Nationwide Mutual Ins. Co. et al. v. Jeffrey Pasiak et al. (2011)

MEMORANDUM OF DECISION MOTION TO STRIKE

INTRODUCTION

The plaintiffs, Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company (hereinafter “Nationwide”) have filed this action seeking a judicial determination in this declaratory action as to whether the plaintiffs owe a duty to defend and indemnify the defendants Jeffrey Pasiak and Pasiak Construction Services, LLC (“Pasiak”) as insurance policyholders in an action which was filed by the defendants Sara Socci and Kraig Socci (Socci Action) against Pasiak.¹  The Socci action resulted in a jury verdict against the defendant Pasiak.

During the ongoing litigation of the Socci action, the plaintiffs filed this declaratory judgment action.   The defendants contend that the plaintiffs were responsible to defend and indemnify them pursuant to the policies.²  The plaintiffs filed a motion for summary judgment as to the issue of defense and this court ruled that the plaintiffs had a responsibility to defend in the Socci action.

The defendants have filed a counterclaim against the plaintiffs in this action.   Specifically, the counterclaim, as revised on February 22, 2011, sets forth twelve counts including, inter alia, breach of implied covenant of good faith and fair dealing, tortious bad faith, equitable estoppel, innocent and negligent misrepresentation, unjust enrichment, intentional infliction of emotional distress, breach of contract, and violations of the Connecticut Unfair Insurance Practices Act (CUIPA) and Connecticut Unfair Trade Practices Act (CUTPA).   In their counterclaim, the defendants make the following broad allegations common to all counts.   The defendants purchased and were insured under various policies issued by the plaintiffs.   The defendants made claims under those insurance policies in relation to litigation arising from an armed robbery that took place at the defendants' home office.  Socci v. Pasiak, supra.   The policies were in effect at all times relevant to the underlying litigation.   The plaintiffs, in their actions in the underlying litigation, failed to appoint independent counsel to represent Pasiak, failed to effectuate prompt and fair resolution of the litigation, failed to engage in good faith settlement negotiations and failed to act in good faith with the defendants as insured.   Further factual allegations pertinent to the instant motion to strike are set forth in more detail below as to each challenged count.

On March 11, 2011, the plaintiffs, Nationwide, filed a motion to strike counts one through nine, eleven and twelve of the defendants' revised counterclaim.   The plaintiffs move to strike on the ground that the defendants have “failed to properly plead these claims.”   On April 8, 2011, the defendants filed an objection and memorandum in opposition to the motion to strike.   On May 12, 2011, the plaintiffs filed a reply memorandum in support of their motion to strike.   The motion was heard by the court on September 15, 2011.

DISCUSSION

General Standard

“[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ․ A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.”  (Internal quotation marks omitted.)   JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008);  see also Practice Book § 10–39.  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).  “A motion to strike ․ 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 (1977).  “[The court] construe[s] 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.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117–18, 889 A.2d 810 (2006), American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

COUNT ONE

In the first count of their counterclaim, the defendants assert a cause of action for breach of the implied covenant of good faith and fair dealing.   The plaintiffs contend that the defendants have failed to set forth factual allegations that would constitute “bad faith” and thus the claim is legally deficient.

“[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 16, n.18, 938 A.2d 576 (2008).  “To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs' right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ․ Bad faith, in general, implies both actual or constructive fraud, or a design to mislead or deceive another, 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, but by some interested or sinister motive.”  (Citation omitted;  internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 563–64, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).  “The definition [of good faith] requires not only honesty in fact but also ‘observance of reasonable expectations of the contracting parties as they presumably intended.’  “ Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988).  “Whether the party has acted in bad faith is question of fact, subject to the clearly erroneous standard of review.”  Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837, 3 A.3d 992 (2010).   An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements:  “(1) that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits;  (2) that the defendant engaged in conduct that injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract;  and (3) that when committing the acts by which it injured the plaintiff's right to receive under the contract, the defendant was acting in bad faith.”   Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 095028391 (October 19, 2009, Domnarski, J.) (2009 Ct.Sup. 17328)

The first count sets forth a litany of facts regarding the duty to defend and duty to indemnify.   The facts as alleged by Pasiak include more than the refusal of Nationwide to settle the action or negotiate settlement in good faith.   The facts outline a long history of the alleged behavior of Nationwide in failing to recognize a conflict with representing Pasiak and thereafter failing to represent him in good faith during the course of the trial as they were informed of the possibility of not only a verdict against Pasiak but the inability to properly defend him based upon facts conveyed by counsel appointed by Nationwide.   There are also allegations concerning the failure of Nationwide to provide Pasiak with his policies and the description for coverage which may have had an impact upon his ability to and Nationwide's obligations during the various phases of the Socci trial.   The count alleges that Nationwide refused to inform Pasiak as to whether it was denying coverage or operating under a reservation of rights.   Further, the counterclaim alleges that Nationwide is aware of the jury verdict and refuses any coverage.   Other cases which have allegations that are similar and not as voluminous as the present case have found the claim to be legally sufficient.   In Burnside v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 343068 (Sept. 18, 1997, Melville, J.) the court found that a claim alleging that the defendant committed unfair settlement practices by not attempting in good faith to effectuate prompt, fair, and equitable resolution of the plaintiff's claim for basic reparations benefits and compelled the plaintiffs to institute litigation to recover the amount due under the insurance contract;  and failed to reasonably, promptly and adequately investigate the plaintiff's claim for basic reparations benefits.   There are an abundance of facts and scenarios that offer a sufficient basis to find favorably for the defendants/counterclaim plaintiffs on a claim for a breach of the implied covenant of good faith and fair dealing.   Thus, the court finds that Pasiak has stated a legally cognizable claim in Count one and the motion to strike is denied.

