Morgan Dion v. Attorney Michael Hayes, Administrator for the Estate of Jill Marie Cowperth (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE # 106

At issue is the defendant Liberty Mutual Fire Insurance Company's Motion to Strike Count Four of the plaintiff's revised complaint dated June 8, 2010.   For the foregoing reasons, the defendants Motion to Strike is granted.

BACKGROUND

The plaintiff was involved in a motor vehicle accident in 2006 while riding in a car operated by Jill Cowperthwaite.   The car was insured by Liberty Mutual.   The plaintiff has brought a direct claim against Liberty Mutual alleging a violation of CUTPA for failing to settle her claim against the insured.   The defendant argues the plaintiff's claim is legally insufficient.

II

DISCUSSION

Practice Book § 10-39 provides in relevant part:  “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any ․ cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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 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.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․” (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).  “Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Citation omitted;  internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

The plaintiff in the instant action fails to allege any facts that provide her with a right of action against Liberty Mutual.   In Carford v. Empire Fire and Marine Insurance Company, 94 Conn.App. 41 (2006), the Appellate Court held that under CUTPA and CUIPA, third parties have no right of action against insurers absent subrogation or a judicial determination in the third party's favor against the insured.   There has been no judicial determination and this is not a subrogation matter.

Based on the above Count Four of the plaintiff's Revised Complaint is stricken.

Brian T. Fischer, Judge

Fischer, Brian T., J.