Opinion
No. CV 02 0468089
April 29, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE #100
On August 20, 2002, the plaintiffs, Joseph Izzo and Laurie Nuzzo, filed a four-count complaint against the defendants, Leon Kruk and AIU Insurance Company. In counts one and two of the complaint, Izzo and Nuzzo, respectively, allege that Kruk operated his vehicle negligently and collided with Izzo's vehicle, causing injuries to Izzo and his passenger, Nuzzo. In counts three and four of the complaint, Izzo and Nuzzo, respectively, allege that AIU was Kruk's insurance carrier, which had agreed to provide Kruk with liability insurance benefits. They also allege that AIU violated General Statutes § 38a-816 (6), the Connecticut Unfair Insurance Practices Act (CUIPA), and General Statutes § 42-110 (a), the Connecticut Unfair Trade Practices Act (CUTPA), by failing to make an offer to settle their claims.
On September 11, 2002, AIU filed a motion to strike counts three and four of the complaint and the corresponding claims for relief, on the ground that Izzo and Nuzzo fail to state a legally sufficient cause of action pursuant to CUIPA or CUTPA. In support, AIU contends that an alleged mishandling of a single insurance claim cannot support a CUIPA claim, or a CUTPA claim predicated on CUIPA. In addition, AIU argues that the claims of negligence against Kruk are misjoined with the CUIPA and CUTPA claims against AIU.
Izzo and Nuzzo counter that the CUIPA and CUTPA claims against AIU are legally sufficient because, by alleging misconduct with respect to two claims rather than one claim, they have satisfied the "general business practices" requirement of the statute. They also argue that there is a split of authority with regard to whether joinder of claims for insurance misconduct and the underlying negligence is appropriate. They also argue that because both claims derive from the same factual transaction, the claims are properly joined.
DISCUSSION CT Page 5901
The court need not address the issue of whether the allegations of this complaint rise to the level of the "general business practice" required to support CUIPA and CUTPA claims because the court must first address the threshold issue of whether, under CUIPA, non-insured third parties may allege a cause of action against another's insurer based upon alleged unfair settlement practices. See D'Alessandro v. Clare, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 97 0084006 (April 1, 1999, Schuman, J.) ( 24 Conn.L.Rptr. 325, 326). Neither our Supreme Court nor our Appellate Court has resolved this issue, although a majority of the judges of the Superior Court have disavowed the existence of such a duty, particularly when judgment has not yet been rendered against the insured. See id.; see also, Chieffo v. Yannielli, Superior Court, judicial district of Waterbury, Docket No. CV 00 0159940 (July 10, 2001, Doherty, J.), and cases cited therein.
"[U]nfair claims settlement practices have been held to be actionable for insureds only, not for third-party claimants." Peterson v. Allstate Ins. Co., Superior Court, judicial district of Hartford Docket No. CV 909387142 (September 17, 1992, Hennessey, J.) ( 7 Conn.L.Rptr. 376, 378). As one Superior Court decision determined, another's insurer has "no duty under CUIPA to the [injured third party], at least prior to entry of a judgment against the insured." D'Alessandro v. Clare, supra, 24 Conn.L.Rptr. 326. "[T]he trial courts have spoken with apparent unanimity" on this issue. Id.
The plaintiff in D'Alessandro v. Clare, supra, 24 Conn.L.Rptr. 325, like the plaintiffs in the present case, sued the tortfeasor defendant and the tortfeasor defendant's insurance company for unfair claim settlement practices under CUIPA and CUTPA. The defendant insurance company moved for summary judgment. Id., 326. The court granted the defendant insurance company's motion for summary judgment and reasoned that "[a]t common law, an insurer had no duty to settle a claim fairly with a third-party claimant. Instead, the insurance company had an obligation to defend its insured, which may involve contesting both liability and damages. The cause of action sought by the plaintiff would interfere with this obligation by creating a possibly conflicting duty to a third-party claimant." Id. The court further reasoned that "[a]n examination of the language of CUIPA reveals that it does not explicitly create a duty of an insurance company to a third-party claimant. CUIPA defines `[u]nfair claim settlement practices' in a way that refers to insureds, not third parties." Id.
In the present case Izzo and Nuzzo allege that AIU issued Kruk a contract for insurance and agreed to provide Kruk with comprehensive liability insurance benefits. AIU's duty under CUIPA, therefore, as alleged in the complaint, is to Kruk. Izzo and Nuzzo, however, are merely third-party claimants. Because insurance companies have "no duty under CUIPA to the [injured third-party], at least prior to entry of a judgment against the insured . . ."; D'Alessandro v. Clare, supra, 24 Conn.L.Rptr. 326; AIU had no duty to Izzo and Nuzzo with regard to CUIPA.
This court grants AIU's motion to strike the CUIPA claims of Izzo and Nuzzo and, therefore, is compelled to strike the CUTPA claims, as well. As the court emphasized in D'Alessandro v. Clare, supra, 24 Conn.L.Rptr. 326, our Supreme Court has implicitly held "that conduct that does not violate CUIPA does not constitute an unfair act or practice under CUTPA." Id., citing Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986). Accordingly, for the reasons set forth above, counts three and four of the complaint and the corresponding paragraphs in the prayer for relief, paragraphs two, three and four, are stricken.
Because the court is striking counts three and four on the basis that AIU owes no duty to Izzo or Nuzzo as non-insureds, it need not reach AIU's alternate ground regarding a misjoinder of claims.
Gilardi, J.