Amneris Fradera v. State Farm Mutual Automobile Insurance Company (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 125

FACTS

On March 1, 2011, the plaintiff, Amneris Fradera, commenced this action by service of process on the defendant, State Farm Mutual Automobile Insurance Company.   In her amended complaint dated February 1, 2013, the plaintiff alleges the following facts.   On June 1, 2010, a motor vehicle operated by an unknown individual (tortfeasor) inexplicably stopped his or her vehicle on a public highway in Meriden, Connecticut, and thus caused the plaintiff's motor vehicle to collide with the rear of the tortfeasor's motor vehicle.   The tortfeasor fled the scene after the collision.   Based on these allegations, the plaintiff brings the instant action against her automobile insurance company, claiming breach of contract pursuant to General Statutes § 38a–336 in count one, breach of contract pursuant to General Statutes § 38a–321 in count two, bad faith pursuant to General Statutes § 38a–321 in count three, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., through the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a–815 et seq., in count four, and intentional infliction of emotional distress in count five.

On March 18, 2013, the defendant moved to strike counts two, three, and four of the amended complaint.¹  In its accompanying memorandum of law, the defendant argues that, with respect to count two, a claim for breach of contract pursuant to § 38a–321 is legally insufficient because that particular statute deals with liability insurance policies, and the plaintiff has not alleged that there is one at issue.   With respect to count three, the defendant argues, first, that the plaintiff has failed to allege a sinister motive or improper purpose on behalf of the defendant and, second, that § 38a–321 is inapplicable because there is no liability insurance contract at issue.   Finally, with respect to count four, the defendant argues that the plaintiff does not sufficiently plead that the defendant engaged in the same conduct with such frequency that it amounted to a general business practice, as is required for a CUTPA claim.

On April 3, 2013, the plaintiff filed an objection to the defendant's motion to strike, wherein she argues that all counts challenged are legally sufficient.   On May 17, 2013, the defendant filed a reply memorandum.   The matter was heard at short calendar on May 20, 2013.

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, 815 A.2d 1188 (2003).  “[I]t 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).   This court takes “the facts to be those alleged in the [complaint] ․ and ․ construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “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).

I

Count Two

In the present case, the defendant challenges the legal sufficiency of count two of the complaint, which is a breach of contract claim pursuant to General Statutes § 38a–321.   The defendant argues that the plaintiff may not proceed under § 38a–321, first, because the statute does not encompass uninsured motorist policies and, second, because the plaintiff has not alleged that a judgment already has been rendered against the tortfeasor.

General Statutes § 38a–321 is entitled “[l]iability of insurer under liability policy” and is commonly referred to as the direct action statute.

It provides:  “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty.   No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.   Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”  General Statutes § 38a–321.

“[T]he legislature's purpose in enacting the direct action statute was to remedy [t]he unfairness to the assured of contracts of insurance with provisions that the insurer should be liable only in cases where the assured had actually paid a judgment obtained against him ․ The intention of the Act is to give the injured person the same rights under the policy as the assured ... Thus, the statute protects those injured by judgment proof insureds, by subrogating the injured party or judgment creditor to the rights of the assured against the insurer.”  (Citations omitted;  internal quotation marks omitted.)  Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 672, 539 A.2d 138 (1988).   Accordingly, “in order for one to proceed under § 38–175 [which is now codified at § 38a–321], the insured must have had a viable statutory or contractual claim against the insurer ․” Id., 673;  see also Peck v. Public Service Mutual Ins. Co., 114 F.Sup.2d 51, 55 (D.Conn.2000) ( “The statute protects those injured by judgment-proof insureds by subrogating the injured party or judgment creditor to the rights of the insured against his insurer ” (emphasis added)).   Regarding legislative history, “[t]he only historical evidence of legislative intent is the statement of purpose which prefaced the bill when introduced in the Senate in 1919:  An Act relative to the addition of an Insurer as Party Defendant in an Action, providing for the joining of insured and insurer as defendants in civil actions.   Public Acts 1919, ch. 331.”  (Emphasis added;  internal quotation marks omitted.)   Verdon v. Transamerica Ins. Co., 187 Conn. 363, 368 n.4, 446 A.2d 3 (1982).   Our state Supreme Court has thus concluded that “[t]he three requisites of a cause of action under [the direct action statute] are (1) that the plaintiff has recovered a final judgment;  (2) that the judgment is against a person who was insured by the defendant against liability on it;  and (3) that the judgment remains unsatisfied.”  Skut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 393, 114 A.2d 681 (1955).

