O & G Industries, Inc. v. Litchfield Insurance Group, Inc. et al. (2013)

MEMORANDUM OF DECISION

Before the court are Aon Risk Services Northeast, Inc.'s (1) motion to strike (# 116) counts two, four, six and eight of the plaintiff's revised complaint (# 111);  and (2) motion to strike (# 127) Litchfield Insurance Group Inc.'s apportionment complaint (# 124).   For the reasons that follow, Aon's motion to strike the plaintiff's revised complaint will be granted as to count two, but denied as to counts four, six and eight.   Also, Aon's motion to strike Litchfield Insurance Group Inc.'s apportionment complaint will be denied.

I

FACTS

Following a catastrophic explosion resulting in multiple deaths and injuries, as well as millions of dollars in property damage, the plaintiff, O & G Industries, Inc., filed a revised complaint, on June 27, 2012, against the defendants, Litchfield Insurance Group Inc. (“LIG”) and Aon Risk Services Northeast, Inc. (“Aon”), asserting that the plaintiff had inadequate insurance coverage for a construction projection with Kleen Energy Systems, Inc. (“Kleen”).  The revised complaint alleges the following relevant facts.

On November 30, 2007, the plaintiff and Kleen entered into an “Engineering, Procurement and Construction Agreement” (“EPC Agreement”), in connection with Kleen's development of a power generation facility.   Pursuant to the EPC Agreement, the plaintiff was required to maintain $100 million in liability insurance coverage, in the form of commercial general liability (“CGL”) insurance and umbrella liability insurance.   Under the EPC Agreement, some or all of the required insurance coverage could be provided under a Contractor Controlled Insurance Program (“CCIP”).¹  The plaintiff decided to place the first $50 million of that coverage into a CCIP and to put the remaining $50 million into an umbrella coverage program.

The plaintiff entered into a service agreement with Aon to procure the CCIP (“Aon Service Agreement”).   Under the Aon Service Agreement, the CCIP was to include CGL and excess liability coverages.   The plaintiff also entered into a service agreement with LIG to procure umbrella and excess lines of insurance, including the umbrella insurance which was to be excess of the CCIP (“LIG Service Agreement”).

Aon procured the CCIP, which was composed of one CGL policy and three excess liability policies with limits totaling one-half of the liability coverage required under the EPC Agreement.   The primary layer of the plaintiff's own liability program was issued by Travelers Property Casualty Company of America and provided for $2 million in coverage in excess of the CCIP (“Travelers policy”).   LIG procured an umbrella policy issued by Commerce & Industry Insurance (“AIG policy”) which provided coverage in excess of the Travelers policy, but not for the Kleen project.   LIG also procured an excess liability policy issued by Westchester Fire Insurance Company (“ACE policy”) and additional excess liability policies that provided coverage over the AIG policy (collectively, the “Excess policies”) and were “follow form” to the AIG policy.   However, LIG failed to ensure that the AIG policy had the proper policy endorsement necessary to provide umbrella insurance in excess of the CCIP. As follow form policies, the Excess policies were also deficient in this regard.   As a result, the policies procured by LIG did not provide liability coverage in excess of the CCIP for the Kleen project.²

On February 7, 2010, an explosion occurred at the Kleen project site, causing multiple deaths and injuries, as well as millions of dollars in property damage and project delays (the “Incident”).   In addition to wrongful death and bodily injury lawsuits against the plaintiff and other CCIP participants, some of which have been settled, the plaintiff was forced to pay liquidated delay damages to Kleen in the amount of $44.6 million resulting from the extensive project delays.   Additionally, Kleen has made a demand on the plaintiff for substantial amounts that Kleen allegedly incurred because of the property damage at the project site.   Finally, one of the plaintiff's subcontractors also has sued the plaintiff to recover for alleged substantial property damage losses.   After the Incident, AIG, ACE and the other carriers issuing the Excess policies declined coverage for any claims arising out of the Incident.   Subsequently, the plaintiff learned that the AIG policy and the Excess policies did not include the endorsement necessary to provide umbrella liability insurance coverage in excess of the CCIP.

In order to mitigate the gap in coverage caused by LIG and Aon, the plaintiff was forced to purchase retroactive liability insurance coverage at a cost of $3.85 million.   That coverage is subject to a deductible of $7 million.

The plaintiff alleges that, pursuant to the LIG Service Agreement, and as the plaintiff's agent and broker, LIG had the obligation to ensure that the insurance coverage it placed for the plaintiff satisfied the EPC Agreement's umbrella liability insurance requirements and the plaintiff's requests for coverage.   LIG has denied responsibility for the shortfall in coverage and has blamed Aon for failing to comply with a purported requirement that all of the insurance limits required by the EPC Agreement be provided in a CCIP, and for failing to recognize that the CCIP and the plaintiff's own umbrella/excess policies failed to provide the full limit of required coverage.

The plaintiff also alleges that, pursuant to the Aon Service Agreement, and as the plaintiff's agent and broker, Aon had the obligation to ensure that the CCIP coverage it placed for the plaintiff, along with the plaintiff's own umbrella/excess liability policies satisfied the EPC Agreement's umbrella liability insurance requirements and the plaintiff's requests for coverage.

The plaintiff asserts that, under the EPC Agreement, the required liability coverage could be provided, in part, by the CCIP and, in part, by other policies.   However, the plaintiff alleges, if LIG is correct in its assertion that the EPC Agreement required that the entire limits of liability coverage be provided through a CCIP, then Aon failed to fulfill its obligation to procure that amount of coverage under the CCIP.

According to the plaintiff, had LIG and Aon secured all of the insurance coverage requested by the plaintiff, the delay damages would have been covered and the plaintiff would be fully covered for any liabilities it has already incurred and/or may incur in the future.

The present action is one for breach of contract, negligence, professional malpractice and misrepresentation against LIG, based on its acts and omissions in advising the plaintiff with respect to insurance coverage.   The action is also one for breach of contract, negligence and professional malpractice against Aon, based on its acts and omissions in its role as the plaintiff's broker with respect to the liability coverage procured for the plaintiff.   Counts one and two seek a declaratory judgment;  counts three and four are claims for breach of contract;  counts five and six are claims for negligence;  counts seven and eight are claims for professional malpractice;  and counts nine and ten are claims for misrepresentation and violations of the Connecticut Unfair Trade Practices Act (“CUTPA”) as to LIG, only.

On August 1, 2012, Aon filed the present motion to strike counts two, four, six and eight of the plaintiff's revised complaint.   On September 5, 2012, LIG filed an apportionment complaint against Aon. On September 19, 2012, Aon filed the present motion to strike LIG's apportionment complaint.   All parties filed a variety of responsive pleadings.   Both matters were heard on the April 22, 2013 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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).  “[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 ․ Indeed, pleadings 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, 252–53, 990 A.2d 206 (2010).

