Opinion
No. CV07-5010093S
March 26, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS/STRIKE, #134 AND PLAINTIFF'S OPPOSITION, #146
On July 26, 2007, the plaintiffs, David Wilcox, Donna Wilcox and Shaun Wilcox, filed a revised complaint against the defendants, Webster Insurance Inc. (Webster) and Acadia Insurance Company (Acadia). The revised complaint alleges that the plaintiffs were owners and members of American Crushing Recycling, LLC (American), a limited liability company organized under the laws of the state of Connecticut; and that Webster is a licensed insurance producer under the laws of the state of Connecticut. According to the allegations in the complaint, in September 2004, David Wilcox contacted Webster to obtain a motor vehicle insurance policy for American and himself, with a policy period from September 2004 to September 2005. Webster produced such a policy from Acadia, which provided for one million dollars of coverage for any one accident or loss of liability and, in addition, the policy was subject to an umbrella policy for another two million dollars in the event of an accident. The policy covered "any auto," including all automobiles owned, leased or otherwise used by an American employee. David Wilcox was a named insured under the policy and Shaun Wilcox, though not a named insured, was an insured under the terms of the policy. There are factual disputes about whether and when the policy was in effect, but those facts are not dispositive of the pending motions.
On July 29, 2005, a dump truck owned by American and driven by someone other than either Wilcox was involved in an automobile accident in Avon, Connecticut. The plaintiffs requested that Acadia defend and indemnify them and American for any liability or costs associated with the accident. Acadia, however, failed to immediately defend or indemnify the plaintiffs. Acadia further delayed and insufficiently responded to the plaintiffs' requests for defense for all potential civil liabilities and the costs of legal defense associated therewith.
On August 30, 2007, Webster filed a motion to dismiss and strike (#134), along with an accompanying memorandum of law (#135). The motion to dismiss argues that the court lacks subject matter jurisdiction because the plaintiffs lack standing and their claims are nonjusticiable. Specifically, the motion seeks dismissal of David Wilcox's five causes of action against Webster: breach of contract (count three); negligent misrepresentation (count six); negligence (count eight); recklessness (count eleven); and violations of General Statutes § 38a-815 et seq. (CUIPA) and § 42-110b et seq. (CUTPA) (count thirteen). The motion also seeks dismissal of Shaun Wilcox's similar causes of action against Webster: breach of contract (count four); negligent misrepresentation (count seven); recklessness (count twelve); CUIPA/CUTPA (count fourteen); and negligence (count fifteen).
The motion to strike portion argues that certain claims asserted by the plaintiffs are legally insufficient. Specifically, the motion seeks to strike David Wilcox's causes of action against Webster: defamation per se (count sixteen); recklessness "II" (count eighteen); and negligent misrepresentation "II" (count twenty). The motion further seeks to strike Donna Wilcox's causes of action against Webster: defamation per se (count seventeen); recklessness (count nineteen); and negligent misrepresentation (count twenty-one).
In addition, in the event that the motion to dismiss is denied as to counts three, four, eleven, twelve, thirteen and fourteen, Webster alternatively seeks that they be stricken. On October 4, 2007, the plaintiffs filed a memorandum of law in opposition (#146) and on November 8, 2007, Webster filed a reply memorandum of law (#150). On December 3, 2007, the court heard oral argument.
I. Motion to Dismiss
The court will first address the motion to dismiss because it asserts that the court lacks subject matter jurisdiction. The court will then address the merits of the motion to strike. "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
"[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Citation omitted; internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211. "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). Finally, "[e]very presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue . . .
Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . .
Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.
(Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322 (2008).
"[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so." Ganim v. Smith and Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "Where . . . the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect and the plaintiff has no standing to assert them." Id., 347-48. Further, "[w]here a statute . . . sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case." (Internal quotation marks omitted.) Pinchbeck v. Dept of Public Health, 65 Conn.App. 201, 206, 782 A.2d 242 (2001). "[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn.App. 632, 638, 803 A.2d 402 (2002).
In its memorandum of law in support of its motion to dismiss, Webster argues that David Wilcox and Shaun Wilcox lack standing to bring the present suit because the actual loss was sustained by American, not the individual plaintiffs. Webster further argues that Shaun Wilcox's claims are nonjusticiable because no claims have been made against Shaun Wilcox individually and he has not, therefore, sustained any specific individual loss. Rather, Webster argues that he was only injured because he was a member or shareholder of American. Webster finally argues that, while some individual claims have been filed against David Wilcox, his only injury would be as a member or shareholder of American and, therefore, like Shaun Wilcox, his claims are nonjusticiable because he has not suffered any individual loss.