Based on the plain language of the statute and our Supreme Court's interpretation thereof, it is clear that the plaintiff in the present case has not pleaded sufficient facts that would enable her to proceed under this statute.   The foregoing strongly suggests that the statute does not apply to an injured's claim against its own insurer, but rather, that it applies when the injured party seeks recovery from the tortfeasor's insurer.   The defendant insurer in the present case is alleged to be the plaintiff's insurer, not the tortfeasor's insurer.   Further, there is no allegation in count two that the plaintiff has recovered a final judgment against a person who was insured by the defendant insurance company, which is a requisite of stating a cause of action under this statute.  Id. Finally, the plaintiff has not referenced any case in which a court has allowed a claim similar to that of the plaintiff to go forward under this statute, nor is this court aware of any such case.   Accordingly, count two is legally insufficient and hereby is stricken from the plaintiff's amended complaint.

II

Count Three

The defendant argues that count three is legally insufficient for two reasons.   First, the defendant argues that the statute under which the plaintiff brings her claim in inapplicable and therefore that the bad faith claim cannot stand.   Second, the defendant argues that the plaintiff has failed to allege any bad faith action taken by the defendant.   Count three of the plaintiff's amended complaint is entitled “ § 38a–321 Bad Faith–Breach of Contract.”   Count three incorporates the facts alleged in counts one and two and additionally alleges that the defendant owed the plaintiff a duty of good faith and fair dealing pursuant to the contract the defendant entered into with the plaintiff concerning automobile liability insurance and underinsured motorist coverage and, further, that the defendant intentionally breached the terms of the contract as well as the duty of good faith and fair dealing in one or more of the following ways:  “a) [i]t did not attempt in good faith to effectuate a prompt, fair and equitable settlement of this claim in which liability has become obvious;  b) [i]t did not perform a proper analysis of the plaintiff's claim;  and/or;  c) [i]t did not communicate the basis for its decision not to pay benefits to the plaintiff.”   With the exception of the title of the cause of action, the facts set forth in count three do not contain any reference to § 38a–321 as a basis for the bad faith claim.   While the defendant is correct that § 38a–321 is inapplicable and that the plaintiff has not alleged sufficient facts to enable her to proceed under this statute;  see supra Part I;  this does not mandate the conclusion that the plaintiff's bad faith claim is legally insufficient.   Indeed, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).   While plaintiff may have misidentified the cause of action set forth in count three, the title assigned to a cause of action is not dispositive.   See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037 (“Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged”), cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992);  Hugman Co., Inc. v. Errato, Superior Court, judicial district of Litchfield, Docket No. CV 08 5004567 (February 24, 2010, Shaban, J.) (“The heading of the count is not dispositive of what cause of action is alleged”);  Allstate Ins. Co. v. Linarte, Superior Court, judicial district of New Britain, Docket No. CV 05 4005150 (May 24, 2007, Shapiro, J.) (43 Conn. L. Rptr. 664, 667) (“The title which a plaintiff assigns to her cause of action in her complaint is not determinative”).

Because the substance of the allegations in count three potentially supports a cause of action for a breach of the implied covenant of good faith and fair dealing, the court will evaluate whether the plaintiff sufficiently has alleged such a claim.  “[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in the dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Internal quotation marks omitted.)  Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).  “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 269 Conn. 424, 849 A.2d 382 (2004).

“[A] plaintiff cannot state a claim for breach of the implied covenant simply by alleging a breach of the contract, in and of itself ․ Instead, to state a legally sufficient claim for breach of the implied covenant sounding in contract, the plaintiff must allege that the defendant acted in bad faith ․ If the plaintiff fails to set forth factual allegations that the defendant acted in bad faith, a claim for breach of the implied covenant will not lie.”   (Citations omitted;  internal quotation marks omitted.)  Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 99, 30 A.3d 38 (2011), cert. granted on other grounds, 303 Conn. 923, 34 A.3d 395 (2012).

“There is no Connecticut Appellate or Supreme Court case setting forth exactly what allegations are required to set forth a viable claim for bad faith ․ [T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute a finding of bad faith ․ Some courts have required that allegations establishing a dishonest purpose or malice be specifically [pleaded] ․ Other courts have ruled that a plaintiff need only allege sufficient facts or allegations from which a reasonable inference of sinister motive can be made ․ For instance, bad faith may be inferred by repetitive, knowing or deliberate conduct as such allegations are unlikely to be attributable to an honest mistake or mere negligence.”  (Citations omitted;  internal quotation marks omitted.)   Potter v. Aetna Life Ins. Co., Superior Court, judicial district of New London, Docket No. CV 12 6015263 (April 18, 2013, Devine, J.).

