Georgia, Inc. dba Pappa's Pizza Restaurant et al. v. James A. Carter et al. (2012)

MEMORANDUM OF DECISION (MOTION TO STRIKE # 118)

Facts

The present action was initiated by service of process by the plaintiffs, Georgia Inc., d/b/a Pappa's Pizza Restaurant, Konstantino Karabetsos and Demetrios Karabetsos, on January 16, 2012.   The present action stems from a dispute regarding an insurance policy procured by the plaintiffs.   In the complaint, it is alleged that Georgia, Inc. is the owner and operator of a pizza restaurant located in Hartford, and Konstantino Karabetsos is a shareholder of Georgia, Inc. In the underlying matter that brought rise to this litigation, Demetrios Karabetsos was alleged to be an owner/operator of the restaurant, as well.   The plaintiffs allege that they were customers of the defendants, James A. Carter (Carter), an insurance agent/broker, and Carter/Pier Insurance Co. (Carter/Pier), the agency by whom Carter was employed.   Through Carter and Carter/Pier, the plaintiffs procured an insurance policy from Utica First Insurance Co. The plaintiffs were under the impression that the insurance policy covered all potential on-premises liability including liability for assault and battery committed on the premises.   On or about October 9, 2010, the plaintiffs were served with a complaint in another matter (hereinafter “underlying matter”) alleging liability for an assault and battery that allegedly occurred on their premises on June 9, 2009.   After delivering to Utica the writ, summons and complaint in the underlying matter, the plaintiffs were informed that liability for assault and battery was not covered under their insurance plan and Utica would not defend the plaintiffs.

As a result, the plaintiffs brought suit against numerous parties, including Carter and Carter/Pier.   Specifically, the plaintiffs allege that Carter was negligent in procuring the plaintiffs the proper insurance plan, advising them as to which insurance to buy, and reviewing insurance documents, among other negligent acts involved with the purchase of the insurance plan.   The plaintiffs allege that Carter/Pier is liable for the negligence of Carter, its employee acting within the scope of his employment.

On April 3, 2012, Carter and Carter/Pier filed an answer and special defenses (No. 104).   On April 25, 2012, the plaintiffs filed a motion to strike two of the Carter and Carter/Pier's special defenses (No. 118).   On May 9, 2012, Carter and Carter/Pier filed an opposition to the motion to strike (No. 122).   On May 14, 2012, the plaintiffs filed a reply brief in support of their motion to strike (No. 125).   Also on May 14, 2012, the court heard oral argument on the motion.

Discussion

“[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.)  Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).  “A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.”   Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).

Here, the plaintiffs seek to strike the defendants' second special defense to count one and second special defense to count two on the ground that they are mere conclusions of law.   The defendants argue that they have properly asserted the defenses and rely on factual allegations contained in the complaint.   In both special defenses, the defendants state:  “Plaintiff failed to serve its complaint within the time permitted under Connecticut General Statutes § 52–577.”

The court must consider whether that content is sufficient to survive a motion to strike.  “[T]he purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.”  (Emphasis added;  internal quotation marks omitted.)  Braffman v. Bank of America Corp., 297 Conn. 501, 519, 998 A.3d 1169 (2010).  “Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.”  (Citations omitted;  internal quotation marks omitted.)  Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).

In the present case, the defendants present bare bones special defenses without stating which facts the special defenses rely upon.   These special defenses fail to apprise the court and opposing counsel of the facts upon which the special defenses are predicated.   The special defenses merely present legal conclusions.

For the foregoing reasons, the court grants the motion to strike the defendants' second special defense to count one and second special defense to count two on the ground that they are mere conclusions of law.

Woods, J.

Woods, Glenn A., J.