COUNT TWO:  TORTIOUS BAD FAITH

In the second count of their counterclaim, the defendants assert a cause of action of tortious bad faith against the plaintiffs.   The plaintiffs move to strike on the ground that the defendants have failed to properly plead the claim.   Specifically, the plaintiffs argue it is legally insufficient because it is not a recognized cause of action in Connecticut as it is merely duplicative of the defendants' first count which alleges a breach of the implied covenant of good faith and fair dealing.   The tortious bad faith claim in the second count is duplicative of the defendants' first count in that they have similarly asserted that the plaintiffs breached its duties in bad faith.

Connecticut “recognizes a common-law duty of good faith and fair dealing between an insurer and its insured.”  Carford v. Empire Fire and Marine Ins. Co., 94 Conn.App. 41, 46, 891 A.2d 55 (2006).   In order to enforce this duty in cases of alleged breach, it is well settled that our courts allow “an independent cause of action in tort arising from an insurer's common law duty of good faith.”  Buckman v. People Express, Inc., 205 Conn. 166, 170, 530 A.2d 596 (1987).   Accordingly, “Connecticut caselaw provides that where an insurer denies coverage two causes of action arise;  one on the contract and, if it is alleged that the insurer has acted in bad faith, one in tort.”   Celentano v. Home Ins. Co., Superior Court, judicial district of Ansonia Milford, Docket No. CV 91 034227 (November 6, 1992, McGrath, J.) (7 Conn. L. Rptr. 567), citing Buckman v. People Express, Inc., supra, 205 Conn. 166.   However, each of these causes of action spring from the basis of the contractual relationship between the insured and insurer since “no claim of breach of the duty of good faith and fair dealing will lie for conduct that is outside of a contractual relationship.”  Carford v. Empire Fire and Marine Ins. Co., supra, 94 Conn.App. 46.   Thus, the “independent cause of action in tort arising from an insurer's common law duty of good faith,” Buckman v. People Express, Inc., supra, 205 Conn. 170, is simply a tortious cause of action arising from the bad faith breach of the implied covenant of good faith and fair dealing.   A cause of action labeled as “breach of the implied covenant of good faith and fair dealing” is the same cause of action as one labeled “tortious bad faith.”   See Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 111, 971 A.2d 17 (2009) (it is “not the label ․ placed on each count of [the] complaint that is pivotal but the nature of the legal inquiry”).

Our Supreme Court has acknowledged that it “has tended to use the terms ‘bad faith,’ ‘lack of good faith’ and ‘breach of the covenant of good faith and fair dealing’ interchangeably.”  PSE Consulting, Inc. v. Frank Mercede and Sons, Inc., 267 Conn. 279, 296 n.7, 838 A.2d 135 (2004).   Furthermore, courts have generally not differentiated in their analyses in claims brought under each of these various terms.   See Buckman v. People Express, Inc., supra, 205 Conn. 170 (referring to allegations of breach of good faith and fair dealing as “claim of bad faith”);  Pettibone Tavern v. Onebeacon Midwest Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 10 6006711 (October 28, 2010, Domnarski, J.) (analyzing a count asserting breach of “good faith and fair dealing” as common-law bad faith claim).   At least one Superior Court has expressly found that separate causes of action asserting bad faith and breach of the implied covenant of good faith and fair dealing are indistinguishable.   See Lincoln General Ins. Co. v. Rodriguez, Superior Court, judicial district of New Britain, Docket No. CV 08 5007513 (November 17, 2010, Swienton, J.) (“The second count which claims bad faith conduct ․ is duplicative of the third count for breach of the covenant of good faith and fair dealing”).³

Further evincing the repetitive nature of the counterclaims, the defendants' separate claims for breach of the implied covenant of good faith and fair dealing and tortious bad faith essentially mirror each other in substance.   For example, the defendants' first count alleges that the plaintiffs “breached the implied covenant of good faith and fair dealing with its' insured.”   The defendants' second count similarly states that the plaintiffs “breached its' obligations under the law to act fairly and in good faith with its insured.”   Both counts then go on to assert specific facts as to how the good faith “implied covenant” or “obligation under the law” was breached.   Specifically, both counts include, inter alia, the same allegations that the plaintiffs “committed unfair settlement practices by not attempting in good faith to effectuate prompt, fair and equitable resolution of the plaintiffs' claim, ․” “failed to negotiate with the plaintiffs[in the underlying suit] in good faith,” “failed to make a good faith offer of settlement ․” and “failed to make a good faith offer in light of the court's prejudgment remedy of $400,000.”   The fact that the substance of the allegations in count one and two conform to each other closely is no surprise given that the “obligation under the law,” as stated in its second count, is that insurers comply with the implied covenant of good faith and fair dealing with the insured.

