William Waller v. The Travelers Home and Marine Insurance Company (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (# 111.00)

In his complaint, the plaintiff alleges the following facts.   On March 7, 2011, the plaintiff was operating a motor vehicle owned by Sullivan J. Campbell on Route 302 in Bethel when he collided with another motor vehicle operated by Bjorn Meyer.   As a result, the plaintiff suffered numerous physical injuries as well as other losses and damages.   Meyer's insurance policy with The State Farm Mutual Automobile Insurance Company (State Farm) provided $50,000 in liability coverage which was tendered to the plaintiff in full.   The award from State Farm, however, did not cover all the plaintiff's costs and damages resulting from the incident.   The motor vehicle operated by the plaintiff at the time of the incident was insured with the defendant and included underinsured motor vehicle coverage with a set limit of $300,000.   The plaintiff claims that the defendant is responsible for covering the plaintiff's remaining costs and damages under the underinsured motorist coverage provision of Campbell's insurance policy.

On February 15, 2013, the defendant filed its answer and special defenses.   The defendant asserts by way of its answer and special defenses, designated special defenses one, five and six, respectively, that the plaintiff has failed to exhaust any and all liability policies of the tortfeasor thereby barring the present action;  that any and all monies received by way of health or medical benefits limit the plaintiff's damages to the extent of such payments;  and that any and all workers' compensation benefits that have been paid or are payable limit the plaintiff's damages to the extent of such payments.

On February 27, 2013, the plaintiff filed a motion to strike special defenses designated numbers one, five and six, along with a supporting memorandum of law and also submitted a copy of the executed release of Bjorn Meyer, the certificate of coverage and tender letter from State Farm, a copy of the check tendered to the plaintiff in the amount of $50,000 from State Farm and the affidavit of the plaintiff, dated February 25, 2013.   Per Ozalis, J., dated May 6, 2013, the plaintiff's motion was marked “OFF.”

On June 24, 2013, the plaintiff filed a different motion to strike special defenses along with a supporting memorandum of law, substantially similar to the previous filing which remains unclaimed, and submitted only a copy of the previously mentioned release of Bjorn Meyer and an affidavit of the plaintiff dated June 10, 2013.   On July 9, 2013, the defendant filed a memorandum of law in opposition to the plaintiff's motion to strike special defenses.   On July 11, 2013, the plaintiff filed a reply memorandum of law.   During oral argument held July 15, 2013, the defendant stipulated that the fifth special defense would be withdrawn.

“Whenever any party wishes to contest ․ the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39.  “[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (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 admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

“A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents.”  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 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 ․ pleadings, the [moving party] 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).  “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 ․ A motion to strike ․ requires no factual findings by the trial court.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).  “[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied.”  Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003).

Practice Book § 10–41 provides in relevant part that, “Each motion to strike any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim or insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency (emphasis added).”   The plaintiff's motion fails to meet that requirement.   “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted.”  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

As to the First Special Defense

The defendant's first special defense alleges that the plaintiff has failed to exhaust any and all liability policies insuring the tortfeasor, Bjorn Meyer.   There is no affidavit from the tortfeasor contained in the record that might establish that he had no other forms of insurance which might be applied to the plaintiff's claim against him.   Additionally, the plaintiff has relied upon facts not alleged in the pleadings.   The facts alleged in the first special defense, if proven, would constitute a valid defense.   For the foregoing reasons, the motion to strike the first special defense is denied.

As to the Sixth Special Defense

The defendant, Travelers, argues that the plaintiff is not entitled to stand on the fact that he never collected any workers' compensation nor any additional insurance proceeds which he needed to exhaust before bringing suit and it cites Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 17, 20, 615 A.2d 1032 (1992), wherein our Supreme Court held, “A claimant cannot elect to postpone a proceeding in the workers' compensation forum in favor of first making a demand for arbitration on the underinsured motorist insurance carrier and then argue that the value of the workers' compensation specific indemnity is speculative and therefore not a sum payable.”   For the foregoing reasons, the plaintiff's motion to strike the defendant's sixth special defense is hereby denied.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.