Luz Pagan v. Travelers Home & Marine Ins. Co. et al. (2013)

MEMORANDUM OF DECISION

The plaintiffs in this matter are Luz Pagan and Jose Rivera, the parents of Rafael J. Rivera who lost his life when the motor vehicle he was operating was struck by a hit and run driver.   Jose Rivera also sues in his capacity as the administrator of the estate of Rafael J. Rivera.   The defendants are The Travelers Home and Marine Insurance Company (“Travelers”), which issued a motor vehicle policy to the plaintiffs providing for uninsured/underinsured motorist coverage, and Tooher–Ferraris Agency, Inc. (“Tooher–Ferraris”), an insurance broker and agent from whom the plaintiff obtained insurance coverage.   In their first count the plaintiffs assert a claim against Travelers under the uninsured/underinsured motorist provisions.   In their second count the plaintiffs claim that Tooher–Ferraris was negligent in failing to adequately analyze the family's insurance coverage and recommend appropriate levels of uninsured/underinsured coverage.   In their fifth count the plaintiffs claim that Tooher–Ferraris breached a fiduciary duty by failing to adequately analyze the family's insurance coverage and recommend appropriate levels of uninsured/underinsured coverage.   The sixth count alleges that the conduct of Tooher–Ferraris constituted a violation of the Connecticut Unfair Trade Practices Act.¹

On June 17, 2013 defendant Tooher–Ferraris filed an answer and special defenses to the complaint.   The first special defense alleges that:  1) plaintiff “Jose Rivera, signed an uninsured/underinsured coverage form electing $300,000 on or about September 3, 2004”;  2) the form signed by Jose Rivera contained an “Informed Consent Form Notice to Insured” explaining uninsured/underinsured motorists coverage;  and 3) the plaintiffs' claims are therefore barred in whole or in part.

Presently before the court is the plaintiffs' motion to strike dated June 28, 2013 (# 138.00), which seeks to strike the first special defense of defendant Tooher–Ferraris on the ground that “[a]s a matter of law, the provision of an Informed Consent Form Notice to Insured by an insurance carrier does not satisfy an insurance agent's duty to recommend, and attempt to procure, the proper amount of coverage based on an insured's individual circumstances.”

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [pleading] ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.”   Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 (2001).   In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint challenged by [an opposing party'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.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

Practice Book § 10–41 requires that:  “Each motion to strike raising ․ claims of legal insufficiency ․ shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   In this case the only claim of legal insufficiency raised by the plaintiffs is “[a]s a matter of law, the provision of an Informed Consent Form Notice to Insured by an insurance carrier does not satisfy an insurance agent's duty to recommend, and attempt to procure, the proper amount of coverage based on an insured's individual circumstances.”

In the memorandum of decision filed in support of their motion to strike (# 139.00), the plaintiffs claim that an insurance agent has a duty under the law “to explain underinsured/uninsured motorists coverage to the [insured], to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount of coverage based on the plaintiff's individual circumstances and to attempt to procure that amount of coverage and offer it to the [insured].”  Byrd v. Ortiz, 136 Conn.App. 246, 256 (2012).   They point out that the first special defense of defendant Tooher–Ferraris simply states that Jose Rivera was provided with an informed consent form stating the amount of underinsured/uninsured motorists coverage under his policy.   However, the form does not evidence any recommendations made by defendant Tooher–Ferraris as to the amount of coverage which would be appropriate under his individual circumstances.

In its memorandum filed in opposition to the motion to strike (# 143.00), defendant Tooher–Ferraris ask the court to deny the motion to strike claiming that the “Informed Consent Form Notice to Insured” conclusively establishes that Jose Rivera was fully informed as to all of his options regarding amount of underinsured/uninsured motorists coverage available under his policy.

“Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nevertheless, that the plaintiff has no cause of action.”  Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456 (2005);  Practice Book § 10–50.   The court agrees with the defendant that the “Informed Consent Form Notice to Insured” has evidentiary value.   Indeed, the finder of fact may well conclude that the form, standing alone, precludes a finding that the plaintiffs have proven, by a preponderance of the evidence, that the defendant breached its duties under the law to Jose Rivera, with respect to the levels of coverage under his automobile policy.   Nevertheless, the execution of a form by Jose Rivera providing him with information concerning his coverage is not consistent with the plaintiffs' claims that defendant Tooher–Ferraris failed to recommend the appropriate levels of coverage to Jose Rivera.   Accordingly, this allegation does not constitute a proper special defense as defined by Practice Book § 10–50.   Evidence of the signing of the “Informed Consent Form Notice to Insured” would be admissible in defense of those claims even if a special defense had not been asserted.

The court finds that defendant Tooher–Ferraris' first special defense fails to allege a legally sufficient special defense and accordingly grants the plaintiffs' motion to strike that defense.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. The third and fourth counts were striken by the court, (Genuario, J.), by memorandum of decision dated April 17, 2013..  FN1. The third and fourth counts were striken by the court, (Genuario, J.), by memorandum of decision dated April 17, 2013.

Tobin, David R., J.T.R.