The defendants argue that the “distinction is that the remedies available for breach of contract are limited to consequential damages, and remedies for tortious bad faith include damages for mental anguish and punitive damages.”   This claim is without merit.   In the insurance context, extracontractual damages are available in a claim for breach of the implied covenant of good faith and fair dealing.   See Barry v. Posi–Seal International, Inc., 40 Conn.App. 577, 584–87, 672 A.2d 514, cert. denied, 237 Conn. 917, 676 A.2d 1373 (1996) (court noted that punitive damages are ordinarily not available for breach of implied covenant of good faith in commercial contracts but that in extending such damages to breach of the implied covenant in insurance contract, courts are motivated by policy considerations particular to the insurer/insured relationship).   Thus, any punitive remedies that would be available to the defendants in their second count are also available to them as set forth in their first count.

Thus, as pled, the defendants' claim of a breach of the implied covenant of good faith and fair dealing and separate claim for tortious bad faith are duplicative.   Although the counts are labeled under different names, the causes of action are the same.   The claim of tortious bad faith merely adds a new label to a breach of the implied covenant of good faith and fair dealing in bad faith, and is not a separate cause of action.   However, the plaintiffs, in asserting that count two is improperly pled as duplicative, brought their claim in a motion to strike.⁴

“There is no explicit appellate authority on the issue of the proper vehicle for the elimination of duplicative claims ․ A split of authority exists within the Superior Court regarding how the duplication of claims should be addressed ․ [A] majority of Superior Court cases ․ [have] held that [a] request to revise, and not a motion to strike, is the proper procedural device for deletion of duplicative pleadings ․” (Internal quotation marks omitted.)   Wirth v. Progressive Casualty Ins. Co., Superior Court, judicial district of New Britain,, Docket No. CV 09 5012844 (January 14, 2010, Swienton, J.) (49 Conn. L. Rptr. 211) (collecting cases).  Practice Book § 10–35 makes clear that the motion to strike is improper because a challenge based upon needless repetition in pleadings simply seeks clarification of the complaint, more appropriate for a request to revise;  it does not though challenge the inherent legal sufficiency of the counts.   See Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (“the proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike”).

Accordingly, the plaintiff's motion to strike count two of the defendants counterclaim and corresponding prayer for relief in paragraph six is denied.

COUNT THREE:  EQUITABLE ESTOPPEL

The defendants assert in their third counterclaim that the plaintiffs' actions “were intended to induce [the defendants'] confidence in certain beliefs ․” These include, inter alia, that the plaintiffs “would negotiate a settlement of [the defendants'] claim of good faith ․ would appoint truly independent counsel ․ [and] would act in accordance with the implied covenant of good faith and fair dealing in relation to any issues that arose pursuant to his insurance policies.”   The defendants further claim that it “adopted a position and acted in reliance on such beliefs ․ [and] was thereby injured and suffered damages.”   The plaintiffs move to strike the claim of equitable estoppel because it is improperly pled.

“Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity from asserting rights which might perhaps have otherwise existed ․ as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse.”  (Internal quotation marks omitted.)  Boyce v. Allstate Ins. Co., 236 Conn. 375, 383–84, 673 A.2d 77 (1996).  “Estoppel always requires proof of two essential elements:  the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief;  and the other party must change its position in reliance on those facts, thereby incurring some injury ․ Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.”  (Citations omitted;  internal quotation marks omitted.)  Id., 385–86.

Although the defendants have asserted a cause of action for equitable estoppel in their third count, under Connecticut law “estoppel is generally not considered a cause of action, but rather is pleaded as a special defense.”   Covey v. Comen, 46 Conn.App. 46, 48–49 n.5, 698 A.2d 343 (1997) (treating defendants' cause of action asserting estoppel as a special defense rather than as a counterclaim because estoppel improperly pleaded as a cause of action);  see also Dickau v. Glastonbury, 156 Conn. 437, 242 A.2d 777 (1968) (Internal quotation marks omitted.) (“equitable estoppel is available only for protection and cannot be used as a weapon of assault”).   In recognition of this pleading procedure, several Superior courts have stricken counts of equitable estoppel for improperly attempting to set forth a cause of action.   See, e.g. GMAC Mortgage, LLC v. McCormack, Superior Court, judicial district of New London, Docket No. CV 08 5009019 (September 12, 2011, Devine, J.) (“the defendants' counterclaim for equitable estoppel fails to state a cause of action for affirmative relief from the plaintiff and consequently, must be stricken”);  Bowen v. Bienas, Superior Court, judicial district of New London, Docket No. CV 563213 (April 1, 2003, Hurley, J.T.R.) (granting motion to strike because “equitable estoppel does not constitute a proper cause of action”).

