Justin Novey v. Attorney Michael Hayes, Administrator for the Estate of Jill Marie Cowperwaithe et al. (2010)

MEMORANDUM OF DECISION

On May 4, 2010, the plaintiff, Justin Novey, filed a five-count complaint against several defendants, among whom was Liberty Mutual Insurance Company.¹  In count four of his complaint, the plaintiff alleges the following against the defendant.   On April 3, 2008, the decedent, Jill Marie Cowperwaithe, was operating a 2006 Subaru, owned by John M. Cowperwaithe, on New Haven Avenue in Milford, Connecticut.   While operating the motor vehicle, the decedent lost control and struck a utility pole.   The plaintiff claims that the decedent then continued in an easterly direction on New Haven Avenue, crossed over the center line of the roadway, again went off the travel portion of the roadway on the northern side of New Haven Avenue and struck several parked cars, thereby causing injuries to the plaintiff.   The plaintiff was a rear seat passenger in the motor vehicle.   The plaintiff further alleges that the defendant issued an insurance coverage policy to John M. Cowperwaithe on the motor vehicle owned by him and operated by the decedent.   In the insurance coverage policy, the defendant agreed to pay all sums which the insured became legally obligated to pay as damages due to bodily injury or property damage arising out of the ownership, maintenance or use of the insured's motor vehicle.   The plaintiff further alleges that, subsequent to the accident, the defendant engaged in unfair and deceptive practices in violation of the Connecticut Unfair Trade Practices Act [CUTPA] when it did not settle the claim made by the plaintiff.

On June 15, 2010, the defendant filed a motion to strike count four of the plaintiff's complaint.   On November 10, 2010, the plaintiff filed an objection to the motion and a memorandum in opposition.   On November 12, 2010, the defendant filed a reply to the plaintiff's memorandum in opposition.   On November 22, 2010, the plaintiff filed a reply memorandum to the defendant's reply memorandum.   This court heard argument on this motion at short calendar on November 22, 2010.²

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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “We take the facts to be those alleged in the complaint that have been stricken 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 ․ Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).

The defendant moves to strike count four of the plaintiff's complaint on the ground that the plaintiff failed to allege subrogation or a judicial determination of liability.   The defendant argues that the plaintiff must allege subrogation or a judicial determination of liability to set forth a legally sufficient claim because Connecticut courts prohibit third-party claims under CUIPA [Connecticut Unfair Insurance Practices Act] or CUTPA when there is no subrogation or a judicial determination of liability.   The plaintiff argues that the Connecticut Supreme Court has not resolved the question of whether a third-party can bring a private cause of action directly against an insurer under CUIPA or CUTPA.³  The plaintiff further argues that the defendant engaged in unfair insurance and trade practices in violation of CUIPA and CUTPA by refusing to pay the plaintiff's medical expenses and/or by refusing to settle the plaintiff's claims for a reasonable sum.   The defendant argues that even if the plaintiff's third-party claim is permissible, the plaintiff failed to allege facts indicating a general business practice of unfair insurance and trade practices as required by CUIPA and CUTPA.

“[T]he right to assert a private cause of action for CUIPA violations through CUTPA does not extend to third parties absent subrogation or a judicial determination of the insured's liability.”  Carford v. Empire Fire & Mutual Ins. Co., 94 Conn.App. 41, 53, 891 A.2d 55 (2006).  “[Subrogation] is a legal fiction through which one who, not as a volunteer or in his own wrong ․ pays the debt of another, is substituted to all rights and remedies of the other.”   (Internal quotation marks omitted.)  Home Ins. Co. v. Aetna Life & Casualty Ins. Co., 235 Conn. 185, 196, 663 A.2d 1001 (1995).  “[I]nsurance companies have no duty under CUIPA to the [injured third-party], at least prior to entry of a judgment against the insured ․” (Citation omitted;  internal quotation marks omitted.)   Izzo v. Kruk, Superior Court, judicial district of New Haven, Docket No. CV 02 0468089 (April 29, 2003, Gilardi, J.) (34 Conn. L. Rptr. 441).  “[U]ntil there is a formal determination of whether the [tortfeasor is] liable to the plaintiff-and in what amount-[the insurer] owes no duty to the plaintiff.”   Sherrick v. Belanger, Superior Court, judicial district of New Britain, Docket No. CV 06 5000584 (August 7, 2007, Pittman, J.).

