Meanachem Gurevitch v. James River Ins. Co. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 115)

Preliminary Statement

This action, brought by Meanachem Gurevitch (“Gurevitch”), against James River Insurance Company (“James River”), alleges a breach of contract, seeks a declaratory judgment and further alleges a breach of the covenant of good faith and fair dealing.   The action arises out of James River's denial of coverage and indemnification and refusal to defend an underlying suit brought against the plaintiff by Wayne Rosado et al., which alleges damages for, among other things, mismanagement of Bradley Gardens, Inc., an incorporated condominium association.¹  James River filed a motion to strike the bad faith claim.   Plaintiff did not file an opposition thereto.   For the reasons set forth below, the motion to strike is GRANTED.

Standard of Review

The role of the trial court in ruling on a motion to strike is test the legal sufficiency of a pleading.  RK Constructors, Inc. v. Fusco Corp, 231 Conn. 381, 384 (1994).   The court must “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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000) (citation omitted;  internal quotation marks omitted).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc. supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Discussion

James River filed a motion to strike Count Two of the complaint, which purports to allege a breach of the implied covenant of good faith and fair dealing, on the basis that the pleading is insufficient as a matter of law.

In Connecticut, an implied duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793 (2000).   It exists and has been recognized to apply to the contractual relationship between an insured and an insurer.  Hoyt v. Factory Liberty Mutual Ins. Co., 120 Conn. 156, 159 (1935);  Verrastro v. Middlesex Insurance Co., 207 Conn. 179, 190 (1988).   The elements of a cause of action which alleges a breach of the implied duty of good faith and fair dealing are as follows:  (1) 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 some or all of those benefits;  and (3) that when committing the acts by which it injured the plaintiff's right to receive benefits he reasonably expected to receive under the contract, the defendant was acting in bad faith.  Franco v. Yale University, 238 F.Sup.2d. 449, 454–55 (D.Conn.2002) citing, Fairfield Financial Mortgage Group, Inc. v. Salzar, No. CV000339752S, 2002 WL 1009809, at *3 (Conn.Super. Apr. 23, 2002).

Here, the motion to strike challenges the sufficiency of the complaint as to this third element.   Our Supreme Court has described “bad faith” as “the opposite of good faith, generally implying a design to mislead or to deceive another.”  Buckman v. People Express, Inc., 205 Conn. 166, 171 (1987).  “Bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ․ it contemplates a state of mind affirmatively operating with furtive design or ill will.”  Id. See also, Habetz v. Condon, 224 Conn. 231, 237 (1992).

Whether bad faith is adequately pled must be determined on a case by case basis.   See, e.g. Uberti v. Lincoln National Life Ins. Co., 144 F.Sup.2d 90, 104 (D.Conn.2001);  Verrastro v. Middlesex Ins. Co., supra, at 190.   However, pleadings that disclose or allege a “mere coverage dispute or mere negligence in an investigation will not demonstrate a breach of good faith and fair dealing.”  Id. The question presented is whether the “facts provable in the complaint would support this cause of action.”  Waters v. Autuori, 236 Conn. 820, 826 (1996).

This court's review of decisions of the trial courts in this state reveal that the majority have held that a plaintiff is required to plead factual specificity as to how the defendant's actions were done in bad faith and in what manner the conduct was done with ill purpose, an intent to defraud or deceive, bad motive or violence.   See, e.g Martin v. Am Equity Insurance Company, 185 F.Sup.2d 162 (D.Conn.2002) (mere conclusory allegations are an inadequate bases for an inference of bad faith);  Brouillard v. United Illuminating Co., Superior Court for the Judicial District of New Haven, Dkt. No. 98–0418595 (June 1, 1999) (Silbert, J.) (allegation that defendant omitted to include its credit reporting policies in service agreement coupled with conclusory allegation that information provided to credit reporting agency was adverse and fraudulent was inadequate);  Crespan v. State Farm Mutual Auto Insurance Co., Judicial District of Litchfield, Dkt. No. 05–4002121 (January 13, 2006) (Pickard, J.) (Despite multiple allegations of improper conduct by the insurer, the complaint did not rise to the level necessary to sustain a claim of bad faith as it lacked any allegation of “some interested or sinister motive or dishonest purpose”);  Liquore v. Assurance Co. Of America, Judicial District of New London, Dkt. No. 01–0124151 (March 19, 2002) (McLachlan, J.) (allegations that the insured failed to act promptly, failed to cover a claim and failed to defend and indemnify, were insufficient as to a claim of bad faith).   This court agrees that such specificity is required.

Here, Count Two incorporates the breach of contract claims brought in Count One. Thereafter, it includes conclusory language that the conduct was intentional and reckless.   There are no separate factual allegations, distinct from those which support the alleged breach of the contract, to support the allegation of intentional or reckless misconduct.   The motion to strike is GRANTED.

SO ORDERED

Kari A. Dooley, J.

FOOTNOTES

FN1. Rosado v. Bradley Gardens, Inc. et al., Dkt. No. X10 CV 09–401929 is pending on this court's docket as well..  FN1. Rosado v. Bradley Gardens, Inc. et al., Dkt. No. X10 CV 09–401929 is pending on this court's docket as well.

Dooley, Kari A., J.