Similarly, the defendants here have improperly attempted in their third count to plead equitable estoppel as a cause of action.   As equitable estoppel is to be properly raised as a special defense, and not an affirmative claim for relief, the defendants' claim for equitable is improperly pled.   The plaintiffs' motion to strike count three of the defendants' counterclaim is granted.

COUNT FOUR:  FRAUDULENT MISREPRESENTATION

Count four of the Revised Counterclaim alleges a cause of action for fraudulent misrepresentation.   This action requires 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.  Centimark Corp. v. Village Manor Associates, Ltd. Partnership, 113 Conn.App. 509, 522, 967 A.2d 550, cert. denied 292 Conn. 907, 973 A.2d 103 (2009).   All of these elements must be found to exist to have a cause of action for fraudulent misrepresentation.  H & L Chevrolet v. Berkeley Ins. Co., 110 Conn.App. 428, 440, 955 A.2d 565 (2008).

The factual allegations from the initial paragraphs of the Revised Counterclaim are incorporated into this count.   They include allegations that Mr. Pasiak informed the plaintiff that he had a home office and wanted to purchase coverage for the home office that covered all possibilities, that he had an insurance audit to provide for this coverage and that he received coverage at an additional premium which he paid.  (Paragraphs 8, 9, and 14.)   The defendant further alleges that Nationwide refused to indemnify and provided a vague reservation of rights letter to the defendant.   The defendants also alleged that acts after the reservation of rights letter including their failure to appoint independent counsel and enter into good faith settlement negotiations all contributed to the fraudulent misrepresentation.   The allegations in Count four are specific to these claims but are also expanded by the general factual allegations such that there are sufficient allegations as to the allegation of false statements of the plaintiff about the coverage and thereafter the representation which were relied upon by the defendants.

Given the nature of the factual allegations in this count, the motion to strike count four is denied.

COUNT FIVE:  NEGLIGENT MISREPRESENTATION

Nationwide states that the defendants have failed to adequately state a cause of action for negligent misrepresentation in count five because they pled a bald assertion as to the representations of Nationwide with no supporting facts.   Nationwide also contends that there is no allegation that Pasiak's reliance on any misrepresentations by the plaintiffs was reasonable or justified.   In particular, the plaintiffs contend that there are no allegations to support a finding that the defendants relied upon a representation of the plaintiffs.   The defendants assert that the pleadings provide a prima facie case of negligent misrepresentation and simply alleges the same facts in the memorandum in opposition to the motion to strike.

“The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977):  One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 143–44, 2 A.3d 859 (2010).  “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result ․ Whether evidence supports a claim of ․ negligent misrepresentation is a question of fact.”  (Internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 501, 977 A.2d 228, cert. granted on other grounds, 293 Conn. 935, 981 A.2d 1080 (2009).

In the present case, the defendants allege in the Revised Counterclaim that Nationwide engaged in several representations which amount to a cause of action for negligent misrepresentation including;  (1) that Pasiak had purchased Office Premises liability coverage of all possibilities arising out of the home office, (2) that the policy was effective from April 19, 2006 to March 27, 2007;  (3) that it appointed independent counsel to defend Mr. Pasiak in the underlying Socci action;  and (4) it engaged in good faith settlement negotiations.   The allegations as set forth in count five refer in part to the claim that the defendants believed the plaintiffs provided insurance coverage for his home office that would address any possibility.   Count five alleges that although Pasiak was under the belief he had coverage because of the overbroad language of all possibilities, this was not so.   Mr. Pasiak relied upon the coverage and sent a notice to the company of the events in question in order to engage their assistance including appointing counsel and indemnifying him.   The plaintiffs refused to cover and thereafter represented the defendants with a reservation of rights.   The defendants contend they relied upon the representations that they would be protected for all possibilities.   These allegations when viewed in the entire Revised Complaint provide sufficient allegations for a cause of action.

Therefore, the motion to strike count five is denied.

COUNT SIX:  INNOCENT MISPREPRESENTATION

In count six of their Revised Counterclaim, the defendants allege a cause of action for innocent misrepresentation.   The plaintiffs argue that this claim is improperly pled and should be stricken because it fails to plead any representation of material fact by the plaintiffs that was made for the purpose of inducing the defendants' purchase.   The defendants counter that they have sufficiently pled a claim for innocent misrepresentation as they have alleged untrue representations by the plaintiffs regarding the applicability of office premises liability coverage and appointment of independent counsel in the underlying action.

Connecticut courts have “long recognized liability for innocent misrepresentation.   The elements of this cause of action are (1) a representation of material fact, (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages.”  (Internal quotation marks omitted.)  Matyas v. Minck, 37 Conn.App. 321, 333, 655 A.2d 1155 (1995).⁵  “A person is subject to liability for an innocent misrepresentation if in a sale, rental or exchange transaction with another, [he or she] makes a representation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it ․ even though it is not made fraudulently or negligently.”   (Internal quotation marks omitted.)  Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997).