B

Analysis1Motion to Strike (# 116)

Aon seeks to strike counts two, four, six and eight of the plaintiff's revised complaint, which seek a declaratory judgment and allege breach of contract, negligence and professional malpractice, respectively.   According to Aon, the plaintiff bases its claims against Aon on two purported assertions by LIG:  (1) that the EPC Agreement required that the entire limits of liability coverage be provided solely through the CCIP, rather than partly under the CCIP and partly under a separate insurance program placed by LIG, and (2) that Aon should have placed the entire $100 million in liability coverage under the CCIP.

Aon notes that, in the revised complaint, the plaintiff expressly disagrees with LIG's interpretation of the EPC Agreement and avers that it was entitled to place only part of the coverage under the CCIP and the remainder under the program that LIG placed.   However, the plaintiff also alleges that, if LIG's interpretation is accepted, then Aon failed to fulfill its obligation to procure that amount of coverage under the CCIP. According to Aon, the plaintiff thus alleges that, even though it hired LIG, not Aon, to place the separate program, Aon nonetheless should have reviewed the policies that LIG placed, realized that LIG had failed to include the necessary endorsements, and taken steps to correct LIG's errors.   Aon asserts that it had no duty to do so.

(a)

Count Two:  Declaratory Judgment

Count two alleges that the liability claims against the plaintiff arising from the Incident exceed the coverage provided for under the CCIP and the Travelers policy, and, if LIG was not responsible for securing the full amount of insurance coverage requested by the plaintiff, then Aon was responsible for doing so.   Aon did not secure the full amount of coverage and, if Aon had done so, the plaintiff would have had enough insurance to cover the full extent of its actual and potential liability arising out of the Incident.   Count two further alleges that Aon has denied or will deny responsibility and, therefore, the plaintiff is entitled to a judgment declaring that Aon is liable to the plaintiff for its actual and potential liability.

Aon moves to strike count two, arguing that the plaintiff cannot obtain a declaratory judgment because it is not testing the parties' rights and responsibilities under an insurance policy or agreement, but rather is seeking money damages for Aon's alleged failure to procure certain insurance.   Aon asserts that the plaintiff's declaratory judgment claim is based on LIG's purported assertion that the EPC Agreement required that the entire limits of liability coverage be provided through the CCIP. Aon argues that, even if such an assertion were true, such an act or omission relating to the actual procurement of insurance does not call for the interpretation of an agreement or insurance provision that can be answered in a judicial declaration.   Rather, it is simply a claim for damages.   Moreover, Aon argues that the count should be stricken because the plaintiff failed to append to its complaint the mandatory good faith certificate required by Practice Book § 17–56(b).

In contrast, the plaintiff argues that it has met all three conditions for the maintenance of a declaratory judgment action.   First, the plaintiff has alleged that it has an interest concerning its rights to reimbursement from Aon for Aon's acts and omissions which caused the plaintiff to incur existing and potential future losses.   According to the plaintiff, this interest is uncertain or in danger of loss.   Second, the plaintiff has alleged that Aon has or will deny its duty to reimburse the plaintiff and, therefore, a substantial dispute exists as to the plaintiff's rights to reimbursement that requires settlement by the court.   Third, the plaintiff argues that its declaratory judgment claim is the only speedy and effective method available to adjudicate Aon's responsibility for the plaintiff's existing and potential future losses.   The plaintiff contends that the extent of its losses is currently uncertain and, if the court does not issue a declaratory judgment, the parties might be forced to relitigate in the event that the plaintiff incurs additional expenses in the future.   Finally, the plaintiff argues that, while it did inadvertently fail to file the certificate of notice, it did comply with the substance of Practice Book § 17–56(b) by joining all interested parties, and, in fact, it filed a certificate of notice on August 14, 2012, thereby removing any procedural barrier to its declaratory judgment claim.

“Whether the court ․ could properly grant declaratory relief ․ is a distinct question, which is properly raised by a motion to strike.”  (Internal quotation marks omitted.)  Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 82, 571 A.2d 153 (1990).

“[D]eclaratory relief is a mere procedural device by which various types of substantive claims may be vindicated.”  (Internal quotation marks omitted.)   Bysiewicz v. Dinardo, 298 Conn. 748, 756, 6 A.3d 726 (2010).  “The purpose of a declaratory judgment action, as authorized by General Statutes § 52–29 and Practice Book § [17–55], is to secure an adjudication of rights [when] there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties ․ [The] declaratory judgment statute provides a valuable tool by which litigants may resolve uncertainty of legal obligations.”  (Citation omitted;  internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747–48, 36 A.3d 224 (2012).   Connecticut's “declaratory judgment statute is unusually liberal ․ [Although] the declaratory judgment procedure may not be utilized merely to secure advice on the law ․ it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”  (Citations omitted;  internal quotation marks omitted.)  Id., 748.  “Implicit in [§ 52–29 and Practice Book § 17–55] is the notion that a declaratory judgment must rest on some cause of action that would be cognizable in a nondeclaratory suit.”  (Internal quotation marks omitted.)  Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003).

“The complaint must state facts sufficient to set forth a cause of action entitling the plaintiff to a declaratory judgment ․ To state a cause of action for such relief, facts showing the existence of a substantial controversy or uncertainty of legal relations which requires settlement between the parties must be alleged.   Ordinarily, there should be an assertion in the pleadings by one party of a legal relation or status or right in which he has a definite interest, together with an assertion of the denial of it by the other party, thus setting forth a substantial dispute.” ³  (Citation omitted;  internal quotation marks omitted.)  Bombero v. Planning & Zoning Commission, 40 Conn.App. 75, 85, 669 A.2d 598 (1996).  “Fully to carry out the purposes intended to be served by [declaratory] judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening.   Even if the right claimed ․ is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct.”  (Internal quotation marks omitted.)   George v. Watertown, 85 Conn.App. 606, 613–14, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004), quoting Sigal v. Wise, 114 Conn. 297, 301–02, 158 A. 891 (1932).

“Accepting as true the allegations in the complaint and all facts provable thereunder, in deciding whether a declaratory judgment action in a given case is appropriate, we allow the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.”  (Internal quotation marks omitted.)  Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).⁴

In the present case, the plaintiff, essentially, is seeking a declaratory judgment that, under the Aon Service Agreement, Aon was contractually obligated to procure insurance on the plaintiff's behalf, that Aon did not obtain proper insurance and that Aon is liable to the plaintiff for losses it has suffered and will suffer as a result.  “[W]hile a trial court is afforded ․ wide discretion to render a declaratory judgment, a court should not entertain an action for a declaratory judgment when an ordinary action affords a remedy as effective, convenient and complete ․” (Internal quotation marks omitted.)   Wittmann Battenfeld, Inc. v. United Refrigeration, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 10 6001611 (September 24, 2010, Pickard, J.).   As the plaintiff's claim is based upon a breach of the Aon Service Agreement, there is no need for this court to declare the rights of the parties because the court's interpretation of the contract under the plaintiff's breach of contract claim will determine the parties' rights and, thus, the breach of contract claim provides immediate and complete relief to the plaintiff.   Therefore, a declaratory judgment is unnecessary and the motion to strike count two is granted.