In response, David Wilcox and Shaun Wilcox argue that they have standing to bring this action in their individual capacities as insureds under the policy. David Wilcox argues that "he is specifically named in [the policy] as a named insured, exhibiting specific, personal and legal interest in [the policy]." Shaun Wilcox argues he is covered under the policy because it provides that members of a limited liability company are insured and also that he is an intended third-party beneficiary.
The Connecticut Limited Liability Company Act is codified in General Statutes §§ 34-100 through 34-242. General Statutes § 34-124(b) provides in relevant part: "A limited liability company shall have power to and may sue and be sued . . ." General Statutes § 34-186 provides in relevant part: "Suits may be brought by . . . a limited liability company in its own name." General Statutes § 34-134 provides in relevant part: "A member or manager of a limited liability company is not a proper party to a proceeding by . . . a limited liability company solely by reason of being a member or manager of the limited liability company . . ."
David Wilcox and Shaun Wilcox cannot establish standing to bring these causes of action because any harm that they suffered, which is redressable through the policy, may be traced directly to their shareholder or membership interests in American. The relevant statutes that govern the operation and function of limited liability companies do not allow shareholders or members to sue in their individual names to enforce the rights of the limited liability company. Therefore, as David Wilcox and Shaun Wilcox are shareholders or members of American, a limited liability company, neither may bring suit on its behalf. See General Statutes § 34-134. The General Assembly has empowered limited liability companies, such as American, to directly "sue and be sued." See General Statutes § 34-124(b).
Moreover, American owned the dump truck that was involved in the accident and, therefore, American is the proper party to sue for indemnification, coverage or other remedies under the policy. David Wilcox and Shaun Wilcox did not own the dump truck and, therefore, cannot sue to enforce the policy that allegedly insured it. See Zipp v. Florian, Superior Court, judicial district of New Britain, Housing Session, Docket No. CVN 03 101980 (November 13, 2006, Bentivegna, J.). In Zipp, the court granted the defendant's motion to dismiss for lack of standing because the plaintiff, a member of an LLC, sued in his own name to recover after a fire destroyed a building, which was owned by the LLC. The court held that "[a] lawsuit relating to the damages caused by the fire must be brought in the name of the owner of the property [the limited liability company]. See General Statutes §§ 34-186 and 34-142 . . . [T]he limited liability company was the proper party to bring suit because it suffered the actual harm. When the suit was filed by [the individual member], he was not the proper party to bring suit because he had previously transferred his ownership interest to the limited liability corporation. [He] is not a proper party to bring a lawsuit solely by reason of being a member/manager of the limited liability company. See General Statutes § 34-134. The plaintiff has not satisfied the statutory criteria for standing." Id. See also Elecor, LLC v. King, Superior Court, judicial district of New Haven, Docket No. CV 06 5006235 (December 5, 2007, Bellis, J.) (The court granted the defendants' motion to dismiss certain causes of action asserted by the individual plaintiff for lack of standing because her claims were related solely to her alleged ownership interest in the limited liability company plaintiff.)
Webster's motion to dismiss counts three, four, six, seven, eight, eleven, twelve, thirteen, fourteen and fifteen is granted because the individual plaintiffs lack standing to bring this action.
II. Motion to Strike
"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." 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 . . . 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).
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
A. Counts Sixteen and Seventeen: Defamation Per Se
Webster argues that David Wilcox and Donna Wilcox have "only provided a glib discussion of the allegedly defamatory statements" and that they "failed to provide: 1) the date(s) when the allegedly defamatory statements took place; 2) the specific statements made; 3) the forum where the statements were made; 4) the individuals or government bodies that the statements were made to; and, 5) the name of the individual(s) that made the alleged defamatory statements." Memorandum of Law In Support of Motion to Dismiss and Motion to Strike, dated August 30, 2007, pp. 19-20. In response, David Wilcox and Donna Wilcox argue that they have sufficiently alleged the necessary elements of defamation per se.
"Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him . . . Slander is oral defamation." [(Internal quotation marks omitted.)] Lowe v. Shelton, 83 Conn.App. 750, 765, 851 A.2d 1183 (2004). "To establish a prima facie case of defamation, the plaintiff must demonstrate that: (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." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
"Because of the causal way in which slander is uttered, an injured party must allege and prove his actual special damages unless he can show that the slander occurred in one of the . . . categories of slander per se. D. Wright J. Fitzgerald, Connecticut Law of Torts. (2d Ed. 1968) § 147; see also Moriarity v. Lippe, 162 Conn. 371, 382-83, 294 A.2d 326 (1972); Zeller v. Mark, 14 Conn.App. 651, 654, 542 A.2d 752 (1988)." Wagner v. Feldstein, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 054003 866 (February 7, 2006, Ronan, J.T.R.).
Cavallaro v. Rosado, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 05 4009939 (October 5, 2006, Robinson, A., J.).