The defendants make several allegations related to their insurance policy transaction with the plaintiffs, including the following:  “Mr. Pasiak informed Nationwide that he had an office in his home, that he wanted to purchase coverage for the home office and that he wanted coverage for all possibilities ․ Nationwide was aware that Mr. Pasiak had a home office and had specifically engaged in an ‘insurance audit’ to provide home office coverage to Mr. Pasiak for all possibilities.”  “On or about March 1, 2006 and June 7, 2006, Mr. Pasiak and/or Pasiak Construction Services, LLC paid the entire premium for the Office Premises coverage for the full policy period from April 19, 2006 to March 27, 2007.”  “On or about March 26, 2006, Nationwide renewed Mr. Pasiak's policies ․ Nationwide sent Mr. Pasiak a Personal Umbrella Policy Declaration ․ which indicated that Office Premises coverage up to $300,000 existed for the policy period from April 19, 2006 to March 27, 2007.”

Specifically pursuant to their counterclaim for innocent misrepresentation in count six, the defendants furthermore allege the following:  The plaintiffs “represented that Mr. Pasiak had purchased office premises liability coverage for all possibilities arising out of the home office he maintained ․ [and] that the office premises liability coverage was effective during the policy period from April 19, 2006 to March 27, 2007 ․” The defendants contend in the factual allegations that in providing the request to cover for all possibilities, the plaintiff engaged in an “insurance audit” so that it could provide the coverage.  (Revised Counterclaim, ¶ 9.)   The factual allegations indicate that Nationwide did provide the insurance coverage and a renewal of all of the policies thus satisfying the request of Mr. Pasiak that all possibilities be covered.   In sending the notice of the events and requests for representation noted in the factual allegations it was obvious that the defendants relied upon the insurance coverage that they had requested and received.   The plaintiff provided a Personal Umbrella Policy Declaration for coverage.  (Revised Counterclaim ¶ 13.)   The defendants “justifiably relied” upon the providing of coverage for the home office.

However, the defendants have not sufficiently alleged that those representations were made for the purpose of inducing the “sale, rental or exchange transaction” with the plaintiffs.   For example, the defendants allege that the plaintiffs “represented that Mr. Pasiak had purchased office premises liability coverage for all possibilities arising out of the home office he maintained.”   Even in the light most favorable to the plaintiffs, this pleading suggests that the alleged misrepresentations occurred after the purchase of the insurance policies, rendering it impossible to have influenced or induced the defendants in their prior purchase.   Also, the defendants allege that the “representations were made for the purpose of inducing Mr. Pasiak to rely thereon.”   However, the representation must be for the purpose to induce the defendants into their purchase, not simply to vaguely “rely thereon” for unspecified reasons.   There is simply no allegation which tends to show that the plaintiffs made any representation of material fact “for the purpose of inducing the purchase ”;  a necessary element to sufficiently allege an actionable claim of innocent misrepresentation.  (Emphasis added.)  Matyas v. Minck, supra, 37 Conn.App. 333.

Thus, these factual allegations are insufficient to allege any purported connection or nexus between the alleged misrepresentation by the plaintiffs, and the defendants' inducement to enter into a purchase or exchange transaction with the plaintiffs for their insurance policies.   The motion to strike count six is granted.

COUNT SEVEN—UNJUST ENRICHMENT

In count seven, Pasiak alleges that he made payments to Nationwide as part of the policies for Homeowner, Umbrella and Automobile coverage.   He further alleges that Nationwide has benefitted from the failure to indemnify and that such is to his detriment.   Thus, Pasiak contends that Nationwide has unjustly benefitted from the payments.

Nationwide contends that the count is deficient because there is an action for a breach of written contract which cannot be pled in conjunction with a claim for unjust enrichment.   Pasiak contends that it is proper to allege as an alternative count, a cause of action for breach of contract.   In particular, Pasiak argues that the count for unjust enrichment does not include within the allegations a claim that there is a breach of contract and therefore in this form it is proper.

The claim for unjust enrichment in count seven incorporates the allegations in paragraphs 1 to 111.   None of these paragraphs specifically allege a breach of contract although not surprisingly they refer to the policies and agreement of the parties.

“It has long been established under Connecticut law that [p]laintiffs seeking recovery for unjust enrichment must prove:  (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  Data–Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 126, 958 A.2d 195 (2008).   Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.”  (Internal quotation marks omitted.)  Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

Count seven alleges that “Nationwide benefited from Mr. Pasiak's payments pursuant to the policies” ․ “Nationwide unjustly failed to compensate Mr. Pasiak for the benefits to which he was entitled, namely, coverage under the claim.” and “Nationwide would be unjustly enriched if it were permitted to avoid its duty to defend and indemnify.”  (Revised counterclaim ¶¶ 112, 113 and 116.)   None of these paragraphs contain a claim that there is a breach of contract.   The defendants rely upon the case of The Final Cut, LLC v. Sharkey, Superior Court, judicial district of Stamford, Docket No. CV 085007365 (May 5, 2009, Adams, J.) in support of their position that the existence of a breach of contract claim in a complaint that also contains a claim for unjust enrichment is not a basis by itself to strike the claim for unjust enrichment when the count itself does not incorporate the claim for breach of contract.   In The Final Cut, the plaintiff alleges that there was a breach of contract but it was not incorporated in the claim to support a cause of action for unjust enrichment.   In the present action, Pasiaks' Revised Counterclaim does not include within count seven, the count alleging a breach of contract.   This count is noted as count ten herein and thus not a part of count seven that is addressed herein.   In following the decision of Judge Adams in The Final Cut, there is a distinction which would permit the pleading of an entirely separate count for unjust enrichment that does not rely upon the allegations of a breach of contract.   Thus in the present action, the cause of action for unjust enrichment is sufficiently pled without including a breach of contract claim and the motion to strike count seven is denied.

