Amie Wirth v. Progressive Casualty Insurance Company (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, # 101

I

FACTS

The plaintiff, Amy Wirth, brings a four-count complaint against the defendant, Progressive Casualty Insurance Company, in which she alleges the following facts.   The plaintiff's vehicle was struck from behind by Mohammed Afzal (Mr. Afzal).   The collision and injuries were caused by the negligence and carelessness of Mr. Afzal, who held an automobile liability policy with Allstate Insurance Company.   The policy provided the $25,000/$50,000 policy limits, but did not contain a provision for excess coverage.   The plaintiff settled with Mr. Afzal.   The plaintiff held a policy with the defendant that provided for uninsured and underinsured motorist benefits.   In count one, the plaintiff alleges a breach of contract claim for these benefits.   In count two, she alleges bad faith.

In count three, the plaintiff alleges the defendant violated the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.   She alleges the defendant has violated CUIPA by engaging in unfair claim settlement practices, including failing to adjust, pay, and settle her and other insureds' claim, and not attempting in good faith to effectuate prompt settlement of claims despite reasonably clear liability.  “The defendant's unfair conduct occurred with such frequency so as to indicate a general business practice in that the conduct was carried out repeatedly in various and different manners over a prolonged period of time.”   She further alleges that “[t]he frequency of the defendant's unfair settlement practices, as evidenced in their dealings with both this plaintiff as well as others, indicates a general business practice of the defendant, in violation of CUTPA.”

In count four for breach of contract, the plaintiff alleges the defendant breached the insurance contract when it failed to pay the policy limits, despite the plaintiff fulfilling all of the conditions of the policy, including providing timely notice of loss, proof of loss, and her full cooperation in investigating the loss.

On June 18, 2009, the defendant brought a motion to strike count three of the plaintiff's complaint for CUTPA/CUIPA on the grounds that it fails to set forth other instances of misconduct so as to constitute a general business practice, and count four for breach of contract on the grounds that it is duplicative of count one, which alleges a contractual claim for uninsured motorist benefits.   A memorandum of law was also filed in support of his motion to strike.   The plaintiff filed her opposition on August 20, 2009, accompanied by a memorandum of law in support.   This court heard argument on November 30, 2009.

II

DISCUSSIONA. Motion to Strike Standard

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  Practice Book § 10-39 provides that “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.  “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.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

B. Count Three:  CUTPA/CUIPA

The defendant argues that the plaintiff's CUTPA/CUIPA claim should be stricken, because she has failed to allege that the plaintiff engaged in the allegedly wrongful conduct with such frequency as to indicate a general business practice for purposes of CUIPA.   Specifically, the plaintiff “allege [s] thirteen specifications of a ‘general business practice’ on the part of the defendant, but fail[s] to plead specific facts that indicate this is a general business practice and not an isolated incident of insurer misconduct.”   (Emphasis added.)   In essence, the defendant argues that the plaintiff has not alleged any additional instances of improper conduct that transcend her individual claim.   The defendant provides case law to support its position that because the plaintiff has not attempted to plead a factual basis establishing other specific instances of improper conduct, the allegations regarding general business practice are legally insufficient.

The plaintiff maintains that she properly alleges a CUTPA violation premised on CUIPA.   She points to the wording of the allegations in count three, specifically the use of the plural word “claims” and “insureds,” and her allegation that the defendant's conduct is not only towards this plaintiff, “but to others as well.”   She contends that the specifics of the factual allegations are the proper subject of discovery.   She sets forth a split of authority among Connecticut Superior Courts on the level of specificity required when pleading a general business practice under CUIPA, and maintains that the majority position supports her allegations as sufficient to survive a motion to strike.

“[A] CUTPA claim based on an alleged unfair claim settlement practice ․ require[s] proof, as under CUIPA, that the unfair settlement practice ha[s] 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).   Our Supreme Court has held that “claims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct.”  Mead v. Burns, 199 Conn. 651, 659, 509 A.2d 11 (1986).  “In requiring proof that the insurer has engaged in unfair claim settlement practices ‘with such frequency as to indicate a general business practice,’ the legislature has manifested a clear intent to exempt from coverage under CUIPA isolated instances of insurer misconduct.”  Lees v. Middlesex Ins. Co., supra, 229 Conn. 849.