(5)

Count Four:  Breach of Contract

Aon moves to strike count four, arguing the plaintiff failed to allege a breach of any contractual promise or that Aon made a specific promise to secure the full amount of insurance coverage.   According to Aon, the Aon Service Agreement does not even mention the EPC Agreement, or any fixed amount of coverage to be acquired, let alone an explicit undertaking that such coverage will be placed.   Absent an allegation that Aon specifically guaranteed a particular result and that such a result was not delivered, the plaintiff cannot maintain an action for breach of contract.   Aon contends that the plaintiff's claim sounds in professional negligence rather than contract.

In contrast, the plaintiff first asserts that actions against insurance brokers for failure to obtain insurance may take the form of both negligence and contract claims, and arise out of the same set of facts.   Next, the plaintiff argues that the complaint alleges that Aon had an obligation to understand the plaintiff's insurance needs under the EPC Agreement, request and review documentation ensuring that the plaintiff's insurance needs had been met, and ensure that the CCIP coverage it placed for the plaintiff along with the plaintiff's own umbrella policies satisfied the plaintiff's requests for coverage.   Finally, the plaintiff argues that Aon is inappropriately seeking to transform its motion to strike into a motion for summary judgment by introducing its interpretation of the EPC Agreement and the Aon Service Agreement.

In reply, Aon asserts that the specifically agreed-upon tasks set forth in the plaintiff's memorandum are not enumerated in the Aon Service Agreement and do not exist.   This court notes, however, that neither the EPC Agreement nor the Aon Service Agreement are attached to the revised complaint and, therefore, are not incorporated therein.   See Practice Book § 10–29.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   Accordingly, the court is limited to the facts alleged in the plaintiff's revised complaint.

Count four contains the following allegations.   Under the Aon Service Agreement, Aon promised to develop, recommend, negotiate and place insurance and/or risk financing programs for all CCIP coverages, as well as review the CCIP policies to ensure that they were accurate as to the insurance coverage terms and policy limits that the plaintiff was purchasing, and advise the plaintiff of any errors or required changes to such policies.   Aon was obligated to advise the plaintiff as to how much of the liability limits required under the EPC Agreement should be provided through the CCIP and how much should be provided through other policies.   Aon knew that the EPC Agreement required the plaintiff to secure a minimum amount of umbrella/excess liability insurance and that the plaintiff wanted higher liability insurance limits than were required under the EPC Agreement.   Aon was required to understand the EPC Agreement insurance requirements.   When Aon placed the CCIP coverage for an amount which was less than the total coverage required by the EPC Agreement, it had a contractual and professional responsibility to request and review documentation confirming that the aggregate insurance from CCIP policies and other policies, which the plaintiff had in force, exceeded the EPC Agreement's insurance requirements.   Aon did not request or review such documentation or otherwise satisfy itself that the insurance requirements of the EPC Agreement had been exceeded and met the plaintiff's requests for coverage.

Count four further alleges that the plaintiff believes that, under the EPC Agreement, the required liability coverage could be provided, in part, by a CCIP and, in part, by other policies.   However, the plaintiff alleges, if LIG is correct in its assertion that the EPC Agreement required the entire limits of liability coverage be provided through a CCIP and, therefore, LIG was not responsible for securing the full amount of insurance coverage, then Aon was responsible for securing the entire limits of liability coverage through a CCIP and breached the Aon Service Agreement by failing to do so.   If Aon had not breached the contract, the plaintiff would have had the full amount of coverage necessary to cover the full extent of its actual and potential liabilities arising out of the Incident.

“Connecticut recognizes a cause of action against an insurance agent for failure to obtain insurance under a theory of either professional malpractice or breach of contract.”   Erikson Metals Corp. v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 07 5002467 (March 27, 2008, Gilligan, J.), citing Ursini v. Goldman, 118 Conn. 554, 559–60, 173 A. 789 (1934).   When bringing a claim against an insurance agent for failure to obtain insurance under a breach of contract theory, a plaintiff must allege that he contracted with the insurance agent to obtain a particular result.  Allied Sprinkler & Mechanical Systems, Inc. v. Montpelier U.S. Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 12 6006081 (July 19, 2012, Roche, J.) (54 Conn. L. Rptr. 392).   If “the allegations are couched in terms of the defendant having committed professional negligence in the procuring of the insurance policy,” instead of allegations that “the defendant promised the plaintiff a specific result in obtaining the insurance,” the claim for breach of contract should be stricken.   Savoy Linen Services, Inc. v. USI Ins. Services of Connecticut, Superior Court, judicial district of Fairfield, Docket No. CV 01 5017161 (February 9, 2010, Tyma, J.).

In support of its position, Aon relies on three Superior Court cases.   The first case is Berlin Corp. v. Continental Casualty Co., Superior Court, judicial district of Hartford, Docket No. CV 06 4021653 (November 2, 2006, Wiese, J.) (42 Conn. L. Rptr. 358), in which the plaintiffs brought a multi-count complaint against an insurance company and an insurance broker, alleging various omissions concerning the plaintiffs' purchase of insurance.   The plaintiffs, sellers of alcohol, claimed that the defendants procured an insurance policy that failed to provide liquor liability coverage.  Id. The fifth count of the plaintiffs' complaint alleged that the insurance broker agreed “that it had the ability to recommend the necessary and appropriate insurance coverage to the plaintiffs and that it breached [the] contract by failing to procure liquor liability insurance.”  Id., 360–61.   The court granted the broker's motion to strike the fifth count, concluding that the allegations constituted a professional negligence claim, not breach of contract.  Id., 361.   The court explained that “[a] fair reading of the plaintiffs' amended complaint reveals that the plaintiffs' cause of action hinges not on whether the defendant executed specifically agreed-upon tasks required of it pursuant to a contract, but whether the defendant exercised ordinary care in effectuating the plaintiffs' purchase of insurance.   The complaint states that the defendant contracted that it had the ‘ability to recommend the necessary and appropriate insurance coverage’ not that it contractually guaranteed, as part of the basis of the bargain, to effectuate the purchase of a particular insurance product.   The defendant's statement is merely a recitation that the defendant will exercise the skill and judgment common to practitioners of its trade.”  Id.