COUNT EIGHT—INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In order to maintain a cause of action for Intentional Infliction of Emotional Distress “[i]t must be shown;  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.  (Internal quotation marks omitted.)  Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003) “Whether a defendants' conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.”  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”  (Internal quotation marks omitted.)  Little v. Yale University, 92 Conn.App. 232, 239, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).   Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.  Appleton, Id. at 210–11.

The allegations of the Pasiak defendants in count eight is that the failing to settle the underlying legal action in Socci v. Pasiak, and in making an offer for settlement in the amount of $15,000 caused intentional infliction of emotional distress.   These facts show a disagreement between Pasiak and Nationwide as to how to resolve the matter and what is the proper amount of settlement.   In alleging that the acts of the plaintiffs constitute a cause of action for intentional infliction of emotional distress, the Carrol court determined that a poor investigation that targeted the plaintiff and thereafter made findings that he purposefully started the fire was not sufficient to satisfy the cause of action for intentional infliction of emotional distress and therefore the cause of action could not stand.   These specific allegations of deficient offers for settlement fall short of providing a legally sufficient claim of intentional infliction of emotional distress.   See Ormsby v. Nationwide Mutual Fire Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 99 0429984 (May 25, 2000, Licari, J.).

The motion to strike count eight is granted.

COUNT NINE:  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The defendants have also alleged that the actions of the plaintiffs caused negligent infliction of emotional distress.   This cause of action requires that the defendants allege facts to support the following elements:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., supra, 262 Conn. 433.

A claim for negligent infliction of emotional distress requires facts that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress, and that distress, if it were caused might result in illness or bodily harm.  Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 122 (2010).   Therefore, the claim of negligent infliction of emotional distress is based on Nationwide's conduct toward the plaintiffs and whether such conduct caused emotional distress that was severe enough that it might cause illness or bodily harm.

This claim is strictly based on Nationwides' conduct toward Pasiak relating to the manner in which it conducted its investigation of the insurance claim on the action from the Soccis and whether it negligently caused Pasiak direct harm.

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific that the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that their behavior would likely cause harm of a specific nature i.e. emotional distress likely to lead to illness or bodily harm.”  (Internal quotation marks omitted.)  Stancuna v. Schaffer, supra, 122 Conn.App. 490.

In count nine of the Revised Counterclaim, Pasiak alleges some of the same facts as alleged for intentional infliction of emotional distress.   The facts include the failure to enter into reasonable settlement with the Socci defendants.   This allegation continues to state that because Nationwide would not settle it knew that the defendants would be exposed to trial and therefore to possible personal liability.   The facts are further strengthened by the allegation that Nationwide has filed this declaratory judgment contending not only that it is not responsible for any finding of liability but also that it has no obligation to defend this action.   Couple this with the allegations that Nationwide would not offer as settlement a figure that came anywhere close to the prejudgment remedy amount and the claim for negligent infliction of emotional distress has provided sufficient facts to be decided by a jury.   The claims in count nine are based upon the conduct of Nationwide towards Pasiak.   The claim is not based on his interests under the insurance policy but more so on how the conduct of the agents of Nationwide have affected him, that is whether he will be responsible for payment of defense or any judgment.   These allegations logically lead to the next claims of Pasiak that the actions caused an unreasonable risk of causing distress and that the conduct did cause illness or bodily harm.  (Counterclaim ¶¶ 117, 118, 119.)

The facts in count nine provide a sufficient basis to support a claim for negligent infliction of emotional distress and the motion to strike count nine is denied.

COUNT ELEVEN AND COUNT TWELVE—CUIPA AND CUTPA

CUIPA

In count eleven of their counterclaim, the defendants allege that the plaintiffs committed unfair and deceptive acts and practices in the business of insurance in violation of a duty imposed by statute, specifically the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a–815 et seq.   The plaintiffs argue that the defendants' CUIPA claim is improperly pled and should be stricken because that statute does not provide for a private cause of action.

