Carrie A. Manka v. Allstate Insurance Co. (2013)

RULING RE MOTION TO STRIKE NO. 114

This action arises out of a motor vehicle accident that occurred involving the plaintiff, Carrie A. Manka, and a non-party, Nicole Briscoe, (f/k/a Nicole Manske).   In the present action, the plaintiff seeks uninsured and underinsured motorist benefit claims in accordance with General Statutes § 38a–336 from her insurance company, the defendant, Allstate Insurance Company.

The defendant argues in the present motion that the entire complaint should be stricken because it does not allege that all available insurance coverages have been exhausted.   Specifically, under the facts alleged, The Walt Disney Company and/or ESPN Productions was the tortfeasor's employer and, at the time of the accident, the tortfeasor was within the scope of employment such that Disney and/or ESPN is vicariously liable.   Accordingly, the defendant argues that the complaint lacks the necessary allegation that Disney and/or ESPN's insurance coverage is inadequate or non-existent to fully cover the plaintiff for the alleged injuries.   In response, the plaintiff maintains that she may properly commence an action for underinsured motorist benefits prior to the exhaustion of the tortfeasor's policy.   Additionally, it was argued that, read as a whole, the complaint properly alleges that all applicable policies have been exhausted.

“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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings 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, 253, 990 A.2d 206 (2010).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).

“Insofar as [a] motion to strike is directed [to] the entire complaint, it must ․ fail if any of the plaintiff's claims are legally sufficient.”   (Internal quotation marks omitted.)   Lewis v. Royal Bank of Scotland, PLC, Superior Court, judicial district of Hartford, Docket No. CV 10 6013983 (October 5, 2011, Pellegrino, J.T.R.);   see also Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 [3 Conn. L. Rptr. 135] (1991) (court denied motion to strike directed at entire complaint rather than at selected portions).

The court has reviewed the allegations of the complaint and finds that after construing it broadly and realistically, the implied allegation is that all applicable insurance policies have been or will be, exhausted.   Paragraphs seventeen, eighteen and nineteen allege that the accident occurred during the course of the tortfeasor's employment.   Then, paragraphs thirty-eight and thirty-nine allege that the motor vehicle policy providing coverage for the tortfeasor has been exhausted and thus the defendant is responsible.   Accordingly, the motion to strike the entire complaint is denied.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.