A split of authority exists regarding the degree of specificity required when pleading a general business practice under CUIPA to survive a motion to strike.   One line of cases, cited by the defendant, requires that the plaintiff plead specific facts to demonstrate acts of insurer misconduct that go beyond the plaintiff's immediate claim.   See Wiacek v. Safeco Ins. Co. of America, Inc., Superior Court, judicial district of Danbury, Docket No. 329601 (March 31, 1998) (court finding that “an allegation based upon ‘reasonable information and belief’ is properly viewed as a legal conclusion, particularly when the plaintiff has made no attempt to plead facts establishing any other instance or instances to demonstrate the frequency of the alleged CUIPA violation”);  Currie v. Aetna Casualty & Surety Company, Superior Court, judicial district of New Britain, Docket No. CV 96 0558900 (August 12, 1999) (court finding the following allegation to be conclusory, and providing no factual basis for a necessary element of the CUIPA claim:  “have continued to commit the acts referred to above as to the plaintiffs, Timothy Currie and Kimberly Currie, and as to other insureds and policy holders of the defendants or the defendants' holding companies, affiliates, or subsidiaries with such frequency as to constitute a general business practice”) (emphasis added);  Ciarleglio v. Fireman's Fund Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 90 0276028 (December 17, 1993) (“The plaintiff has inserted the magic words of other acts of insurance misconduct by the defendant, although not stating the factual basis for that claim.   However, on a motion to strike, legal conclusions are not admitted.”) (emphasis added);  National Publishing Company, Inc. v. Hartford Fire Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0156478 (March 25, 1998) (court finding “the plaintiff has enumerated the alleged reasons that the defendant rejected its claim or claims involving only one particular loss,” and such allegations “do not amount to allegations of conduct occurring ‘with such frequency as to indicate a general business practice’) (emphasis added);  Jones v. Safeco Ins. Co. of Illinois, Superior Court, judicial district of Fairfield, Docket No. CV 98 0357614 (April 28, 1999) (“[T]he plaintiff's case arises out of a single automobile collision.   The plaintiff alleges only a failure to settle her claim.   The plaintiff's allegations ․ that the defendant's conduct ‘is a general business practice’ is a mere legal conclusion”).

However, other Superior Courts have held, essentially, that as long as the plaintiff alleges that the insurer misconduct involves other insureds, pleading specific instances of such misconduct is not required.   In Nation v. Allstate Insurance Co., Superior Court, judicial district of Litchfield, Docket No. CV 04 0093456 (September 7, 2005) (39 Conn. L. Rptr 886, 887), the plaintiff alleged that “on information and belief, Allstate has engaged in a course of conduct constituting a general business practice of failing to make reasonable examinations of its insureds' casualty damages, denying its insureds ' casualty claims, and failing to make good faith efforts to settle claims.”   The court held that it “is aware that there is no appellate authority as to whether a plaintiff must plead other specific instances of unfair settlement practices on the part of an insurer in order to satisfy the allegation of a general business practice and that [S]uperior [C]ourt decisions are split on this issue.   Given the remedial nature of CUIPA and given that it is to be liberally construed to give effect to the legislature's intent, the court holds that the allegation of a general business practice in the plaintiff's complaint is sufficient to withstand a motion to strike.”   In Lamour v. Allstate Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 9034 (February 15, 1995), the court found that the plaintiff's allegation “that the defendant has made it a general business practice to undervalue claims and require its insureds to file suit” is sufficient to withstand a motion to strike.   (Emphasis added.)

In Seeds v. AIG Life Ins. Co., Superior Court, judicial district of New Haven, Docket No. 375958 (December 6, 1996), the court found the following allegations were sufficient to survive a motion to strike:  “The insurer has violated CUIPA by ‘(c) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims;  ․ (e) failing to act or acknowledge with reasonable promptness communications from insureds regarding the claim or claims;  and (f) forcing claimants to bring suit in order to effectuate a fair settlement of their claims.”  (Emphasis added.)   In Cloutier v. Liberty Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 90 278184 (August 9, 1996), the court held that the plaintiff's allegations that “ ‘the defendant insurer has acted as aforesaid on other occasions such that its conduct appears to be a general business practice to discourage claims under its policies of insurance, breach its contractual and statutory duties to claimants covered under its contracts of insurance and deprive covered claimants of their rights and benefits due ․” were sufficient to survive a motion to strike.  (Emphasis added.)   In Massotti v. Allstate Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0192061 (May 16, 2003) (34 Conn. L. Rptr. 615, 615), the court found that the allegations that the defendant has “violated CUIPA by engaging in unfair settlement practices, including failure to reply to her claim within a reasonable time, failing to conduct a reasonable investigation, and that the ‘frequency’ of the defendant's conduct in handling similar claims ‘with both this plaintiff as well as others ’ constituted ‘a general business practice’ “ were sufficient to survive a motion to strike.  (Emphasis added.)

In the present case, the plaintiff alleges that the defendant has engaged in unfair claim settlement practices by “refusing to pay claims without conducting a reasonable investigation based on all information ․ failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies;  failing to adjust, pay and settle insured ['s], the plaintiff in particular, claim in good faith despite its contractual and statutory obligation to do so;  not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;  compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the fair and reasonable amounts ultimately recovered in actions brought by such insureds ․ “ (Emphasis added.)   Further, “[t]he defendant's ․ unfair conduct occurred with such frequency so as to indicate a general business practice in that the conduct was carried out repeatedly in various and different manners over a prolonged period of time.”   In addition, “[t]he frequency of the defendant's unfair settlement practices, as evidenced in their dealings with both this plaintiff as well as others, indicates a general business practice of the defendant, in violation of CUIPA.”