Next, Aon relies on DeCrescenzo v. CPM Ins. Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5010892 (December 19, 2007, Cosgrove, J.) [44 Conn. L. Rptr. 679], in which the plaintiff, a restaurant owner, brought an action against the defendant, an insurance broker and agent, for failure to obtain liquor liability insurance.   The complaint alleged that the defendant met with the plaintiff and “filled out applications for liquor liability insurance and general liability insurance for the business.  [The plaintiff] informed [the defendant] of his anticipated insurance needs, including the need for liquor liability coverage, and [the defendant] agreed to initiate the process by which [the plaintiff] could apply for and obtain the desired insurance.”  Id. Thereafter, the plaintiff was sued and reported the potential claim to the defendant.  Id. “[The plaintiff] then learned that [the defendant] had never obtained liquor liability coverage for the bar.”   Id. The court granted the defendant's motion to strike the breach of contract claim, reasoning that the allegations revealed only that the defendant “agreed to assist [the plaintiff] with the insurance application process;  there is no allegation that [the defendant] guaranteed the provision of insurance or any other specific result.”  Id. In reaching its conclusion, the court relied on Berlin Corp. v. Continental Casualty Co., supra, 42 Conn. L. Rptr. 358.  DeCrescenzo v. CPM Ins. Services, Inc., supra.

Finally, Aon cites to Savoy Linen Services, Inc. v. USI Ins. Services of Connecticut, supra, Superior Court, Docket No. CV 01 5017161, in which the plaintiffs brought a multi-count complaint against the defendant, an insurance agent, alleging that the defendant failed to procure an insurance policy naming the proper insured and having sufficient coverage and limits.   Specifically, the plaintiffs alleged that the defendant agreed to procure appropriate insurance and that the defendant breached the agreement by failing to procure an insurance policy under which they would receive appropriate amounts to compensate them.  Id. The court granted the defendant's motion to strike the breach of contract claim, reasoning that the allegations did not expressly allege, and could not be construed as alleging, that the defendant promised the plaintiff a specific result in obtaining the insurance.  Id. In reaching its conclusion, the court relied on Berlin Corp. v. Continental Casualty Co., supra, 42 Conn. L. Rptr. 358, and DeCrescenzo v. CPM Ins. Services, Inc., supra, 44 Conn. L. Rptr. 679.  Savoy Linen Services, Inc. v. USI Ins. Services of Connecticut, Inc., supra.

The present case, however, is more analogous to Erikson Metals Corp. v. McManus, supra, Superior Court, Docket No. CV 07 5002467, and Allied Sprinkler & Mechanical Systems, Inc. v. Montpelier U.S. Ins. Co., supra, 54 Conn. L. Rptr. 392.   In Erikson Metals, the plaintiff brought a multi-count complaint against the defendants who were the plaintiff's insurance agent, including two counts for breach of contract.  Erikson Metals Corp. v. McManus, supra.   The plaintiff alleged that it “retained the defendants as its insurance agent to procure insurance for its business.   The plaintiff provided the defendants with copies of the insurance policies it had in effect immediately prior to retaining the defendants and requested the same insurance coverage.”  Id. Subsequently, the plaintiff submitted a claim to its insurer under the policy procured by the defendants but was informed that the insurer would not pay on the claim because of an exclusion in the policy.  Id. The defendants moved to strike the breach of contract claims because the plaintiff did not allege that the plaintiff “made a specific request for a particular type of coverage and that [the] defendants promised a particular result.”   (Internal quotation marks omitted.)  Id. The court disagreed with the defendants and denied the motion to strike, concluding that the plaintiff had alleged claims for breach of contract.  Id. The court explained that the plaintiff alleged that “it retained the defendants to procure insurance that was the same as it had in force at the time that the defendants were engaged.   That insurance would have included coverage with no pollution exclusion or co-insurance clause since the plaintiff alleges those limitations were not included in its prior policies.  [The breach of contract counts] allege specific requests by the plaintiff for the defendants to obtain a particular result;  namely, the procurement for the plaintiff of the same insurance coverages that it had immediately prior to retaining the defendants.”  Id.

The court in Allied Sprinkler & Mechanical Systems, Inc. v. Montpelier U.S. Ins. Co., supra, 54 Conn. L. Rptr. 392, relied on Erikson Metals in denying a motion to strike two breach of contract claims.   In Allied Sprinkler, the plaintiffs filed a multi-count complaint against their insurance agent, Woodbury Insurance Agency, Inc., based on Woodbury's failure to procure appropriate commercial liability insurance.  Allied Sprinkler & Mechanical Systems, Inc. v. Montpelier U.S. Ins. Co., supra. 393.   The plaintiffs alleged that the insurance policy procured by Woodbury contained an endorsement, purporting to exclude the requested coverage.  Id. In denying the motion to strike, the court found that the plaintiffs alleged that they contracted with Woodbury to obtain a particular result—namely, the procurement of commercial liability insurance appropriate to protect the plaintiffs.  Id., 394–95.

In the present case, the plaintiff's revised complaint alleges that it engaged Aon to act as its insurance broker in the procurement of a CCIP that met the liability insurance limits required under the EPC Agreement.   Aon procured CCIP coverage for an amount which was less than the total coverage required by the EPC Agreement.   Construing these allegations in the light most favorable to the plaintiff, an action for breach of contract is sufficiently alleged.   Count four alleges a specific request by the plaintiff for Aon to obtain a particular result—namely, the procurement of a CCIP that complied with the insurance limits required by the EPC Agreement.   Accordingly, the motion to strike count four is denied.

(c)

Counts Six and Eight:  Negligence and Professional Malpractice

Count six, sounding in negligence, alleges that Aon owed the plaintiff a duty to exercise reasonable skill, care and diligence (1) to advise the plaintiff in the purchase of its insurance coverage required under the EPC Agreement, including additional umbrella/excess liability coverage in excess of the CCIP;  (2) to procure a CCIP in the full amount of CGL and umbrella/excess insurance liability coverage required under the EPC Agreement;  and (3) to determine whether the insurance required under the EPC Agreement, which was not provided by the CCIP, had been procured and to advise the plaintiff accordingly.   Aon breached its duties by failing to advise the plaintiff that all of the requested and required coverage had not been procured.

Count eight, sounding in professional malpractice, alleges that Aon owed a duty to the plaintiff to perform as the plaintiff's insurance agent and broker, and to professionally provide those services with the degree of skill, care and diligence generally expected of reasonably skilled members of the profession.   Count eight further alleges that the plaintiff relied upon Aon to ensure that the plaintiff did not have any deficiency in insurance coverage as required by the EPC Agreement and that Aon departed from the standard of care in its procurement and review of the plaintiff's insurance coverages.

Aon moves to strike counts six and eight, arguing that both counts fail to allege the breach of any common law duty or professional duty.   According to Aon, the common law does not impose a duty on insurance brokers, such as Aon, to do more than place the coverage requested, which the plaintiff concedes Aon did.   Additionally, Aon contends, the plaintiff did not allege that Aon undertook a professional duty to oversee placement of all insurance or supervise LIG.

In contrast, the plaintiff enumerates the allegations which, it contends, set forth Aon's legal and professional duties as the plaintiff's insurance broker.   The plaintiff argues that Aon's interpretation of the law is constrained and, moreover, whether a fiduciary duty is owed is a question of fact not suitable for a motion to strike.

