Helyn Bird v. Wendelynne Ortiz et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE

In 2005, the plaintiff, Helyn Bird, purchased a policy of automobile insurance from the defendant, Nationwide Insurance Company, through its agent, the defendant Wendelynne Ortiz.   The policy provided for liability coverage in a maximum amount of $20,000.00 per person. $40,000.00 per incident.   She purchased the same amount of uninsured/underinsured motorist insurance coverage.

Four years later, in July 2009, while the same policy was in effect, the plaintiff was involved in a motor vehicle collision.   She received a settlement of $100,000.00 from the other driver.   The plaintiff claims that the amount of her Nationwide uninsured/underinsured policy benefit is insufficient to compensate her for the injuries and losses allegedly incurred by her as a result of said collision.   She commenced the instant action against Ortiz and Nationwide in four counts sounding in negligence and breach of fiduciary duty claiming that the defendants should have provided her with a policy featuring greater protection.

The defendants have filed a motion to strike all four counts of the plaintiff's revised complaint dated October 29, 2010.   Counts One and Three allege negligence and Counts Two and Four allege a breach of fiduciary duty.

The plaintiff objects to the motion to strike Count One and Count Three.   She does not persist in her objection to strike Counts Two and Four as to breach of fiduciary duty.   The motion to strike to those two counts is hereby granted.

As to Count One and Count Three, the defendants argue that those counts do not sufficiently allege a cause of action in negligence on the part of either defendant because they fail to allege fraud or any other inequities necessary to bring an action against an insurance agent and an insurance company.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint [or special defense] ․ to state a claim upon which relief can be granted ․ A motion to strike ․ requires no factual findings by the trial court.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “It is fundamental that in determining the sufficiency of a complaint [or defense] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted” Gazo v. Stamford, 255 Coun. 245, 260 (2001).

“[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied.”  Craig v. Driscoll, 262 Conn. 312, 321 (2003).

In the case of Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185 (1992), the court held, “Where a party enters into an insurance contract, a party cannot allege that it was not aware what benefits it was receiving or reducing unless fraud or inequitable conduct in the part of the other party is alleged.”  Id. p.190.

The plaintiff has not alleged fraud or inequitable conduct in her revised complaint.   Even if it could be found that Ortiz was negligent in recommending such a low amount of coverage, mere negligence does not rise to the level of inequitable conduct.

P.B. Sec. 10–39 provides, relevant part. “(a) Whenever a party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or anyone 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.”

Having considered the relief sought in the motion to strike Count One and Count Three in the above matter, the Court finds the plaintiff has failed to sufficiently state a cause of action in negligence against either of the two named defendants, Wendelynne Ortiz or Nationwide Insurance Company and, for that reason, the motion to strike those two counts is granted.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.