Susan Metcalf, as the Executrix of the Estate of Guy Metcalf, Jr., Deceased v. Hartford Casualty Insurance Company (2010)

MEMORANDUM OF DECISION

ISSUE

Whether the court should grant the defendant's motion to strike count two of the plaintiff's substituted complaint and its corresponding prayer for relief on the ground that it is legally insufficient to state the cause of action that the plaintiff attempts to allege therein?

FACTS

On December 8, 2009, the plaintiff, Susan Metcalf, as the executrix of the estate of Guy Metcalf, Jr., filed a two-count, substituted complaint against the defendant, Hartford Casualty Insurance Company, in which she alleges the following facts.   In count one of the complaint, the plaintiff alleges that Guy Metcalf, Jr. maintained a dental office for which he obtained a “spectrum” insurance policy from the defendant prior to June 2007.   The policy insured the dental business operations, including business property damage, overhead, interruption and income losses.   On or about June 26, 2007, a fire damaged the dental practice and forced Guy Metcalf, Jr. to suspend his practice.   Although Guy Metcalf, Jr. performed his obligations under the policy, the defendant failed and refused to pay Guy Metcalf, Jr. the full amount demanded as a result of the fire.   Thus, the plaintiff seeks money damages on behalf of Guy Metcalf, Jr.'s estate.   In count two, the plaintiff reiterates the allegations of count one and claims that the defendant intentionally and willfully represented that it would reimburse Guy Metcalf, Jr. for, among other things, his continued operating expenses and business interruption arising from the fire.   Moreover, the defendant intentionally and willfully refused to reimburse Guy Metcalf, Jr. as required by “generally accepted accounting principles.”   As a result, the plaintiff was required to expend money on attorneys fees and experts' fees because “the [d]efendant acted in bad faith by misleading Guy Metcalf as to the claims it would pay with its policy.”   Thus, the plaintiff seeks money damages, including interest, as well as attorneys fees, experts' fees and any other just relief.

On December 23, 2009, the defendant filed a motion to strike count two of the plaintiff's substituted complaint and its corresponding prayer for relief on the ground that count two is legally insufficient.¹  The plaintiff did not file a memorandum in opposition to the defendant's motion to strike, but the plaintiff appeared at oral argument on January 11, 2010.

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 may be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The motion admits all facts that are well pleaded ․ but does not admit legal conclusions or the truth or accuracy of opinions ․ On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted.  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 562, 974 A.2d 1055 (2009).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ [On the other hand] [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citation omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.   Moreover, 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, 292 Conn. 111, 120, 971 A.2d 17 (2009).

“Practice Book § 155, now § 10-42, previously provided that a party who failed to file ․ a memorandum [in opposition to a motion to strike] shall be deemed by the court to have consented to the granting of the motion ․ That language was subsequently removed from Practice Book § 10-42.”  (Citation omitted;  internal quotation marks omitted.)  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003).  “In Doe, the Appellate Court further explained that ‘[b]ecause we affirm the judgment on the merits of the motion to strike and because the plaintiff's failure to file a memorandum of law has not been raised as an alternative ground for affirmance, we have no occasion to consider whether such failure remains a sufficient basis for granting a motion to strike.’  “ Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV 09 4027290 (March 25, 2009, Bellis, J.).  “A split of authority exists within the Superior Court regarding whether an opposing party consents to the granting of a motion to strike when it fails to file a memorandum of law in opposition.”  Id. “[A] minority in the Superior Court has continued to hold that a party who fails to comply with § 10-42(b) consents to the granting of the motion to strike.   These decisions have concluded that the filing of an opposing memorandum is mandatory and that the motion to strike must be granted on procedural grounds alone.   By contrast, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike ․ [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party ․” Thompson v. Home Depot, USA, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.).²

In the present case, although the plaintiff has not filed an opposition memorandum to the defendant's motion to strike, the plaintiff appeared at oral argument and alleged that she did not file a memorandum because the defendant's own memorandum in support of its motion to strike suggests that the plaintiff has satisfied the standard for bad faith.   Thus, the plaintiff suggested that the court compare the complaint with the defendant's memorandum in ruling on this motion.   The defendant has not raised an objection to the procedural deficiency here.   Given the change in Practice Book § 10-42 and the interpretation of this change, as well as the plaintiff's appearance at oral argument and the defendant's failure to object to the procedural deficiency here, this court finds the Superior Court's majority position more persuasive and will proceed to the merits of the present motion to strike.

In the defendant's motion to strike and in its supporting memorandum of law, the defendant argues that the plaintiff fails to allege sufficient facts to establish a claim for breach of the implied covenant of good faith and fair dealing and, accordingly, count two and its corresponding prayer for relief must be stricken.   More specifically, the defendant argues, the plaintiff must allege acts demonstrating “wanton and malicious injury, evil motive and violence, dishonest purpose, moral obliquity, furtive design or ill will,” and the plaintiff's bad faith count lacks such allegations.   Rather, the defendant suggests, the plaintiff's bad faith claim is wholly conclusory.   At oral argument, the plaintiff directed the court to pages three and seven of the defendant's memorandum of law and suggested that the defendant has acknowledged, albeit indirectly, that the plaintiff's complaint satisfies the pleading standard for bad faith.