"This court has delineated specific categories of speech deemed actionable per se where the defamatory meaning [of the speech] is apparent on the face of the statement." Integrated Sec. Solu. v. Sec. Tech. Sys., Superior Court, judicial district of New London at New London, Docket No. CV 4001811 (September 11, 2007, Hurley, J.T.R.). "Where the utterance charges a crime" the statement may be deemed slander per se. Cavallaro v. Rosado, supra, Docket No. CV 05 4009939. "Spoken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity . . ." Lattanzio v. WVIT, Superior Court, judicial district of New London at New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.).
Neither side addresses which category of defamation per se is applicable to this case. Nonetheless, the court finds the counts to be insufficient because they fail to provide other, requisite information. "When claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to the plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made." (Internal quotation marks omitted.) Buguruka Orphans v. Cote, Superior Court, judicial district of Tolland, Docket No. CV 07 5001261 (July, 10, 2007, Vacchelli, J.). "[A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom." Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 980486246 (July 12, 2002, Berger, J.), aff'd, CT Page 5358 76 Conn.App. 907, 822 A.2d 372 (2003).
In counts sixteen and seventeen, David Wilcox and Donna Wilcox allege that "[i]n speaking with members of Connecticut state and local law enforcement agencies regarding the insurance policy, the employees of . . . Webster . . . made defamatory statements about [David Wilcox and Donna Wilcox] concerning the insurance policy that placed [them] at risk of criminal prosecution, including: a. a misrepresentation that . . . [they] (rather than an employee of Webster . . .) requested that the liability and umbrella coverage be reinstated retroactively from July 29, 2005; b. a misrepresentation that Webster . . . and its employees were unaware of the July 29, 2005 accident prior to [David Wilcox and Donna Wilcox] submitting a request for reinstatement of the insurance policy to Acadia . . .; and c. a misrepresentation that the certificates of liability insurance produced by [Webster] prior to July 29, 2005 could not indicate that the insurance coverage only applied to certain vehicles, not including the [dump truck] when, in fact, certificates of liability insurance issued subsequent to that accident indicate that the automobile liability coverage applies only to `Scheduled Autos' rather than `Any Auto.'"
David Wilcox and Donna Wilcox also allege that "[t]he defamatory statements made by the employees of . . . Webster . . . resulted in criminal prosecutions against [them] for alleged violations of the Connecticut General Statutes for crimes of moral turpitude" and that "[a]s a consequence, these statements constituted defamation per se." Further, David Wilcox and Donna Wilcox allege that they "experienced significant unwarranted negative publicity and loss of reputation as a consequence of [Webster's] statements and the resulting criminal prosecutions against [them]." Finally, they allege they suffered damages.
Even assuming that the alleged statements are defamatory on their face, these allegations do not sufficiently state a cause of action for defamation for three reasons. First, while the general subject of the three particular "misrepresentations" are summarized, the actual statements alleged to have been made are not provided. While this court does not agree with the reasoning of some trial courts, that exact quotes or close to exact quotes must be provided in order to state a claim for defamation, more specific information about the alleged statements must be provided. Second, David Wilcox and Donna Wilcox claim that these allegedly defamatory misrepresentations were made by "employees of Webster" to Connecticut state and local law enforcement agencies, with no further identifying criteria alleged. These allegations are not concrete and sufficient enough to withstand a motion to strike. Third, the allegations are devoid of any indication of a time and place when and where the misrepresentations were made. While one can safely conclude that the statements were made after the July 29, 2005 accident, it is impossible to ascertain, more precisely, when in time the alleged misrepresentations were uttered. This, too, is insufficient when challenged by a motion to strike.
It is true, as the plaintiffs argue, that this court (Zoarksi, J.T.R.) denied the defendants' request to revise these counts. However, in order to sufficiently allege a cause of action for defamation per se, the plaintiffs must provide sufficient information to the parties and the court as to the specific and general information pertaining to their claims. They have failed to do so in this case. As the trial court noted in Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Docket No. X04 CV 020097138 (December 16, 2005, Beach, J.) [40 Conn. L. Rptr. 565], "[i]n order to respond to a claim of defamation, a defendant has to know something about the nature of the statements allegedly made. Notice of course, is an issue; perhaps equally persuasive is the need to frame pleadings appropriately. There are a number of special defenses, for example, that may or may not be appropriate, depending on the nature of the statements alleged to have been made. Among other considerations, the plaintiff may need to prepare responses to defenses. Though there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity."
Plaintiffs' complaint lacks the requisite specificity to support their defamation claims. Therefore, counts sixteen and seventeen are stricken.