The defendants claim that the plaintiffs violated CUIPA because, inter alia, they (1) “misrepresented the benefits, advantages, conditions or terms of the policies”;  (2) “failed to act with reasonable promptness to settle or otherwise resolve the claims in the underlying action”;  (3) “failed to affirm or deny coverage of claims within a reasonable time”;  (4) “not attempting in good faith to effectuate prompt, fair and equitable settlement of the claim in which liability had become reasonably clear”;  (5) compelled the defendants “to pursue litigation against Nationwide to recover amounts due under the policy”;  (6) “failed to settle under the Office Premises coverage in order to refuse coverage under other portions of the Policies”;  (7) failed to promptly provide the defendants with a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for “denial of his claim” or the “unreasonably low offer of a compromise settlement.”   As pled, these allegations are based upon, and substantially mirror the language of, General Statutes § 38a–816(6) which prohibits, and defines, unfair insurance settlement practices.⁶

Although our Supreme Court or Court of Appeals has yet to address the issue, the “vast majority of Superior Court decisions have declined to specifically recognize a private cause of action for a violation of CUIPA.” ⁷  Edwards v. Progressive Casualty Ins. Co., Superior Court, judicial district of New London, Docket No. CV 10 6006128 (June 24, 2011, Martin, J.) The reasoning underlying the “consensus of these courts may be summarized as follows:  1) there is no express authority under CUIPA for private causes of action;  2) CUIPA is not ambiguous;  3) the regulatory scheme under CUIPA contemplates investigation and enforcement actions to be taken by the insurance commissioner;  and 4) consequently there is not private cause of action under CUIPA.”  (Internal quotation marks omitted.)   Palmieri v. Nationwide Mut. Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 07 5012326 (January 28, 2009, Tobin, J.) (collecting cases declining to recognize CUIPA private right of action.)

“A number of Superior Courts have taken particular note of the express private right of action provided under CUTPA and the absence of similar provisions under CUIPA ․ Additionally, [a] person who feels that he or she has been harmed by a CUIPA violation is not without remedy, but that remedy needs to be pursued as a CUTPA [claim].”  (Citations omitted;  internal quotation marks omitted.)   Smith v. Geico General Insurance Co., Superior Court, judicial district of New London, Docket No. 08 500 6746 (April 7, 2009, Martin, J.)

Absent any appellate authority to the contrary, the court finds that the reasoning of the majority view of the Superior Courts compelling in finding that CUIPA does not provide a private cause of action.   Thus, the motion to strike count eleven is granted.

CUTPA

The defendants, in count twelve of their counterclaim, further allege a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110 et seq.   CUTPA “provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).

In count twelve, the defendants incorporate the allegations common to all counts, as well as its CUIPA allegations in count eleven.   It further alleges that these violations, (1) “offend public policy;” and (2) “were intentional, immoral, and unscrupulous, and caused substantial injury to the defendants.   The defendants claim that the provisions of CUTPA were violated due to, inter alia, the plaintiffs' “breach of the Connecticut Unfair Insurance Practices Act;  intentional misrepresentations regarding its attempt to engage in good faith settlement negotiations;  ․ failure to attempt in good faith a prompt settlement of the plaintiff's claim ․ [and] denial of coverage under the Policies.”   Thus, as alleged, the defendants base its CUTPA count upon its factual allegations of unfair insurance settlement practices proscribed by CUIPA.

In Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986), it was established that CUTPA affords a private cause of action to individuals for alleged unfair insurance practice violations of CUIPA.   However, in order to maintain a CUIPA cause of action under CUTPA, a party must sufficiently allege conduct by the insurer that is proscribed by CUIPA.   In Mead, the Supreme Court concluded that “a CUTPA claim based on an alleged unfair claim settlement practice prohibited by 38a–816(6) required proof, as under CUIPA, that the unfair settlement practice had been committed or performed by the defendant with such frequency as to indicate a general business practice.”  Mead v. Burns, supra, 199 Conn. 663.

This is so because “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 in [§ 38a–816(6) ] 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).   Thus, alleging “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 § 38–816(6).”  Id., 849.   Consequently, in order to properly allege a claim of unfair settlement practices sufficient to survive a motion to strike, a party must allege that the insurer unfairly failed to settle the claim of at least one other insured in order to rise to the level of a general business practice.

Here, the defendants allege in their counterclaim that Nationwide acted in violation of CUIPA in other instances, other than the present settlement dispute.   Specifically, the plaintiffs allege the following:  The present case is not an isolated incident of Nationwide's violation of Connecticut General Statutes § 38a–815 et seq․  Nationwide's conduct alleged in at least two other cases, including Langer v. Nationwide Mutual Insurance Company and Burnside v. Nationwide Mutual Insurance Company, exhibits a pattern of violations so as to constitute a pattern or frequency of similar unfair trade practices.”   The defendants further allege that on or about October 5, 2006, the plaintiffs paid penalties of $12,000 and $18,000 “for violations found during a market conduct examination in Connecticut further evidencing its pattern of unfair trade practices.”