In reply, Aon contends that the plaintiff's sole theory of liability against it is that if the plaintiff's own understanding of the EPC Agreement was incorrect and the EPC Agreement actually required the entire $100 million in coverage to be placed under the CCIP, then Aon should have corrected the plaintiff's legal error and, contrary to the plaintiff's instructions, placed the entire coverage under the CCIP. Aon asserts that it does not have a duty at common law to render legal advice.

Aon also argues that the cases cited by the plaintiff stand for the proposition that brokers may be liable for failing to recommend the correct type or amount of coverage but, in the present case, there is no dispute that all of the parties identified the appropriate amount and type of insurance to acquire and understood that the plaintiff charged Aon with acquiring only a part of the whole.

Moreover, Aon contends that the plaintiff did not allege a fiduciary duty in the complaint and cannot argue that Aon was acting as a fiduciary because the plaintiff specifically hired LIG to procure the umbrella policies and, therefore, chose not to rely on Aon's advice with respect to those policies.   According to Aon, an insurance broker's duty does not extend to providing advice on coverage not procured by it.   Aon was hired to procure only part of the total insurance coverage required, i.e., the CCIP, while LIG was retained to procure the umbrella policies.   The failure to include the Kleen project as part of the umbrella policies was due to LIG's oversight.   Aon was not retained or paid to supervise LIG or take any affirmative steps to amend the CCIP to account for the umbrella policies.   Therefore, Aon argues, the plaintiff has no common law claim against it for failure to supervise.

LIG also submitted a memorandum of law in opposition to Aon's motion to strike counts six and eight, contending that, when the complaint is read in its entirety, the plaintiff has stated claims for negligence and professional malpractice against Aon. According to LIG, under our appellate precedents, Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934), and Dimeo v. Burns, Brooks & McNeil, 6 Conn.App. 241, 504 A.2d 557, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986), the plaintiff need only allege that Aon breached its duty by failing to recommend, as the Aon Service Agreement required, that the plaintiff purchase sufficient limits, i.e., $100 million, under the CCIP to satisfy the EPC Agreement, or that the plaintiff take all necessary steps to make sure it filled any gaps in that coverage by purchasing the insurance elsewhere.   LIG contends that the plaintiff has satisfied this pleading standard.

LIG also argues that, beyond the common-law duties set forth in Ursini and Dimeo, Aon may be liable to the plaintiff for negligence based on its breach of duty arising out of the Aon Service Agreement.   Aon specifically agreed, by contract, to recommend appropriate insurance specific to the Kleen project and is alleged to have negligently failed to do.   The common-law and contractual duties imposed on Aon meant that Aon could not turn a blind-eye to any coverage deficiencies that might result from the plaintiff's requests.   LIG argues that Aon had a duty to explain the consequences of purchasing a CCIP that did not meet the EPC Agreement's insurance requirements, to make recommendations about how to meet those requirements, to recommend the proper amount and to attempt to procure sufficient coverage.   According to LIG, the plaintiff has alleged facts supporting its claim that Aon failed to meet the standard of exercising reasonable skill, care and diligence in effecting the insurance for the Kleen project.

In reply to LIG, Aon reiterates that its duties to the plaintiff were limited to the CCIP, as it was not retained to place additional coverage or review the umbrella policies to ensure that the terms and conditions of the coverage placed by LIG met the plaintiff's requirements.   Aon also disputes LIG's interpretation of Ursini v. Goldman, supra, 118 Conn. 554, and Dimeo v. Burns, Brooks & McNeil, supra, 6 Conn.App. 241.

“The existence of a duty is a question of law ․” (Internal quotation marks omitted.)  Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).  “First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.”  (Citation omitted;  internal quotation marks omitted.)  D'Angelo Development & Construction Corp. v. Cordovano, 121 Conn.App. 165, 184, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).  “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised ․ By that it is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?”  (Citation omitted.)  Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941).

In Ursini v. Goldman, supra, 118 Conn. 559, our Supreme Court stated that an insurance broker is an agent of the insured in negotiating for the policy and, “[a]s such he owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss ․ Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default.”  (Citations omitted.)   See Todd v. Malafronte, 3 Conn.App. 16, 22, 484 A.2d 463 (1984) (Ursini standard applies to insurance agents as well as brokers).

The “reasonable skill, care and diligence required of a broker includes a duty to at least see that his client has proper coverage.”  (Internal quotation marks omitted.)   OCI Chemical Corp. v. AON Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 05 4003935 (August 14, 2008, Downey, J.), citing Dimeo v. Burns, Brooks & McNeil, supra, 6 Conn.App. 244.   In Dimeo v. Burns, Brooks & McNeil, supra, 244–45, our Appellate Court approved a trial court instruction correctly explaining a broker's duty of care:  “[S]elling insurance is a specialized field with specialized knowledge and experience, and ․ an agent has the duties to advise the client about the kind and extent of desired coverage and to choose the appropriate insurance for the client ․ [A] client ordinarily looks to his agent and relies on the agent's expertise in placing his insurance problems in the agent's hands ․ [I]f the agent performs these duties negligently, he is liable therefor, just as other professionals are.”   The Dimeo court “instructed the jury, on the basis of the expert testimony produced in the case ․ that an agent has the duty to explain uninsured motorist coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client.”  Id., 245.

In support of its argument that it lacked a duty to the plaintiff with regard to any coverage beyond the CCIP, Aon relies on Grossenbacher v. Ericson Agency, Superior Court, judicial district of Litchfield, Docket No. CV 97 0073515 (April 10, 2000, DiPentima, J.), for the proposition that an insurance broker's duties do not extend to providing advice on coverage procured by another insurance broker.   Aon's characterization of Grossenbacher, however, is misleading.   The Grossenbacher court actually held that absent a fiduciary relationship, insurance brokers had no duty to advise as to adequate insurance.⁵  Id.

“With respect to the relationship between an insurance agent and a client, at least one Superior Court judge has held that because of the increasing complexity of the insurance industry and the specialized knowledge required to understand all of its intricacies, the relationship between the insurance agent and his client is often a fiduciary one.”  (Internal quotation marks omitted.)   Seven Bridges Foundation v. Wilson Agency, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 6009707 (March 2, 2012, Tobin, J.) (53 Conn. L. Rptr. 584, 586), quoting Putnam Resources v. Frenkel & Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 92 0123838 (July 20, 1993, Lewis, J.) (9 Conn. L. Rptr. 420).  “The insurance agent-client relationships which give rise to a fiduciary duty and those which are merely professional in nature are distinguished by the conduct of the parties.”  Seven Bridges Foundation v. Wilson Agency, Inc., supra.  “[W]here the agent holds himself out as a consultant and counselor ․ and is acting as a specialist, and where the client trusts and relies on the agent as a specialist, a fiduciary duty is present.”  (Internal quotation marks omitted.)  Id.

