Indalecea Mendoza et al. v. Allstate Insurance Co. (2012)

Memorandum of Decision

This case involves claims arising out of a homeowner's insurance policy issued by the defendant, Allstate Insurance Company to the plaintiffs, Indalecea Mendoza and Carmela Lazarte.   In their first revised complaint dated December 9, 2011, the plaintiffs allege that their home sustained damage during a storm on March 13, 2010.   They claim that the damage was sustained “by wind, a fallen tree and, subsequently by water.”   Although the losses alleged were covered by the policy issued by the defendant, the plaintiffs claim that the defendant has failed to fully compensate them for the losses they sustained.

In their first count, the plaintiffs claim breach of contract by the defendant.   In the second count, they allege a claim for unjust enrichment.   The third count asserts a cause of action based on violations of the Connecticut Unfair Insurance Practices Act (CUIPA).   The fourth count alleges that the violations of CUIPA constitute violations of the Connecticut Unfair Trade Practices Act (CUTPA).

Presently at issue is the defendant's motion to strike the third and fourth counts of the complaint dated January 4, 2012 (# 106.00).   In that motion, the defendant claims that both counts must be stricken “in that said counts fail to state claims upon which relief can be granted.”   In the memorandum of law filed in support of its motion to strike, the defendant claims that the third count must be stricken because there is no private cause of action available under CUIPA and that the fourth count must be stricken claiming that “the CUTPA count cannot survive because Count Three, purportedly sounding in a violation of CUIPA, is legally deficient and inadequate to support a claim of a violation of CUTPA.”   The plaintiffs filed a memorandum of law in opposition to the motion to strike dated March 9, 2012 (# 109.00).

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 (2003).  “A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007).   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 (1997).  “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 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, supra, 294.  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”   (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).  “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.”  (Internal quotation marks omitted).  Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476 (2003).

COMPLIANCE WITH PRACTICE BOOK § 10–41

Practice Book § 10–41 requires that “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

In the present matter, the defendant's motion contains only the naked assertion that the allegations of the third and fourth counts of the plaintiffs' revised complaint “fail to state claims upon which relief can be granted.”   The Appellate Court has held that a trial court cannot grant a motion to strike when the moving party has failed to comply with the requirements of Practice Book § 10–41.   In Stuart v. Freiberg, 102 Conn.App. 857 (2007), the Appellate Court reversed a trial court which had granted a motion to strike a complaint.   The court stated:  “The motion itself failed to set forth separately each claim of insufficiency and failed to specify distinctly the reasons for each claimed insufficiency.   Simply stating that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10–41.”   Id., 862.

The fact that the memorandum of law filed in support of the motion to strike more specifically states the claims of insufficiency will not save the motion to strike.   The claims must be stated in the motion itself.  Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5 (1986).

In their memorandum of law in opposition to the motion to strike, the plaintiffs claim that the defendant's motion was untimely because it was filed more than fifteen days after the plaintiffs' revised complaint dated December 9, 2011, in violation of Practice Book §§ 10–6 and 10–8.   At no time did the plaintiffs claim that the defendant's motion to strike failed to comply with Practice Book § 10–41.   It is clear that a party who fails to raise the issue of non-compliance with Practice Book § 10–41 waives that issue.   Id.;  Stuart v. Freiberg, supra, 102 Conn.App. 861.   Accordingly, the court will consider the merits of the defendant's motion to strike as set forth in the memorandum of law filed in support of their motion.

Third Count—Alleged CUIPA Violations

The third count asserts claims of violations of the Connecticut Unfair Insurance Practices Act (General Statutes § 38a–815 et seq.)  (CUIPA).  The process for determining whether a private right of action is created under a statute is set forth in Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 250 (1996), cert. denied, 520 U.S. 1103 (1997), overruled on other grounds by Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277 (2007).   In Napoletano v. CIGNA Healthcare of Connecticut, Inc., the Supreme Court held that when a statute does not expressly create a private right of action, it will be presumed that the legislature did not intend to create one.   In order to overcome that presumption, the party asserting the existence of the private cause of action must demonstrate that his claims satisfy a three part test.   Under the Napoletano test, the court must examine:  “First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?  ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?”  (Internal quotation marks omitted.)  Rollins v. People's Bank Corp., 283 Conn. 136, 142 (2007);  see also Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 247 (2006).   In order to overcome the presumption that no private right is implied, it must be demonstrated that “no factor weighs against affording an implied right of action and [that] the balance of factors weighs in [the plaintiff's] favor.”  (Internal quotation marks omitted.)   Rollins v. People's Bank Corp., supra, 142.  “In examining these three factors, each is not necessarily entitled to equal weight.   Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [the plaintiff] to bring a private cause of action despite having failed expressly to provide for one.”  (Internal quotation marks omitted.)   Id.