In the present case, the plaintiff alleges that the liability of the tortfeasor is not in question.   Although the plaintiff makes this argument, the argument in and of itself does not rise to the level of a judicial determination of the tortfeasor's liability.   Absent a court finding that the tortfeasor is liable, there can be no subrogation by the defendant for the claim that insured the motor vehicle driven by the tortfeasor.   As the plaintiff does not allege that a court has found the tortfeasor liable for the plaintiff's injuries or that the defendant has agreed to subrogate the insured's liability, the plaintiff has not alleged facts sufficient to state a cause of action.   Due to the insufficiency of the plaintiff's claim, the court need not address whether the plaintiff pleaded facts sufficient to demonstrate a general business practice.⁴

For the foregoing reasons, the court grants the defendant's motion to strike count four of the complaint.

Woods, J.

FOOTNOTES

FN1. In his complaint dated November 18, 2010, the plaintiff named the following defendants:  Michael Hayes, Administrator of the Estate of Jill Cowperwaithe;  John M. Cowperwaithe;  Liberty Mutual Insurance Company;  and Megan Cook. Liberty Mutual will be referred to as “the defendant” because Liberty Mutual is the only defendant that is a party to this motion..  FN1. In his complaint dated November 18, 2010, the plaintiff named the following defendants:  Michael Hayes, Administrator of the Estate of Jill Cowperwaithe;  John M. Cowperwaithe;  Liberty Mutual Insurance Company;  and Megan Cook. Liberty Mutual will be referred to as “the defendant” because Liberty Mutual is the only defendant that is a party to this motion.

FN2. The parties agreed at oral argument that the amended complaint dated November 18, 2010, is the operative complaint..  FN2. The parties agreed at oral argument that the amended complaint dated November 18, 2010, is the operative complaint.

FN3. The defendant's argument that CUTPA and CUIPA do not allow a direct claim against an insurer by an injured third-party has substantial legal support.   The plaintiff's position incorrectly assumes that Court of Appeals rulings are not controlling precedent for a trial court in the absence of a Connecticut Supreme Court decision.   See Stepler v. Zelich, Superior Court, judicial district of New Haven, Docket No. CV 92 0326980 (January 30, 1995, Zoarski, J.)..  FN3. The defendant's argument that CUTPA and CUIPA do not allow a direct claim against an insurer by an injured third-party has substantial legal support.   The plaintiff's position incorrectly assumes that Court of Appeals rulings are not controlling precedent for a trial court in the absence of a Connecticut Supreme Court decision.   See Stepler v. Zelich, Superior Court, judicial district of New Haven, Docket No. CV 92 0326980 (January 30, 1995, Zoarski, J.).

FN4. To set forth a claim of unfair claim settlement practices, General Statutes § 38a-816(6) requires that a defendant carry out “unfair and deceptive acts or practices in the business of insurance ․ with such frequency as to indicate a general business practice ․” The plaintiff argues that the defendant's dealings with three individuals under a single claim constitute a general business practice.   The Connecticut Supreme Court, however, held that the “alleged improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a general business practice as required by § 38a-816(6).”  (Internal quotation marks omitted.)  Lees v. Middlesex Ins. Co., 229 Conn. 842, 849, 643 A.2d 1282 (1994);  see also Mead v. Burns, 199 Conn. 651, 666, 509 A.2d 11 (1986)..  FN4. To set forth a claim of unfair claim settlement practices, General Statutes § 38a-816(6) requires that a defendant carry out “unfair and deceptive acts or practices in the business of insurance ․ with such frequency as to indicate a general business practice ․” The plaintiff argues that the defendant's dealings with three individuals under a single claim constitute a general business practice.   The Connecticut Supreme Court, however, held that the “alleged improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a general business practice as required by § 38a-816(6).”  (Internal quotation marks omitted.)  Lees v. Middlesex Ins. Co., 229 Conn. 842, 849, 643 A.2d 1282 (1994);  see also Mead v. Burns, 199 Conn. 651, 666, 509 A.2d 11 (1986).

Woods, Glenn A., J.