Given this court's duty to view the plaintiff's allegations broadly and realistically rather than narrowly and technically, this court finds persuasive the latter line of cases.   The plaintiff in the present case alleges that the defendant insurance company intentionally breached the terms of the contract by failing to effectuate a prompt, fair and equitable settlement in good faith despite the fact that liability was obvious, by failing to perform a proper analysis of the plaintiff's claim, and/or by failing to communicate the basis for its decision not to pay benefits to the plaintiff.  “Subterfuges and evasions violate the obligation of good faith in performance even though the actor believes his conduct to be justified.   But the obligation goes further:  bad faith may be overt or may consist of inaction, and fair dealing may require more than honesty.   A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions:  evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance.”  Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 667, 778 A.2d 237 (2001).   This court is of the opinion that, from the facts alleged in count three, one can draw a reasonable inference that the defendant acted in bad faith inasmuch as its inaction and lack of diligence was intentional.   If the allegations are taken as true, the defendant intentionally breach its contract with the plaintiff, even though liability was obvious.   See Potter v. Aetna Life Ins. Co., supra, Superior Court, Docket No. CV 12 6015263 (bad faith could be inferred from the allegation that the insurance company's “intentional refusal to pay ․ contractual obligations has caused the plaintiff to unfairly be saddled with significant debt and caused the defendant to improperly profit from their actions”);  Partosan v. Union Mutual Fire Ins. Co., Superior Court, judicial district of Windham, Docket No. CV 10 6001697 (February 16, 2011, Vacchelli, J.) (bad faith could be inferred from allegations that “the defendant [insurance company] failed to conduct a reasonable investigation, failed to consider evidence, inappropriately accused the plaintiff of negligent conduct and refused to credit information from the plaintiff and the police as to the cause of the accident in question”).   Based on the foregoing, the defendant's argument that count three is legally insufficient is without merit.

III

Count Four

In count four of the amended complaint, the plaintiff alleges that the defendant violated CUTPA by virtue of multiple violations of CUIPA.   The defendant argues that the plaintiff's cause of action is deficient as pleaded inasmuch as the plaintiff has not alleged sufficiently the existence of a general business practice.

“[T]he legislature has manifested an intention to make insurance practices the subject of two regulatory statutes, CUIPA and CUTPA ․” (Internal quotation marks omitted.)  Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986).   CUTPA, General Statutes § 42–110a et seq., is a statutory scheme designed to protect the public from unfair practices in the conduct of any trade or commerce.  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379–80, 880 A.2d 138 (2005).   Section § 42–110b(a) provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  “It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court] [has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].”  (Internal quotation marks omitted.)   Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).  “There is generally no ‘special requirement of pleading particularity connected with a CUTPA claim.’  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002).”   Kawanobe v. Smith, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5004343 (June 23, 2009, Fischer, J. J.).

CUIPA, General Statutes § 38a–815 et seq., generally prohibits any trade practice that constitutes an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.   See General Statutes § 38a–815.   A “private cause of action [exists] under CUTPA to enforce alleged CUIPA violations.”  Mead v. Burns, supra, 199 Conn. 663;  see also H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 441 n.7, 955 A.2d 565 (2008).  “[A] CUTPA claim based on an alleged unfair [insurance] practice prohibited by [§ 38a–815, et seq.] [requires] proof, as under CUIPA, that the unfair ․ practice [has] been committed or performed by the defendant with such frequency as to indicate a general business practice.”   (Internal quotation marks omitted.)  Lees v. Middlesex Ins. Co., 229 Conn. 842, 850, 643 A.2d 1282 (1994).  “The term general business practice is not defined in the statute, so we may look to the common understanding of the words as expressed in a dictionary ․ General is defined as prevalent, usual [or] widespread ․ and practice means [p]erformance or application habitually engaged in ․ [or] repeated or customary action.”  (Citations omitted;  internal quotation marks omitted.)   Id., 849 n.8.

“There is no appellate authority ․ as to what is required for an allegation to sufficiently allege a general business practice, the number of instances of insurance misconduct which must be alleged and how specific those allegations must be.   A split of authority exists regarding the degree of specificity required when pleading a general business practice under CUIPA to survive a motion to strike.   One line of cases ․ requires that the plaintiff plead specific facts to demonstrate acts of insurer misconduct that go beyond the plaintiff's immediate claim ․ The other line of cases [has] held, essentially, that as long as the plaintiff alleges that the insurer misconduct involves other insureds, pleading specific instances of such misconduct is not required.”  (Citations omitted;  internal quotation marks omitted.)   PHL Variable Ins. Co. v. Charter Oak Trust, Superior Court, judicial district of Hartford, Docket No. CV 10 6012621 (March 27, 2013, Robaina, J.).

