Diane Swol v. Webster Bank, N.A. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

FACTS

This is an action in four counts.   The First Count of the amended complaint alleges that the defendant, Webster Bank, N.A. [Webster Bank] breached its contract with one Stefan E. Urbanski [Urbanski], now deceased, by paying over the balance of Urbanski's account [described in the complaint as a “deposit”] to a third party, rather than to the plaintiff, Diane Swol [Swol] as allegedly set forth in the account agreement between Urbanski and Webster Bank. The Second Count alleges Webster Bank was negligent in so doing, in purging its account information, failing to provide information and records to the plaintiff or her counsel, failing to pay the deposit to the plaintiff and in making false statements.   The Third Count claims intentional torts including fraudulent concealment, false representation, refusal to pay the deposit to the plaintiff and discouraging the plaintiff from retaining an attorney.   The Fourth Count claims violation of General Statutes § 42-110a, et seq.   (CUTPA).

The defendant, Webster Bank, now moves to strike the First, Second and Third Counts of the complaint on the ground that they fail to state claims upon which relief may be granted.   The plaintiff has filed a memorandum of opposition to the motion, arguing that the counts have been sufficiently pleaded.   The parties presented argument on their respective positions.

LEGAL STANDARD

“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).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (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).

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ We ․ construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009);  see also Practice Book § 10-39 (addressing motion to strike).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).

In addition, it is well settled that “[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ․” (Internal quotation marks omitted.)  Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).   As a result, “[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009);  Practice Book § 10-20 (complaint “shall contain a concise statement of the facts constituting the cause of action”).   Yet “․ if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact or issue is not fatal to his claim unless it results in prejudice to the defendant.”  Machado v. Hartford, 292 Conn. 364, 370 n. 7, 972 A.2d 724 (2009).

Sturm v. Harb Development, LLC, 298 Conn. 124, 130-31, 2 A.3 859 (2010).

“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

ANALYSIS

I Breach of Contract

As to the First Count, sounding in breach of contract, the defendant asserts, “Plaintiff has failed to allege any facts claiming the formation of an agreement between her and Webster.”   The plaintiff does not claim that she was a party to the agreement.   In fact, she specifically pleads that the details of the agreement between Urbanski and the defendant were unknown to her.   First Count of the amended complaint, ¶ 4.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks and citation omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055 (2009).

In asserting a claim of breach of contract, the plaintiff does not have to allege that she was a party to the contract.  “A third party beneficiary may enforce a contractual obligation without being in privity with the actual parties to the contract ․ Therefore, a third party beneficiary who is not a named obligee in a given contract may sue the obligor for breach.  Gateway Co. v. DiNoia, 232 Conn. 223, 230-31, 654 A.2d 342 (1995).[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] ․ Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 109, 971 A.2d 8 (2009).   Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, [when] the language is clear and unambiguous it becomes a question of law for the court.  Gateway Co. v. DiNoia, supra, 232.”  (Internal quotations and footnote omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 217, 982 A.2d 1053 (2009).

The plaintiff has pleaded all the elements of breach of contract.   The plaintiff alleges Urbanski and the defendant entered into an agreement;  Urbanski performed by depositing funds into an account held by the defendant;  the defendant breached the agreement by paying the funds to a third party rather than the beneficiary listed on the account;  and the plaintiff beneficiary was damaged thereby.

The defendant's motion to strike the First Count of the amended complaint is denied.

II Negligence

The Second Count of the amended complaint sounds in negligence.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ The existence of a duty of care is an essential element of negligence ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008).”  (Internal quotation marks omitted.)   Sturm v. Harb Development, LLC, supra, 298 Conn. 124 at 139-40.

The defendant argues that the plaintiff has failed to allege it owed a duty to her.   However, in ¶ 9 of the Second Count, as incorporated by reference from the First Count, the plaintiff alleges, “On the death of Stefan E. Urbanski, Plaintiff became the sole owner of the deposit and was entitled to receive from Defendant the entire balance of said account together with accrued interest.”   The plaintiff has sufficiently alleged facts which, if proven, would establish a duty on the part of the defendant.   The defendant's motion to strike the Second Count of the amended complaint is denied.

III Intentional Tort

The Third Count of the amended complaint sounds in intentional tort.¹  The count contains allegations of conduct of the defendant which had previously been characterized as breach of contract in the First Count and negligent in the Second Count.   The defendant argues, “No new, significant factual allegations are alleged in Count Three.”   However, the same alleged facts are not precluded when pleading in the alternative.

In addition, the Third Count contains several new allegations that the defendant made false representations, fraudulently concealed information and records and discouraged her from retaining an attorney to pursue her claims. ¶¶ 27(e), (f) and (g).  These appear to be rough approximations of the elements required to be alleged in count sounding in fraud.²  Fraud is an intentional tort.  Sturm v. Harb Development, LLC, supra, 298 Conn. 124 at 142;  Kramer v. Petisi, 285 Conn. 674, 684 n. 9, 940 A.2d 800 (2008).

The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], 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).   Reading the allegations of the Third Count of the amended complaint in the most favorable light to the pleader, they are sufficiently pleaded to support a cause of action of fraud.   Therefore, the defendant's motion to strike the Third Count is denied.

ORDER

The defendant's motion to strike the First, Second and Third Counts of the plaintiff's amended complaint is denied.

Robert E. Young, Judge

FOOTNOTES

FN1. The plaintiff in this count alleges that the defendant “acted willfully, wantonly and maliciously.” ¶ 27 of the Third Count, amended complaint.   Willful and wanton behavior, synonymous with recklessness, is defined as “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Citations and internal quotation marks omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003).   It is presumed that the plaintiff is intending to present a cause of action of intentional tort based on her use of the word “maliciously,” and the allegations contained in the subparagraphs of ¶ 27.   The court does so because of its obligation to construe the allegations in favor of the pleader.  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997)..  FN1. The plaintiff in this count alleges that the defendant “acted willfully, wantonly and maliciously.” ¶ 27 of the Third Count, amended complaint.   Willful and wanton behavior, synonymous with recklessness, is defined as “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Citations and internal quotation marks omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003).   It is presumed that the plaintiff is intending to present a cause of action of intentional tort based on her use of the word “maliciously,” and the allegations contained in the subparagraphs of ¶ 27.   The court does so because of its obligation to construe the allegations in favor of the pleader.  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

FN2. “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.”  (Citation omitted;  internal quotation marks omitted.)   Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777-78, 802 A.2d 44 (2002)..  FN2. “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.”  (Citation omitted;  internal quotation marks omitted.)   Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777-78, 802 A.2d 44 (2002).

Young, Robert E., J.