“[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in the dispute is a party's discretionary application or interpretation of a contract term ․ 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.”  (Internal quotation marks omitted.)  Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).  “[G]ood faith and fair dealing means an attitude or state of mind denoting honesty of purpose, freedom from intention to defraud and generally speaking means faithful to one's duty or obligation ․ an honest intention not to take an unconscientious ․ advantage of another ․ [B]ad faith is defined as the opposite of good faith, generally implying a design to mislead or to 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 ․ [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ․ it contemplates a state of mind affirmatively operating with furtive design or ill will.”  (Internal quotations omitted.)  Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987).

“[T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute a finding of bad faith.   Chapman v. Georgine Realty, Superior Court, judicial district of New Haven, Docket No. CV 05 5001346 (August 29, 2008, Bellis, J.).   Some courts have required that allegations establishing a dishonest purpose or malice be specifically [pleaded].   See Grant v. Colonial Penn Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV95 0321277 (January 16, 1996, Hauser, J.) (16 Conn. L. Rptr. 49);  Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 05 4002121 (January 13, 2006, Pickard, J.).   Other courts have ruled that a plaintiff need only allege sufficient facts or allegations from which a reasonable inference of sinister motive can be made.   See McGill v. Mutual of Omaha Ins. Co., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 0104343 (September 28, 2004, Quinn, J.).   For instance, bad faith may be inferred by repetitive, knowing or deliberate conduct as such allegations are unlikely to be attributable to an honest mistake or mere negligence.   Algiere v. Utica National Ins. Co., Superior Court, judicial district of New London, Docket No. CV 04 0569670 (February 7, 2005, Jones, J.), see also Morin v. Tracy, Driscoll & Co., Superior Court, judicial district of Hartford, Docket No. CV 03 0823241 (May 26, 2004, Sheldon, J.).”  (Internal quotation marks omitted.)   Razor's Auto Body & Services, LLC v. Travelers Indemnity Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5010129 (August 11, 2009, Pavia, J.).

In the present matter, the plaintiff alleges that “the [d]efendant intentionally and willfully represented to Guy Metcalf that the [d]efendant would reimburse him for, among other things, his continued operating expense, expenses and lost business arising from the fire and the consequence thereof at his business property,” that “the [d]efendant intentionally, willfully, and in disregard of, or derogation of [the plaintiff's] rights refused to reimburse Guy Metcalf as represented and as required by generally accepted accounting principles,” and that “the [d]efendant acted in bad faith by misleading Guy Metcalf as to the claims it would pay with its policy.”   In the defendant's memorandum in support it states:  “Put simply, while these allegations state a misrepresentation on the part of the Hartford Casualty, [the defendant], [c]ount [t]wo fails to assert that Hartford Casualty intentionally misled or deceived the insured as is required for proof of bad faith under Connecticut law.”  (Emphasis in original.)

While this court acknowledges that the plaintiff must plead more than conclusory allegations in order to survive a motion to strike, this court cannot find that the plaintiff's complaint fails to meet this standard when construing the complaint in a light most favorable to the plaintiff.   Although the Superior Court is divided as to the level of factual detail required to allege a dishonest purpose or malice, the plaintiff uses the terms “intentionally and willfully” in connection with an alleged “representation” by the defendant, and later suggests that the defendant misled the plaintiff.   While it is unclear whether this “representation” was based on the policy or whether it was based on some other affirmative act by the defendant, the fact remains that the plaintiff has alleged a “representation,” that was “intentional and willful.”   Given that the court is required to construe the complaint in a light most favorable to the plaintiff, the court finds that the plaintiff has sufficiently pleaded bad faith in count two.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike count two and its corresponding prayer for relief.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. The defendant moved to strike count two of the original complaint and its corresponding prayer for relief on August 19, 2009.   The court granted that motion to strike on November 23, 2009, after the plaintiff failed to file an objection to the motion to strike and allegedly failed to appear at oral argument..  FN1. The defendant moved to strike count two of the original complaint and its corresponding prayer for relief on August 19, 2009.   The court granted that motion to strike on November 23, 2009, after the plaintiff failed to file an objection to the motion to strike and allegedly failed to appear at oral argument.

FN2. In fact, “our Appellate Court has suggested that, at least where the adverse party objects, the court should enforce the rules of practice:  [O]ur Supreme Court has previously afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency ․ In the absence of any objection by the defendant on this basis, or any appellate case law making such a filing mandatory, this oversight by the plaintiffs is not fatal to their claims.”  (Citation omitted;  internal quotation marks omitted.)   Scelfo v. Brooklyn, Superior Court, judicial district of Windham, Docket No. CV 09 5004004 (August 31, 2009, Riley, J.) (48 Conn. L. Rptr. 432, 432-33)..  FN2. In fact, “our Appellate Court has suggested that, at least where the adverse party objects, the court should enforce the rules of practice:  [O]ur Supreme Court has previously afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency ․ In the absence of any objection by the defendant on this basis, or any appellate case law making such a filing mandatory, this oversight by the plaintiffs is not fatal to their claims.”  (Citation omitted;  internal quotation marks omitted.)   Scelfo v. Brooklyn, Superior Court, judicial district of Windham, Docket No. CV 09 5004004 (August 31, 2009, Riley, J.) (48 Conn. L. Rptr. 432, 432-33).

Roche, Vincent E., J.