B. Counts Eighteen and Nineteen: Recklessness
In its motion to strike, Webster seems to argue that the recklessness counts should be treated as reckless misrepresentation causes of action and that because this cause of action requires reliance by a plaintiff upon a statement made by a defendant, which Webster argues is missing, these two counts should be stricken. In their memorandum of law in opposition, David Wilcox and Donna Wilcox argue that reliance is not a necessary element of recklessness. They state that these two counts "consist of allegations that [Webster's] misrepresentations, `were made with a willful and wanton disregard for the rights of [David Wilcox and Donna Wilcox] and in reckless disregard of the likely consequences to [David Wilcox and Donna Wilcox].'" Memorandum of Law in Support of Plaintiffs' Objection to Defendant's Motion to Dismiss and Motion to Strike, dated October 4, 2007, pp. 21-22. David Wilcox and Donna Wilcox further argue that they "simply [allege] that [Webster] acted recklessly in making certain misrepresentations to Connecticut state and local law enforcement agencies regarding the insurance policy." Id. at 22. Webster, in its reply memorandum of law, argues that David Wilcox and Donna Wilcox: "[P]urport to assert reckless conduct in making alleged false representations and nothing more. Under Connecticut law, a claim for reckless misrepresentation requires justifiable reliance by [David Wilcox and Donna Wilcox]" and that because this reliance element is absent, these claims should be stricken. Reply Brief in Further Support of Motion to Dismiss and Motion to Strike, dated November 8, 2007, p. 14. As the parties cannot agree on whether counts eighteen and nineteen allege recklessness or reckless misrepresentation, the court shall address both.
1. Recklessness
"To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, [the court] look[s] first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).
"While [courts] have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." Id. 342-43.
The language of counts eighteen and nineteen substantially mirrors the language in counts sixteen and seventeen, the defamation per se counts, with the exception that the plaintiffs allege that Webster employees' conduct is also "willful and wanton" and "in reckless disregard" of the consequences to David Wilcox and Donna Wilcox. No further factual allegations are made in the revised complaint that explain how the Webster employees' conduct was reckless when they spoke to various law enforcement personnel who were investigating David Wilcox and Donna Wilcox's behavior after the automobile accident. Alleging that conduct is "reckless" without providing further factual allegations explaining how such conduct is in fact reckless does not meet Connecticut's pleading requirements. See Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958).
2. Reckless Misrepresentation
"Traditionally, 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. Nazimi v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). A claim of . . . intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation to induce the other party to act upon it. [ Barbara Weisman, Trustee] v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Reckless misrepresentation requires [t]he intent to defraud. DeLuca v. C.W Blakeslee Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978)." (Internal quotation marks omitted.) Votre v. County Obstetrics, Superior Court, judicial district of New Haven, Docket No. CV 06 5005430 (May 24, 2007, Holden, J.).
Counts eighteen and nineteen contain no factual allegations that either David Wilcox or Donna Wilcox relied on any statement of Webster. Indeed, as stated above, the language of these counts nearly mirrors the language in counts sixteen and seventeen, the defamation per se counts, with the exception that the Webster employees' conduct is now described as "willful and wanton" and "in reckless disregard" of the consequences to either Wilcox.
Merely labeling a cause of action "reckless," as the plaintiffs have done, without factual support for that claim, is insufficient to state a cause of action for recklessness. And, the plaintiffs have failed to assert the necessary elements for a reckless misrepresentation claim because they have failed to allege that they relied upon the representations. Therefore, the motion to strike counts eighteen and nineteen is granted.
C. Counts Twenty and Twenty-One: Negligent Misrepresentation
Webster has moved to strike the two counts for negligent misrepresentation. David Wilcox and Donna Wilcox, in their objection to the motion to strike and the memorandum of law in opposition, did not brief the issue. "[T]he filing of a memorandum in opposition to a motion to strike is mandatory and the failure to file such may . . . serve as a ground for granting a motion to strike." (Internal quotation marks omitted.) Barbagallo v. Rob's Automotive, Superior Court, judicial district of New Britain, Docket No. CV 99 0494861 (December 3, 1999, Wollenberg, J.) [26 Conn. L. Rptr. 90]. Further, "[courts] are not required to review issues that have been improperly presented through an inadequate brief . . . Analysis . . . is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). The failure to brief the issue allows this court to grant the motion to strike counts twenty and twenty-one.
Even if David Wilcox and Donna Wilcox had properly objected, the court would still strike these counts because negligent misrepresentation requires a claim of justifiable reliance. See, Glazer v. Dress Barn, Inc., supra, 274 Conn. 72-73. The plaintiffs failed to brief their opposition to the motion to strike counts twenty and twenty-one; and counts twenty and twenty-one contain no allegations that either David Wilcox or Donna Wilcox justifiably relied on any information that Webster provided them. Therefore, the court grants the defendant's motion to strike counts twenty and twenty-one.