In Kohn v. John M. Glover Agency, Inc., Superior Court, judicial district of Danbury, Docket No. CV 000339053 (April 24, 2001, Adams, J.) (29 Conn. L. Rptr. 377), the court denied a motion to strike a negligence claim against an insurance agent, finding that the plaintiffs sufficiently alleged a fiduciary or special relationship with the agent based on their allegations that they relied on the agent's expertise to obtain appropriate insurance.   In that case, the plaintiffs alleged that the agent had a duty to review their coverage, its adequacy and explain what coverage was available.  Id., 377–78.   The court explained that although “[i]t is ․ inadvisable to create a situation where an incentive exists for an insured to claim successfully after the fact they would have purchased more insurance ․ Connecticut law does recognize an agency relationship between insurance agent and insured at the time insurance is contracted and some duties flow from that relationship ․ [A] fiduciary relationship [is] one characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other.”  (Internal quotation marks omitted.)  Id., 378.   In denying the motion to strike, the court noted that “[a]t the very least the agent has a duty to put into effect the type and amount of coverage requested.   It also does not seem too much to ask that an agent, with his or her expertise and knowledge of the insurance business, review existing and available coverages, at that time.”  Id. As the existence of a fiduciary or special relationship is a question of fact, the court found that the plaintiffs alleged a relationship with the agent from which “a duty to advise of available insurance coverage and coverage adequacy may arise.”  Id., 378–79.

In the present case, the plaintiff has alleged a relationship with Aon, acting as its insurance agent and broker with respect to insurance required under the EPC Agreement, from which a duty to advise the plaintiff and recommend that the plaintiff purchase sufficient limits under the CCIP to satisfy the EPC Agreement may arise.   Furthermore, the plaintiff sufficiently has alleged that Aon had a contractual duty to advise the plaintiff in the purchase of coverage required under the EPC Agreement, including the need for additional liability coverage in excess of the CCIP. Specifically, the complaint alleges that Aon knew that the EPC Agreement required the plaintiff to secure a minimum amount of umbrella/excess liability coverage in connection with the project and Aon was required to understand the EPC Agreement's insurance requirements.   The complaint further alleges that Aon had a professional responsibility to request and review documentation to ensure that the CCIP coverage it placed for the plaintiff, along with the plaintiff's excess policies, satisfied the EPC Agreement's insurance requirements.

The plaintiff has sufficiently alleged that Aon owed a duty to the plaintiff beyond placement of the CCIP. For the foregoing reasons, the motion to strike counts six and eight is denied.

2

Motion to Strike Apportionment Complaint (# 127)

Aon moves to strike the entire apportionment complaint filed by LIG on the ground that the complaint is legally insufficient because (a) Aon is already a party to the action and (5) Aon had no relationship with LIG and owed no duty to LIG. According to Aon, there is no basis in the common law or in the parties' contracts for LIG's claims that Aon had a duty to mitigate LIG's failure to properly endorse the umbrella policies by supervising LIG in its placement of the policies or by acquiring an additional $50 million in coverage.

In contrast, LIG argues that, although Connecticut's appellate courts have yet to consider the issue, there is a clear trend among Superior Court judges to allow apportionment complaints to be filed against an existing party to an action.   LIG also argues that it has alleged additional facts, not contained in the plaintiff's revised complaint, which, if credited as they must be on a motion to strike, clearly establish that Aon's negligence caused the plaintiff's alleged damages.

In reply, Aon asserts that LIG's argument primarily relies on dicta from inapposite cases adopting a minority view.   Additionally, Aon contends that LIG's argument that the apportionment complaint alleges additional facts is irrelevant as it does not add any basis for liability not already before the court.   According to Aon, “an apportionment complaint is not a vehicle for a defendant to amend [a] plaintiff's complaint because it disagrees with [a] plaintiff's characterization of the facts.”   Aon contends that an apportionment complaint is unnecessary because its proportionate share of liability for the plaintiff's purported damages is necessarily an issue already before the court.

LIG filed a supplemental memorandum in opposition to Aon's motion to strike, in which LIG asks that this court take judicial notice of Aon's amended third-party complaint against LIG in a federal court action between and among the parties to the present action.⁶  According to LIG, in the third-party complaint, Aon takes a position contradictory to the position it takes in the present case, as Aon alleges that LIG had a duty to supervise Aon's work and should have noticed Aon's error in its placement of policies for the plaintiff.   Essentially, according to LIG, Aon is requesting that a federal court hold that an apportionment right exists for Aon's benefit, while asking this court to hold that such a right does not exist for LIG.

In its reply to LIG's supplemental memorandum, Aon asserts that the federal action has no bearing on this court's analysis, and that the third-party complaint does not contradict the position that Aon is taking in the present case.   According to Aon, the third-party complaint does not seek apportionment, but rather contains causes of action for common-law indemnity and contribution.   Moreover, in the federal action, Aon's claims against LIG are not based on some generalized duty to oversee, but rather based on Aon's theory that the plaintiff relied upon LIG, not Aon, to ensure that the terms of the insurance complied with the requirements under the EPC Agreement.⁷

(a)

General Statutes § 52–102b

General Statutes § 52–102b(a) provides in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”  (Emphasis added.)

“Connecticut appellate authority has not yet determined whether a defendant may bring an apportionment claim or counterclaim against a current party to an action.   There is a split of authority at the Superior Court level on the issue.   One line of cases, which has been referred to as the ‘majority view,’ interprets the plain language of § 52–102b and certain of its legislative history to preclude the filing of an apportionment claim against one who is already a party to the underlying action ․ The contrary view, which is often characterized as the ‘minority view,’ concludes that the purpose of § 52–102b is not to bar the filing of apportionment complaints against existing parties, but rather to provide a statutory means by which defendants may add and seek apportionment from non-parties ․ These ‘minority view’ opinions have determined that because § 52–102b is irrelevant to persons that are already parties to a suit ․ the law does not preclude the filing of an apportionment action against existing parties.”  (Citations omitted;  internal quotation marks omitted.)   Benway v. Belmont, Superior Court, judicial district of Waterbury, Docket No. CV 12 6016131 (March 28, 2013, Roche, J.) [55 Conn. L. Rptr. 824].

As one court has noted, “[a] review of the most recent case law suggests that the division among the superior court judges is approaching an even split.”   Benway v. Belmont, Superior Court, judicial district of Waterbury, Docket No. CV 12 6016131 (March 28, 2013, Roche, J.), supra, quoting Hilarion v. Yank, Superior Court, judicial district of Fairfield, Docket No. CV 10 6006792 (September 9, 2011, Dooley, J.) (52 Conn. L. Rptr. 574, 576 n.1).  “Indeed, given the clear trend toward the adoption of the ‘minority view’ in recent cases, it may well be that the so-called ‘minority view’ now reflects the opinion of the majority of the judges who have had occasion to rule upon this particular question.”  Prete v. Borrelli, Superior Court, judicial district of New Haven, Docket No. CV 11 6022696 (May 22, 2012, Gold, J.) (54 Conn. L. Rptr. 88, 90 n.1).

