Malik Edwards v. Progressive Casualty Insurance Company (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, No. 107

FACTS

This case arises out of a motor vehicle accident allegedly occurring on September 4, 2008, when the plaintiff, Malik Edwards, was injured by an uninsured motorist in East Hartford, Connecticut.   At the time of the accident, the plaintiff had an insurance policy with the defendant, Progressive Casualty Insurance Company (Progressive).   According to the complaint, the defendant was duly notified of the accident and of the claims brought pursuant to the uninsured motorist coverage of the insurance policy but has refused to provide the benefits to which the plaintiff is allegedly legally entitled.   The plaintiff originally filed his complaint against the defendant on September 30, 2010.

This court granted the plaintiffs request to amend his complaint on May 16, 2011.   The operative complaint in this case alleges five counts against the defendant, sounding in breach of contract, bad faith, violation of the Connecticut Unfair Insurance Practices Act (CUIPA), violation of the Connecticut Unfair Trade Practices Act (CUTPA) and, again, breach of contract, respectively.

On December 6, 2010, the defendant filed a motion to strike counts two, three, four and five of the plaintiff's complaint, as well as the corresponding prayers for relief.   The motion is accompanied by a memorandum of law.   The plaintiff filed an objection to the motion to strike and memorandum of law in support of his objection on March 30, 2011.

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).  “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).  “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).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)   Id., 580.

In the present case, the defendant argues that counts two, three, four and five of the amended complaint should be stricken on the respective grounds that:  the plaintiff has failed to allege that the defendant lacked a reasonable basis to deny paying him his policy limits;  CUIPA does not create a private cause of action;  isolated incidents of insurer misconduct do not form a basis of a CUTPA claim;  and count five is duplicative of count one.

In response, the plaintiff contends that his complaint, as amended, addresses the alleged deficiencies raised by the defendant.   In addition, he consents to striking count five of the amended complaint.

With respect to the bad faith claim in count two, “[a]n implied covenant of good faith and fair dealing has been applied by [our Supreme Court] in a variety of contractual relationships, including ․ insurance contracts.”   (Internal quotation marks omitted.)  Carford v. Empire Fire & Marine Ins. Co., 94 Conn.App. 41, 45, 891 A.2d 55 (2006).   In order to prove that a carrier breached such a duty, however, a plaintiff must prove that the insurer “engaged in conduct designed to mislead or to deceive ․ or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties.”  (Internal quotation marks omitted.)   Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 544–45, 792 A.2d 132 (2002).  “The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud ․ In order to make [such a claim] the plaintiff must allege that the defendant did more than simply deny the plaintiff's claim for benefits.”  (Citation omitted;  internal quotation marks omitted.)   Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 05 4002121 (January 13, 2006, Pickard, J.).

As amended, count two alleges that the defendant stalled, delayed and/or refused to diligently process the plaintiff's claim or to properly negotiate settlement of the claim, “all in order to profit from the Plaintiff's vulnerable position” and thus “acted with a sinister intent, and/or an intent of wanton or malicious injury and/or evil motive, and/or the Defendant exhibited a reckless indifference to the interests of others, in particularly the Plaintiff, and/or such defiant behavior is unlikely to be attributable to an honest mistake or mere negligence.”   Taking the allegations as true, for the purposes of a motion to strike, the plaintiff has alleged sufficient facts to support a claim for bad faith.   Therefore, the defendant's motion to strike count two is denied.

With respect to count three, the vast majority of Superior Court decisions have specifically declined to recognize a private cause of action for a violation of CUIPA.   In Smith v. Geico General Ins. Co., Superior Court, judicial district of New London, Docket No. CV 08 5006746 (April 7, 2009, Martin, J.), after a lengthy analysis, this court joined “the majority of Superior Courts in holding that CUIPA does not provide a private right of action.”   Given the absence of any contrary, controlling appellate authority following that decision, this court continues to hold that view and will strike count three of the plaintiff's amended complaint and the corresponding prayer for relief, paragraphs six, seven, eight and nine.

With respect to count four, the Supreme Court has recognized that “a private cause of action exists under CUTPA to enforce alleged CUIPA violations.”   Lees v. Middlesex Ins. Co., 219 Conn. 644, 654, 594 A.2d 952 (1991).  “[A] CUTPA claim based on the public policy embodied in CUIPA must be consistent with the regulatory principles established therein, and ․ the definition of unacceptable insurer conduct ․ reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention.”  (Internal quotation marks omitted.)  Lees v. Middlesex Ins. Co., 229 Conn. 842, 850–51, 643 A.2d 1282 (1994).   Therefore, “[f]or a CUTPA/CUIPA claim to survive a motion to strike ․ the majority of superior court decisions have construed ‘[t]he frequently cited cases of Mead and Lees ․ [to] require that claims of unfair settlement practices under CUIPA [show] ․ more than a single act of insurer misconduct ․ [and] that there must be evidence of misconduct by the insurer in the processing of other policyholders' claims in order to rise to the level of a general business practice.’  “ Smith v. Geico General Ins. Co., Superior Court, supra.

In the present case, the defendant argues that the plaintiff has improperly alleged CUIPA and CUTPA violations in separate counts and that the plaintiff has failed to allege any additional instances of improper conduct to support the conclusion that the defendant's behavior constitutes a “general business practice.”

The plaintiff has cured these deficiencies in his amended complaint.   Count four now includes allegations of a CUIPA violation and cites two other cases against the defendant in support of its conclusion that the defendant's conduct indicates a general business practice.   Construing these allegations in a light most favorable to sustaining their legal sufficiency, the court is satisfied that the plaintiff has properly alleged a CUTPA violation beyond mere legal conclusions and denies the defendant's motion to strike count four.

Finally, as previously discussed, the plaintiff does not object to the striking of count five of his amended complaint.

CONCLUSION

For the foregoing reasons, the court hereby grants the defendant's motion to strike with respect to counts three and five of the amended complaint and denies the motion with respect to counts two and four.   In addition, paragraphs six, seven, eight and nine of the plaintiff's prayer for relief are also stricken.

Martin, J.

Martin, Robert A., J.