Opinion
CV176071117S
12-26-2018
Joyce STREETER v. LIBERTY MUTUAL FIRE INSURANCE COMPANY
UNPUBLISHED OPINION
OPINION
Sybil V. Richards, Judge
Before the court is the defendant insurance company’s motion to strike counts two (breach of the implied covenant of good faith and fair dealing), three (breach of the Connecticut Unfair Insurance Practices Act, "CUIPA," General Statutes § 38a-815 et seq.) and four (breach of the Connecticut Unfair Trade Practices Act "CUTPA," General Statutes § 42-110a et seq.). The underlying litigation involves an action to recover insurance proceeds under a homeowner’s insurance policy issued by the defendant to the plaintiff. In her revised, four-count breach of contract complaint, the plaintiff alleges that she sustained personal property damage as a result of a leak from her furnace that occurred on June 14, 2016. The defendant, in its motion, moves to strike counts two, three and four of said complaint on the grounds that they are legally insufficient.
I. Discussion
"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 ... A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... We take the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
"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 necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 299-300, 819 A.2d 289 (2003). "The role of the trial court [when ruling on a motion to strike is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
A. Breach of the Covenant of Good Faith and Fair Dealing
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). "Designed to fulfill the reasonable expectations of the contracting parties as they presumably intended, the covenant requires that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Cornerstone Realty, Inc. v. Dresser-Rand Co., 993 F.Supp. 107, 110 (D.Conn. 1997) (citing Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 200, 663 A.2d 1001 (1995)). "To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff’s right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ... Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn.App. 44, 51, 19 A.3d 215 (2011). It is also the law, however, that "there is no breach of an implied covenant of good faith where a party to a contract has done what provisions of the contract expressly gave him the right to do." Adams v. G.J. Creel and Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84 (S.C. 1995).
The doctrine of the implied covenant of good faith and fair dealing in insurance contracts has been recognized by our Supreme Court. See, e.g., Buckman v. People Express, Inc., 205 Conn. 166, 170, 503 A.2d 596 (1987); Hoyt v. Factory Mutual Liability Ins. Co., 120 Conn. 156, 159, 179 A. 842 (1935).
This court disagrees with the defendant that count two fails to allege facts sufficient to show that the defendant has breached the implied covenant of good faith and fair dealing. In her revised complaint, the plaintiff has claimed that there has been more than a mere disagreement between herself and the defendant. The court agrees, rather, with the plaintiff’s interpretation, in her brief, relating to certain descriptions of paragraphs in her revised complaint in which she sufficiently alleges, inter alia, that the defendant acted in bad faith by providing false and misleading information when its agent informed the plaintiff that it was merging the instant claim with a prior 2014 claim which the agent knew was impermissible. The court concludes that the plaintiff sufficiently states a claim for bad faith in connection with count two of her revised complaint.
B/C. Violations of CUTPA/and the Connecticut Unfair Insurance Practices Act
"CUTPA is, on its face, a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... [CUTPA] provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages ... and attorneys fees and costs, and, in addition to damages or in lieu of damages, injunctive or other equitable relief ... To give effect to its provisions, [General Statutes] § 42-110g(a) of [CUTPA] establishes a private cause of action, available to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by [General Statutes §] 42-110b ..." (Citations omitted; footnote omitted; internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712-13, 66 A.3d 860 (2013). CUIPA, which specifically prohibits unfair business practices in the insurance industry and defines what constitutes such practices in that industry; see General Statutes § 38a-816; does not authorize a private right of action but, instead, empowers the commissioner to enforce its provisions through administrative action. See General Statutes §§ 38a-817 and 38a-818. "In Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986), [however] this court determined that individuals may bring an action under CUTPA for violations of CUIPA. In order to sustain a CUIPA cause of action under CUTPA, a plaintiff must allege conduct that is proscribed by CUIPA." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 625, 910 A.2d 209 (2006). Thus, under Mead, "if a plaintiff brings a claim pursuant to CUIPA alleging an unfair insurance practice, and the plaintiff further claims that the CUIPA violation constituted a CUTPA violation, the failure of the CUIPA claim is fatal to the CUTPA claim." State v. Acordia, Inc., supra, 310 Conn. at 31, 73 A.3d 711.