In Hilarion v. Yank, supra, 52 Conn. L. Rptr. 576, Judge Dooley adopted the “minority view,” explaining that, “[w]hen two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results ․ In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.”   (Internal quotation marks omitted.)  “The purpose of § 52–102b is to effectuate a sharing of the responsibility between potential tortfeasors, as set forth in the legislative directive and the public policy of General Statutes 52–572h(c).”  Id. Similarly, in Prete v. Borrelli, supra, 54 Conn. L. Rptr. 89, Judge Gold adopted the “minority view,” noting that, after “[undertaking] its own assessment of the respective merit of the majority and minority positions, this court concludes that the so-called ‘minority view’ is not only better reasoned and more practical, it seems to reflect the more modern approach.   As this court sees it, § 52–102b does not say, and was not intended to say, that a defendant is barred from filing an apportionment complaint against an existing party.   Rather than serving to restrict a defendant's right to seek apportionment, the statute's purpose is to broaden that right by authorizing apportionment to be sought against non-parties as well.”

As Judge Genuario recently stated, “[t]here are numerous Superior Court decisions on the subject of whether a co-defendant ․ can assert a cross claim for apportionment against another co-defendant.   There is no appellate authority in our state on the issue.   The court has reviewed all of the many Superior Court cases cited by the parties and finds itself in agreement with the line of cases that is referred to generally as the ‘minority view.’   Quite frankly this court cannot improve upon the logic or reasoning contained in ․ [those] cases ․” (Citations omitted.)   Stahl v. Gelco Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 12 6012926 (December 17, 2012, Genuario, J.), citing Baez v. Toledo, Superior Court, judicial district of New Haven, Docket No. CV 12 6004897 (August 16, 2012, Markle, J.) (54 Conn. L. Rptr. 533);  Prete v. Borrelli, supra, 54 Conn. L. Rptr. 88;  Blazer v. Gil, Superior Court, judicial district of Fairfield, Docket No. CV 07 5003123 (June 15, 2007, Tobin, J.) (43 Conn. L. Rptr. 619);  Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. CV 04 29034 (March 27, 2001, Blue, J.) (29 Conn. L. Rptr. 311);  Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. CV 00 0423742 (June 13, 2000, Levin, J.) (27 Conn. L. Rptr. 403);  Farmer v. Christianson, Superior Court, judicial district of Rockville, Docket No. CV 00 71954 (May 4, 2000, Sullivan, J.) (27 Conn. L. Rptr. 196).

Likewise, this court also cannot improve on the logic or reasoning contained in the cases adopting the “minority view.”   This court is persuaded that, by adopting the “minority view,” the purpose of General Statutes § 52–102b is effectuated and a reasonable result is reached.   As such, Aon's motion to strike the apportionment complaint on the ground that Aon is already a party to the action is denied.

(5)

Duty of Care

General Statutes § 52–102b(a) “grants the right to file an apportionment complaint to a defendant in any civil action to which Section 52–572h applies ․ The Supreme Court has stated that a civil action to which Section 52–572h applies within the meaning of 52–102b, means a civil action based on negligence.”  (Internal quotation marks omitted.)   Bernard v. Baitch, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 09 5013017 (January 13, 2012, Tobin, J.) (53 Conn. L. Rptr. 402, 404), citing Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793–95, 756 A.2d 237 (2000).

Aon moves to strike the apportionment complaint on the ground that, as a matter of law, Aon did not owe a duty of care to LIG because there is no basis in common law or the parties' contracts for such a claim.⁸  Aon argues that its duties to the plaintiff are defined by the Aon Service Agreement and such duties did not extend to a duty to monitor LIG, mitigate LIG's failure to procure the proper coverage, or otherwise take affirmative steps to obtain the remaining coverage elsewhere.   Aon also argues that LIG is not permitted to allege additional facts or facts inconsistent with the plaintiff's complaint.

As an initial matter, Aon does not provide any support for the proposition that LIG is not permitted to allege additional facts, relevant to its apportionment claim, which were not alleged in the plaintiff's complaint.   Nonetheless, such an argument fails because, on a motion to strike, the court is limited to the facts alleged in the challenged complaint.   It is inappropriate to look beyond the challenged apportionment complaint to the allegations contained in the original complaint.   See Callis v. Cumberland Farms, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5009596 (March 20, 2009, Brunetti, J.) (only look to facts alleged in apportionment complaint on a motion to strike apportionment complaint);  Jones v. Greater Waterbury YMCA, Superior Court, judicial district of Waterbury, Docket No. CV 07 5004504 (January 16, 2008, Roche, J.) (44 Conn. L. Rptr. 625);  Rosario v. Orlando Annulli & Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) (44 Conn. L. Rptr. 9);  Cintron v. Meriden Square # 3, Superior Court, judicial district of New Haven, Docket No. CV 05 5000244 (January 23, 2007, Taylor, J.);   Saucier v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177767 (December 5, 2003, Matasavage, J.) (36 Conn. L. Rptr. 110).   Moreover, LIG did not incorporate by reference or append the plaintiff's complaint to its apportionment complaint and, therefore, LIG did not expressly condition its claim of apportionment on the plaintiff's ability to prove at trial the Aon was negligent in the manner pleaded by the plaintiff.   Compare, e.g., Huertas v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 09 5031540 (October 20, 2010, Sheldon, J.) (50 Conn. L. Rptr. 806) (apportionment plaintiff appended underlying complaint to apportionment complaint and, therefore, on motion to strike, court reviewed underlying complaint in determining the sufficiency of the apportionment complaint).

“[T]he existence of a duty of care is an essential element of negligence ․ There is no question that a duty of care may arise out of a contract ․” (Citation omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010).  “[N]o court has held that apportionment claims must be based on allegations of negligent breaches of identical or similar duties as those alleged in the plaintiff's complaint.”   Shay v. Norwalk, Taxi, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket Nos. CV 12 6012737, CV 12 6013544 (March 7, 2013, Tobin, J.T.R.) [55 Conn. L. Rptr. 755].   Moreover, General Statutes § 52–572h “does not require that the apportionment defendant owe a duty to the apportionment plaintiff, but merely that the apportionment defendant is partially liable for the plaintiff's damages, or rather had a duty to the plaintiff.”  (Internal quotation marks omitted.)   Sobieski v. Extreme Maintenance, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 6003762 (March 5, 2010, Wilson, J.);   Billings v. Cretella Builders, LLC, Superior Court, judicial district of New Haven, Docket No. CV 07 5012830 (July 30, 2009, Holden, J.).