These allegations by the defendants are anything but precise.   For example, the allegations do not assert that the other cases involved unfair settlement practices as defined in § 38a–816(6), or even that the alleged improper conduct involved claims by other insured of the plaintiffs.   Instead the defendants rely on the allegation that the plaintiffs' improper conduct is “not isolated” and “exhibits a pattern or frequency of similar unfair trade practices” to the present case alleging unfair settlement practices.   Nevertheless, when read in the light most favorable to sustaining its legal sufficiency, these factual allegations go beyond a single act of misconduct in its alleged failure to properly settle the defendants' present claim fairly;  a requirement for relief under § 38a–816(6).   A broad reading of the allegations show that the defendants have alleged facts of a business practice, as shown in at least two other cases, of similar conduct to the present case;  a case which involves allegations of improper processing and settlement of claims to an insured as proscribed by CUIPA.   The defendants moreover allege that the plaintiffs' conduct offends public policy and constitutes immoral, oppressive and unscrupulous behavior that violates CUTPA.   Thus, these allegations are sufficient to allege a cause of action for violation of CUTPA based upon an unfair claim settlement practices proscribed by CUIPA.   The plaintiffs' motion to strike count twelve of the counterclaim is denied.

CONCLUSION

For the foregoing reasons, the court grants the motion to strike counts three, six, eight and eleven and denies the motion as to counts one, two, four, five, seven, nine and twelve.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The litigation underlying this declaratory relief action is Socci v. Pasiak, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 08 5006811.   That case resulted in a jury verdict against the defendant Jeffrey Pasiak on February 23, 2010..  FN1. The litigation underlying this declaratory relief action is Socci v. Pasiak, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 08 5006811.   That case resulted in a jury verdict against the defendant Jeffrey Pasiak on February 23, 2010.

FN2. Only Jeffrey Pasiak was named as a defendant in the Socci action.   The home office was Pasiak Construction Services, LLC..  FN2. Only Jeffrey Pasiak was named as a defendant in the Socci action.   The home office was Pasiak Construction Services, LLC.

FN3. It should be noted that a Superior Court has found the claims to be separate.   See Michalek v. Allstate Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 07 5008280 (January 18, 2008, Elgo, J.) (“a bad faith claim, while similar, is distinct form a claim alleging breach of the covenant of good faith and fair dealing”).   The court provided no explicit analysis as to its finding and as noted, other Superior Courts in Connecticut have not similarly distinguished the terms as distinct and independent in their analyses..  FN3. It should be noted that a Superior Court has found the claims to be separate.   See Michalek v. Allstate Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 07 5008280 (January 18, 2008, Elgo, J.) (“a bad faith claim, while similar, is distinct form a claim alleging breach of the covenant of good faith and fair dealing”).   The court provided no explicit analysis as to its finding and as noted, other Superior Courts in Connecticut have not similarly distinguished the terms as distinct and independent in their analyses.

FN4. The court declines the invitation of the plaintiffs to “view Nationwide's motion [to strike] alternatively as a request to revise.”   Practice Book § 10–38 provides “[w]henever any party files any request to revise or any subsequent motion or pleading in the sequence provided in Sections 10–6 and 10–7, that party thereby waives any right to seek any further pleading revisions which that party might then have requested.”   According to the sequence of pleadings provided in Practice Book § 10–6, a motion to strike is regarded as a subsequent motion.   See Practice book §§ 10–6(3)(4).   Although there is appellate authority for treating a request to revise as a motion to strike, see Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078 (1996), that decision does not provide the plaintiffs with authority for the court to do the inverse..  FN4. The court declines the invitation of the plaintiffs to “view Nationwide's motion [to strike] alternatively as a request to revise.”   Practice Book § 10–38 provides “[w]henever any party files any request to revise or any subsequent motion or pleading in the sequence provided in Sections 10–6 and 10–7, that party thereby waives any right to seek any further pleading revisions which that party might then have requested.”   According to the sequence of pleadings provided in Practice Book § 10–6, a motion to strike is regarded as a subsequent motion.   See Practice book §§ 10–6(3)(4).   Although there is appellate authority for treating a request to revise as a motion to strike, see Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078 (1996), that decision does not provide the plaintiffs with authority for the court to do the inverse.

FN5. This cause of action requires a finding that the representation was made for the purpose of inducing the purchase which is different than the elements of negligent misrepresentation noted above..  FN5. This cause of action requires a finding that the representation was made for the purpose of inducing the purchase which is different than the elements of negligent misrepresentation noted above.

FN6. General Statutes § 38a–816(6) provides, in relevant part:  “Unfair claim settlement practices.   Committing or performing with such frequency as to indicate a general business practice of any of the following:  (a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;  (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies;  ․ (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;  (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;  (g) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;  (h) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;  ․ (j) making claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made;  ․ (m) failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;  (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement ․”.  FN6. General Statutes § 38a–816(6) provides, in relevant part:  “Unfair claim settlement practices.   Committing or performing with such frequency as to indicate a general business practice of any of the following:  (a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;  (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies;  ․ (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;  (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;  (g) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;  (h) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;  ․ (j) making claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made;  ․ (m) failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;  (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement ․”

FN7. “Whether CUIPA allows a private cause of action independent of CUTPA remains a open question” H & L Chevrolet v. Berkley Ins. Co., 110 Conn.App. 428, 441, n.7, 955 A.2d 565 (2008)..  FN7. “Whether CUIPA allows a private cause of action independent of CUTPA remains a open question” H & L Chevrolet v. Berkley Ins. Co., 110 Conn.App. 428, 441, n.7, 955 A.2d 565 (2008).

Brazzel–Massaro, Barbara, J.