In Acordia, after observing that Mead had "strongly suggested" but not expressly resolved whether the "legislative determinations as to unfair insurance practices embodied in CUIPA are the exclusive and comprehensive source of public policy in this area"; id., at 35, 509 A.2d 11; we concluded that, as a general rule, a plaintiff cannot bring a CUTPA claim alleging an unfair insurance practice unless the practice violates CUIPA. Id., at 31, 35-37, 509 A.2d 11. "Because CUIPA provides the exclusive and comprehensive source of public policy with respect to general insurance practices, we conclude[d] that, unless an insurance related practice violates CUIPA or, arguably, some other statute regulating a specific type of insurance related conduct, it cannot be found to violate any public policy and, therefore, it cannot be found to violate CUTPA." Id., at 37, 509 A.2d 11.
CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). "It is well settled that in determining whether a practice violates CUTPA, [our Supreme Court] has adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise-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; and (3) whether it causes substantial injury to consumers, [competitors or other business persons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).
In Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), the Supreme Court held that CUTPA applied to insurance practices, but also held that more than a single act of misconduct must be alleged in order to state a CUTPA claim. Id., 659. "[A] CUTPA claim based on an alleged unfair claim settlement practice prohibited by § 38a-816(6) [requires] proof, as under CUIPA, that the unfair settlement practice [has] been committed or performed by the defendant with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., 229 Conn. 842, 850, 643 A.2d 1282 (1994). In Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 613 A.2d 838 (1992), the Appellate Court held that in order to state a claim for relief under CUTPA, "[t]he plaintiff must allege that the defendant has committed the alleged wrongful acts with such frequency as to indicate a general business practice." Id., 672.
There is a split of authority in the Superior Court on the degree of specificity required to satisfy the element of pleading a general business practice in a CUTPA claim. The court recognizes that there are several cases which hold that an allegation of a general business practice of unfair settlement practices by an insurer, without pleading additional underlying facts, is sufficient to withstand a motion to strike. See, e.g., Twin Summer Condominium Ass’n, Inc. v. Travelers Indemnity Corp., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-08-5010277-S (April 3, 2009, Eveleigh, J.) ("a general allegation of a general business practice under CUIPA is sufficient to withstand a motion to strike"); Nation v. Allstate Ins. Co., Superior Court, judicial district of Litchfield at Litchfield, CV-04-0093456-S (September 7, 2005, Trombley, J.) (same); Lamour v. Allstate Ins. Co., Superior Court, judicial district of Ansonia-Milford at Milford, CV-95-049034-S (February 15, 1995, Thompson, J.) ("the plaintiff alleges that the defendant has made it a general business practice to undervalue claims and require its insureds to file suit. This allegation is sufficient to withstand the [m]otion to [s]trike"). See also Fradera v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of New Haven at Meriden, CV-11-6003104-S (July 26, 2013, Fischer, J.); Katz v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford at Hartford, CV-11-6020408-S (May 11, 2012, Domnarski, J.); Nationwide Mutual Ins. Co. v. Pasiak, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-08-4015401-S (November 30, 2011, Brazzel-Massaro, J.).
Next, the defendant propounds, as to her third and fourth counts (CUIPA/CUTPA), that the plaintiff improperly pled CUIPA separately from her allegation of CUTPA and that she failed to allege a general pattern of practice engaged in by the defendant. Beginning with the defendant’s first contention, the court notes that the defendant failed to present the court with any authority to support its position that the CUIPA and CUTPA must be plead in one count instead of two separate counts.
"When an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record will not suffice." Miller v. Department of Agriculture, 168 Conn.App. 255, 277 (2016). "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... For this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse a judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed ... the parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited ... Assignments of errors which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn.App. 402, 406 (2010).
Therefore, the court agrees with the plaintiff’s posture that count three is sufficiently pled. With respect to the defendant’s claim that the plaintiff failed to sufficiently plead CUTPA as to general pattern of practice violations, the court disagrees after reviewing the allegations of count four of the plaintiff’s revised complaint. As the plaintiff pointed out in her brief, she cited to several other instances involving the defendant in order to sufficiently allege a general pattern of practice.
D. Plaintiff’s Footnote as to Paragraph 21 is Improper and Should be Stricken
Lastly, in its brief, the defendant contends that the plaintiff’s revised complaint contains a footnote as to a certain paragraph identified as paragraph 21. Citing to an unidentified section of the Practice Book, the defendant supplies the court with following authority: "[e]ach pleading shall contain a plain and concise statement of the material facts ... such statement to be divided into paragraphs numbered consecutively." However, this citation does not expressly or necessarily impliedly support the defendant’s request that the footnote be stricken. The court, thus, treats this as another mere assertion and hereby denies such request.
Conclusion
For the above mentioned reasons, the court denies the defendant’s motion to strike.