LLP v. Guarco Construction Company, Inc. (2012)

MEMORANDUM OF DECISION

The defendant, Guarco Construction Company, Inc., moves to strike portions of the first count and the demand for relief, and the second, third, and fourth counts in their entirety.   A motion to strike “admits all the facts well pleaded;  it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings.”  Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).

The plaintiff, Lagano and Persano, LLP, agrees that its claim for attorneys fees arising from the first count, which sets forth a cause of action for breach of an express contract, ought to be stricken.   Otherwise, the court denies the motion to strike the first count and the third and fourth counts which properly assert causes of action for quantum meruit and breach of contract based on an account stated, respectively.

The court grants the motion to strike the second count which purports to set forth a cause of action for “tortious” breach of contract which would afford the plaintiff the remedy of punitive damages.   Punitive damages are ordinarily unavailable for breach of contract.  L.F. Pace and Sons v. Travelers Indemnity Co., 9 Conn.App. 30, 47–48 (1986).   Only where the breach of contract is “founded on tortious conduct” can punitive damages be awarded.  Id., 48.  “[T]here must be an underlying tort or tortious conduct alleged ․ to allow punitive damages to be granted on a claim for breach of contract, express or implied.”  Id. The conduct forming the breach must be “outrageous” and perpetrated “with a bad motive or with a reckless indifference.”  Id.

The second count merely incorporates the allegations of the first count for breach of contract by failing to pay for accounting services and characterizes the nonpayment with the conclusory adjectives “willful and wanton.”   This count is devoid of any particulars which form the factual basis for this legal conclusion.   Absent are allegations supporting outrageous conduct or any malicious motive for nonpayment.   The intentional refusal to pay for services may be based on a genuine, albeit erroneous, belief that withholding such compensation is legally warranted.   The bare assertion of intentional refusal to pay fails to establish “evil motive” or “reckless indifference” to harm to the plaintiff as required by the holding of L.F. Pace and Sons v. Travelers Indemnity Co., supra, 48.

To recapitulate, the motion to strike is granted as to the second count and the demand for attorneys fees and denied as to the remaining counts and claims for relief.

Sferrazza, J.

Sferrazza, Samuel J., J.