or has an independent personal stake in achieving the corporation's illegal objective. Harp v. King, supra, 266 Conn. 777. See Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0479556, 2004 Ct.Super. 4838, 4845 (Mar. 31, 2004) (plaintiff defeated a motion to strike because of his allegation that "defendant Pontolillo in effect abandoned his role as attorney for the [housing authority] and took significant personal control over the operation of the [housing authority] for the purpose of getting rid of the plaintiff and protecting his personal interests"). White Oak makes no such claim here, and the court can find in the complaint no such allegations.
Count eight cannot stand in view of the intracorporate conspiracy doctrine.
VII
For the reasons set out in this memorandum of decision the motion to strike is GRANTED as to counts two and eight and DENIED as to counts three and six.