The plaintiff's allegations of insurer misconduct reach beyond the plaintiff's individual claim, as evidenced by her use of the plural “claims” and “insureds.”   The plaintiff's choice of words demonstrates that the acts are not confined to the plaintiff herself.   In addition, the plaintiff here alleges similar facts as the plaintiff in Lamour v. Allstate Ins. Co., supra, Docket No. CV 95 9034, namely that the defendant has made it a general business practice to require its insureds to file suit.   Pursuant to the second line of cases discussed above, specific instances of unfair claims practices as to other insureds are not required to survive a motion to strike for failure to allege a general business practice.

Count three is “sufficiently broad to encompass a number of activities and claims not limited in time or to any particular insured,” and the “plaintiff has framed a complaint alleging something more than an isolated instance of an unfair insurance settlement practice ․” (Emphasis added.)   Martin v. New England Masonry, Superior Court, judicial district of Waterbury, Docket No. 092336 (May 6, 1991) [4 Conn. L. Rptr. 551].

Accordingly, the motion to strike count three is denied.

C. Count Four:  Breach of Contract

Next, the defendant moves to strike count four of the plaintiff's complaint for breach of contract on the grounds that it is duplicative of count one, which alleges a contractual claim for uninsured motorist benefits.   The defendant argues that both counts one and four are, essentially, breach of contract claims.   The possible damages the plaintiff is entitled to under the contract are limited to the amount of underinsured motorist coverage available under the policy.   Therefore, the relief sought in both counts is the same.   In her opposition, the plaintiff maintains that the two counts are different because they require different burdens of proof, and that she may prevail on one count and lose on the other.   In addition, while the plaintiff is limited to the underinsured motorist coverage under the policy in count one, under count four, she could be awarded attorneys fees and other equitable claims above and beyond that provided for in count one.

Practice Book § 10-35 provides in relevant part:  “Whenever any party desires to obtain ․ (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading ․ the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.”

“[T]here is no explicit appellate authority on the issue of the proper vehicle for the elimination of duplicative claims ․ A split of authority exists within the Superior Court regarding how the duplication of claims should be addressed ․ [A] majority of Superior Court cases ․ [have] held that [a] request to revise, and not a motion to strike, is the proper procedural device for deletion of duplicative pleadings ․” (Internal quotation marks omitted.)   Sandru v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 07 5014056 (September 3, 2008) (46 Conn. L. Rptr. 238, 239), citing Morales v. Kulig, Superior Court, judicial district of New Britain, Docket No. CV 07 5005451 (June 11, 2008) (pleading flaw of duplicative claims properly addressed by request to revise to eliminate duplication, not by motion to strike);  Ritchie v. Charlotte Hungerford Hospital, supra, Docket No. CV 07 5002368 (“to the extent that [the defendant] argues that count one and count six are duplicative, a motion to strike is not the appropriate procedural vehicle with which to address such an argument”);  Pike v. Bugbee, Superior Court, judicial district of Hartford, Docket No. CV 06 5005721 (October 30, 2007) (“[s]ince a claim that a count is repetitious challenges the form of the pleading but not its legal sufficiency, the motion to strike either count one or count three is denied”);  Brookes v. New Haven Savings Bank, Superior Court, judicial district of Hartford, Docket No. CV 94 0544390 n. 3 (January 27, 1997) (“proper method by which to rid a complaint of duplicative counts is a request to revise”);  Chemlecki v. Decorative Screen Printers, Inc., Superior Court, judicial district of New London Docket No. CV 94 0532041 (June 19, 1995) (“[the defendant's] argument that these counts are repetitive of count six should have been raised in a request to revise and is not properly raised in a motion to strike”);  see also Law Offices of Thomas E. Porzio, LLC v. Northern Expansion, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008203 (April 15, 2009).   There is, however, contrary authority.   See Cambodian Buddhist Society of Connecticut v. Planning & Zoning Commission, judicial district of Danbury, Docket No. CV 03 0348578 (January 10, 2005) (granting motion to strike ‘unnecessarily duplicative’ counts without discussing if a request to revise is the correct procedural device);  Hayward v. Friendly Ice Cream Corp., Superior Court, judicial district of New Haven, Docket No. CV 95 0375622 (November 9, 1995) (granting motion to strike duplicative count);  DeGregorio v. Glenrock Condo Ass'n., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 07 5002796 (October 13, 2009).

Practice Book § 10-35, by its terms, provides that “unnecessary” and “repetitious” allegations should be addressed via a request to revise.   The court adopts the majority view that repetitious and duplicative allegations should be addressed in a request to revise, rather than a motion to strike.

The defendant's motion to strike is not properly before the court, and, therefore, is denied as to count four.

III

CONCLUSION

For all the foregoing reasons, the defendant's motion to strike is denied as to count three and count four.

Swienton, J.

Swienton, Cynthia K., J.