In the present case, LIG's apportionment complaint alleges the following relevant facts.   When work on the Kleen project began, the plaintiff was insured by umbrella policies which had been placed by LIG. These umbrella policies provided the plaintiff with a total of $100 million in excess liability insurance and fully satisfied the contractual requirements in the EPC Agreement.   The umbrella policies contained wrap-up insurance exclusions that excluded coverage for any project that was subject to a CCIP. Partway through the Kleen project, Aon recommended and convinced the plaintiff to purchase a CCIP providing only $50 million of excess insurance, notwithstanding Aon's knowledge that the EPC Agreement required $100 million in coverage.   Aon held itself out as an expert on CCIP policies and contractually agreed with the plaintiff to develop, recommend, negotiate and place insurance for the Kleen project.   Aon knew or should have known that the umbrella policies in place would exclude the Kleen project if and when the CCIP became effective.   Aon failed to inform the plaintiff of that fact and, therefore, failed to make a proper recommendation to the plaintiff consistent with its contractual and common law duty of care.

Taking these allegations in a light most favorable to sustaining the complaint's legal sufficiency, LIG has alleged that Aon owed a duty to the plaintiff and negligently performed that duty, causing the plaintiff's alleged damages.   As such, Aon's motion to strike the apportionment complaint is denied.

III

CONCLUSION

Aon's motion to strike the plaintiff's revised complaint (# 116) is granted as to count two, but the motion is denied as to counts four, six and eight.   Also, Aon's motion to strike LIG's apportionment complaint (# 127) is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. “CCIP is a program that ‘wrap-up’ various individual policies related to a common project or location into master policies.”   Travelers Indemnity Co. v. C.R. Klewin, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4019921 (February 5, 2008, Dubay, J.)..  FN1. “CCIP is a program that ‘wrap-up’ various individual policies related to a common project or location into master policies.”   Travelers Indemnity Co. v. C.R. Klewin, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4019921 (February 5, 2008, Dubay, J.).

FN2. LIG also failed to realize and/or failed to advise the plaintiff that the Travelers policy was not properly endorsed as excess insurance over the CCIP. However, Travelers retroactively issued such an endorsement based on a Travelers “Sold Proposal” procured by LIG indicating that the Travelers policy would apply in excess of the CCIP..  FN2. LIG also failed to realize and/or failed to advise the plaintiff that the Travelers policy was not properly endorsed as excess insurance over the CCIP. However, Travelers retroactively issued such an endorsement based on a Travelers “Sold Proposal” procured by LIG indicating that the Travelers policy would apply in excess of the CCIP.

FN3. The rules of practice define the scope of declaratory judgment actions as follows:  “The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity;  or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.”  Practice Book § 17–54..  FN3. The rules of practice define the scope of declaratory judgment actions as follows:  “The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity;  or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.”  Practice Book § 17–54.

FN4. Abrogation on other grounds is recognized by Markley v. Dept. of Public Utility Control, 301 Conn. 56, 23 A.3d 668 (2011)..  FN4. Abrogation on other grounds is recognized by Markley v. Dept. of Public Utility Control, 301 Conn. 56, 23 A.3d 668 (2011).

FN5. In Grossenbacher, the plaintiffs alleged that their insurance agent was negligent in failing to advise them of the inadequacy of their coverage.  Id. However, the coverage that was allegedly inadequate was an automobile policy, not procured through the agent.  Id. Rather, the agent had procured a homeowner's insurance policy for the plaintiffs, which was not the subject of the complaint.  Id. The issue of whether the agent owed a duty to advise was presented on a motion for summary judgment, not a motion to strike.  Id. Although the court noted that “[u]nder the established Connecticut law ․ insurance brokers do not automatically have a duty to advise the plaintiffs as to adequate coverage,” it also stated that a fiduciary relationship between the parties may give rise to such a duty and a determination of such relationship is a question of fact.   Id. The court found that there were no facts to support a finding that a “unique degree of trust and confidence existed between the parties” and the duty that the insurance broker did have with the plaintiff did not extend to providing unsolicited advice on coverage with regard to policies not procured through them.”  Id..  FN5. In Grossenbacher, the plaintiffs alleged that their insurance agent was negligent in failing to advise them of the inadequacy of their coverage.  Id. However, the coverage that was allegedly inadequate was an automobile policy, not procured through the agent.  Id. Rather, the agent had procured a homeowner's insurance policy for the plaintiffs, which was not the subject of the complaint.  Id. The issue of whether the agent owed a duty to advise was presented on a motion for summary judgment, not a motion to strike.  Id. Although the court noted that “[u]nder the established Connecticut law ․ insurance brokers do not automatically have a duty to advise the plaintiffs as to adequate coverage,” it also stated that a fiduciary relationship between the parties may give rise to such a duty and a determination of such relationship is a question of fact.   Id. The court found that there were no facts to support a finding that a “unique degree of trust and confidence existed between the parties” and the duty that the insurance broker did have with the plaintiff did not extend to providing unsolicited advice on coverage with regard to policies not procured through them.”  Id.

FN6. LIG states that it was unable to bring Aon's third-party complaint to the court's attention in its original opposition to Aon's motion to strike because the third-party complaint had not been filed at that time..  FN6. LIG states that it was unable to bring Aon's third-party complaint to the court's attention in its original opposition to Aon's motion to strike because the third-party complaint had not been filed at that time.

FN7. Aon also adds an additional argument in support of its motion to strike, asserting that there is no apportionment right with respect to purely economic or commercial losses.   In a supplemental memorandum in reply to Aon's reply, LIG objects to this new ground and argues that, under Connecticut common law, apportionment is permitted for economic damages.   The court need not reach this issue because, “[i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   Aon's motion to strike specifies only two grounds:  (1) that Aon is already a party and (2) Aon does not owe a duty to LIG. As such, this court will not consider Aon's newly presented additional argument..  FN7. Aon also adds an additional argument in support of its motion to strike, asserting that there is no apportionment right with respect to purely economic or commercial losses.   In a supplemental memorandum in reply to Aon's reply, LIG objects to this new ground and argues that, under Connecticut common law, apportionment is permitted for economic damages.   The court need not reach this issue because, “[i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   Aon's motion to strike specifies only two grounds:  (1) that Aon is already a party and (2) Aon does not owe a duty to LIG. As such, this court will not consider Aon's newly presented additional argument.

FN8. Aon also argues that LIG's apportionment complaint is dependent on the plaintiff's revised complaint and, therefore, if the revised complaint is stricken then the court must strike the apportionment complaint because the apportionment complaint merely restates the same bases for liability set forth in the revised complaint.   As the motion to strike the revised complaint was denied, the court need not address this argument..  FN8. Aon also argues that LIG's apportionment complaint is dependent on the plaintiff's revised complaint and, therefore, if the revised complaint is stricken then the court must strike the apportionment complaint because the apportionment complaint merely restates the same bases for liability set forth in the revised complaint.   As the motion to strike the revised complaint was denied, the court need not address this argument.

Pickard, John W., J.