This court finds highly persuasive the reasoning articulated in Active Ventilation Products, Inc. v. Property & Casualty Ins. Co. of Hartford, Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 08 5023757 (July 15, 2009, Shortall, J.T.R.).   In that case, the court confronted the same issue and astutely noted the conflicting interests at issue in pleading, namely, the claimant's ability to bring a claim without having access “to the insurance company's records to discover somehow the existence of other instances of the same conduct in sufficient quantity to represent the company's ‘general business practice’ “ and also the insurance company's interest in preventing claimants from “invok[ing] the panoply of pretrial discovery techniques to rummage around in the company's books and records” by simply making bare allegations of a general business practice.  Id. Based on those considerations, the court concluded that “an allegation of a general business practice, unsupported by specific instances of insurer misconduct, is sufficient to withstand a motion to strike.”  Id.

After a thorough review of the split of authority, this court is of the opinion that an allegation of a general business practice involving other insureds is legally sufficient.   Given both the remedial nature of CUTPA and CUIPA and the basic tenet that pleadings must be construed broadly and realistically rather than narrowly and technically, this court finds that, so long as a claimant alleges in some way that the insurer misconduct involves other insureds, a claimant need not plead specific instances of misconduct.   Id.;  Nation v. Allstate Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 04 0093456 (September 7, 2005, Trombley, J.) (39 Conn. L. Rptr. 886);  Bates v. Utica Mutual Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 02 0088925 (May 29, 2003, Pickard, J.).

In the present case, the plaintiff has alleged a multitude of bases for her CUTPA claim.   In paragraph twenty-five of count four, the plaintiff alleges that the defendant engaged in unfair claim settlement practices, in violation of § 38a–816, specifically, subsections (6)(C), (6)(D), (6)(F), (6)(G), (6)(H) and (6)(N).  General Statutes § 38a–816(6) defines unfair settlement practices, in relevant part, as “[c]ommitting or performing with such frequency as to indicate a general business practice any of the following ․ (C) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;  (D) refusing to pay claims without conducting a reasonable investigation based upon all available information ․ (F) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;  (G) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;  (H) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application ․ (N) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement ․” Id. In connection with these allegations, the plaintiff has pleaded that some of these violations were committed “with such frequency as to indicate a general business practice ․” ² Based on the foregoing discussed regarding the requirements of pleading, the defendant's argument that the plaintiff failed to plead properly a general business practice is without merit.

CONCLUSION

Based on the foregoing, the defendant's motion to strike is granted as to count two and denied as to counts three and four.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. The defendant also moved to strike count five;  however, at short calendar on May 20, 2013, the plaintiff conceded that count five was legally insufficient as pleaded.   Upon this concession, the court granted the defendant's motion with respect to count five..  FN1. The defendant also moved to strike count five;  however, at short calendar on May 20, 2013, the plaintiff conceded that count five was legally insufficient as pleaded.   Upon this concession, the court granted the defendant's motion with respect to count five.

FN2. The plaintiff does not allege explicitly that each violation of § 38a–816(6) was committed with such frequency as to indicate a general business practice.   However, it would be procedurally improper for this court to strike subparagraphs of the CUTPA cause of action.   This is because each subparagraph of paragraph twenty-five of count four does not constitute a separate cause of action;  instead, each is a part of the CUTPA cause of action alleged in count four.   See Donovan v. Davis, 85 Conn. 394, 397, 82 A. 1025 (1912) (“A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated ․”);  Edelwich v. 33 Sumner Associates, L.P., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 93 0527767 (May 19, 1994, Hennessey, J.) (“[A] motion to strike a single paragraph is improper when the paragraph does not purport to state a separate cause of action”)..  FN2. The plaintiff does not allege explicitly that each violation of § 38a–816(6) was committed with such frequency as to indicate a general business practice.   However, it would be procedurally improper for this court to strike subparagraphs of the CUTPA cause of action.   This is because each subparagraph of paragraph twenty-five of count four does not constitute a separate cause of action;  instead, each is a part of the CUTPA cause of action alleged in count four.   See Donovan v. Davis, 85 Conn. 394, 397, 82 A. 1025 (1912) (“A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated ․”);  Edelwich v. 33 Sumner Associates, L.P., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 93 0527767 (May 19, 1994, Hennessey, J.) (“[A] motion to strike a single paragraph is improper when the paragraph does not purport to state a separate cause of action”).

Fischer, Jack W., J.