Neither our Supreme Court nor our Court of Appeals has ruled on whether a private right of action exists under CUIPA.   While the Superior Courts that have considered the question are divided, a majority have determined that no private right of action exists.   Szlachetka v. Mullen, Superior Court, judicial district of New Britain, Docket No. CV 02 0513409 (February 25, 2003, Dunnell, J.).   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 no private cause of action under CUIPA.   See, e.g., Palmieri v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 07 5012326 (January 28, 2009, Tobin, J.);   Watton v. Geico Indemnity Co., Superior Court, judicial district of Hartford, Docket No. CV 08 5018837 (Nov. 13, 2008, Aurigemma, J.);   Union Street Furniture Carpet, Inc. v. The Hartford Financial Services Group, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 4002621 (April 12, 2006, Tobin, J.);   Tomonto v. Progressive Northern Ins. Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 4001543 (March 8, 2005, Tobin, J.);   Fedora v. Worcester Ins. Co., Superior Court, judicial district of New Haven, Docket No. 03 0285288 (September 28, 2004, Tanzer, J.) and Gianetti v. Greater Bridgeport Individual Practice Assn., Superior Court, judicial district of Fairfield, Docket No. CV 02 0396581 (May 28, 2004, Doherty, J.).

A number of Superior Courts has taken particular note of the express private right of action provided under CUTPA and the absence of similar provisions under CUIPA.   1049 Asylum L.P. v. Kinney Pike Ins., Superior Court, judicial district of Hartford, Docket No. CV 02 0816344 (May 30, 2003, Booth, J.) (34 Conn. L. Rptr. 723, 725).   This court finds the reasoning of the majority of Superior Courts to be compelling and, in conformity with its prior rulings on the subject, finds that no private cause of action exists under CUIPA.   Accordingly, the defendant's motion to strike the third count of the plaintiffs' complaint must be and it is hereby granted.

Fourth Count—Alleged CUTPA Violations

In their fourth count, the plaintiffs allege a CUTPA violation under General Statutes § 42–110a.   Specifically, the plaintiffs allege that the defendant “makes a practice of denying homeowner's and other claims without proper justification, and/or make undervalued offers in bad faith.”   The defendant argues in its motion to strike that since the plaintiff does not have a right to maintain a private action under CUIPA, it follows that the plaintiffs cannot state a valid cause of action under CUTPA.   In support of this assertion the defendant relies on Mead v. Burns, 199 Conn. 651, 663 (1986).   This reliance is misplaced.

The Connecticut Supreme Court held in Mead v. Burns, 199 Conn. 651, 663 (1986), that a “private cause of action [exists] under CUTPA to enforce alleged CUIPA violations.”  Id.;  see also H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 441 n.7 (2008) (noting that “[i]n [Mead v. Burns, supra, 199 Conn. 663], the court held that insurance practices are the subject of two regulatory acts, CUIPA and CUTPA, and that a private cause of action exists under CUTPA to enforce CUIPA violations”);  Newton & Associates, Inc. v. Labrasca, Superior Court, judicial district of Hartford, Docket No. CV 03 0828720 (February 4, 2004, Rittenband, J.T.R.) (granting motion to dismiss CUTPA count and holding “[i]t is well-settled law in Connecticut that in a CUTPA claim against an insurance company, the plaintiff must allege and prove the CUIPA claim in order to establish a CUTPA claim”).

Superior Courts have also held, however, that as long as the allegations under CUTPA are sufficient, the CUTPA count may stand, even if the CUIPA count is stricken.   See Palmieri v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 07 5012326 (January 28, 2009, Tobin, J.) (granting motions to strike as to CUIPA count and denying it as to CUTPA count);  Union Street Furniture Carpet, Inc. v. The Hartford Financial Services Group, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 4002621 (April 12, 2006, Tobin, J.);   and Don Beach Movers, Inc. v. Transguard Ins. Co. of America, Inc., Superior Court, judicial district of New London, Docket No. CV 05 4002395 (March 8, 2006, Jones, J.).

The defendant's motion to strike the fourth count is denied.

David R. Tobin, J.

Tobin, David R., J.