David L. Labonne v. Hingham Mutual Fire Insurance Company (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 133)

The defendant, Hingham Mutual Fire Insurance Company, filed this motion to strike on October 3, 2013, seeking to strike counts three and four of the second amended complaint of the plaintiff, David L. Labonne, on the grounds that the plaintiff fails to allege legally sufficient claims for breach of the implied covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act (CUTPA).   The plaintiff filed an objection on November 7, 2013, arguing that both contested claims are legally sufficient.   This matter was argued before the court on November 12, 2013.

BACKGROUND

The plaintiff filed this action with the court on September 4, 2012.   The plaintiff's four-count second amended complaint (the complaint), which is the operative complaint and the subject of the present motion, was subsequently filed on September 18, 2013.   In the complaint, the plaintiff alleges the following relevant facts.   On February 2, 2011, and for some time prior thereto, the plaintiff had a contract for property insurance with the defendant, which provided coverage for the dwelling, personal property, and loss of use of the plaintiff's real property on Newent Road in Lisbon, Connecticut.   At all times relevant to this case, all premiums had been paid and said policy was in full force and effect.   On or about February 2, 2011, heavy snow caused structural and other damages to the plaintiff's home on the property.   The defendant was timely notified of the damage.

The plaintiff alleges four claims against the defendant based on the defendant's conduct after being notified of the damage.   Count one sounds in breach of contract, alleging several ways in which the defendant breached the insurance contract, including failing to adequately investigate the plaintiff's insurance claim and de facto denying coverage to the plaintiff.   In count two, the plaintiff claims that the defendant was negligent, citing several reasons, including failing to adequately investigate the insurance claim and failing to make timely payments and reimbursement to the plaintiff.

The final two counts—count three and count four—are the subjects of the present motion.   Count three is a claim for breach of the implied covenant of good faith and fair dealing.   The plaintiff alleges that the defendant breached the covenant by:  failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies, in violation of General Statutes § 38a–816(6)(B);  refusing to pay claims without conducting a reasonable investigation, in violation of § 38a–816(6)(D);  not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear, in violation of § 38a–816(6)(F);  compelling insured 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 insured, in violation of § 38a–816(6)(G);  failing to adequately investigate the plaintiff's insurance claim for the damage;  de facto denying coverage to the plaintiff;  and several other bases.   In count four, the plaintiff claims that the defendant violated CUPTA, General Statutes § 42–110a et seq., and the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a–815 et seq.   Specifically, the plaintiff alleges that the defendant, through its agents, servants, and employees, notified the plaintiff that it insured his property and would provide coverage to him.   The allegations continue by stating that the defendant accepted the plaintiff's claim and yet continually engaged in a pattern of refusing to pay for the property damage despite demand on the defendant to do so.   Count four concludes by alleging that these acts, omissions, and misrepresentations of the defendant were unfair or deceptive acts in the conduct of trade or commerce and insurance in violation of CUTPA and CUIPA, that the defendant “made it a business practice and pattern to act in said fashion,” and the plaintiff suffered damages as a result of the defendant's actions.

LAW RE MOTION TO STRIKE

“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 role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “[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.)  Id., 116–17.   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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged,” because “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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

ANALYSIS

In the present motion, the defendant moves to strike counts three and four of the plaintiff's complaint.   The defendant argues that count three should be stricken for failing to allege a legally sufficient claim for breach of the implied covenant of good faith and fair dealing, because the plaintiff has failed to provide facts that establish that the defendant's conduct was prompted by an “interested or sinister motive.”   The defendant argues that count four should be stricken for failing to allege a legally sufficient CUPTA claim, because the plaintiff has not alleged facts to establish that the defendant's conduct constituted a “general business practice” of the defendant.   In response, the plaintiff contends that he has provided sufficient facts in counts three and four, either directly or by reasonable inference, to overcome both of these arguments.   For the reasons more fully set forth below, the court concludes that count three is legally sufficient and count four is not legally sufficient.

I

COVENANT OF GOOD FAITH AND FAIR DEALING

Count three of the plaintiff's complaint involves a claim that the defendant breached the implied covenant of good faith and fair dealing.  “[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every 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.”   (Internal quotation marks omitted.)  Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 794, 67 A.3d 961 (2013).   In Connecticut, it is well established that an independent cause of action exists for a bad faith denial of insurance policy benefits.¹  Id., 794 n.33. “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 ․ 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.”  (Emphasis added;  internal quotation marks omitted.)  Id., 794–95.

In the present case, the defendant argues that the plaintiff's bad faith claim is legally insufficient, because it fails to allege an “interested or sinister motive” on the part of the defendant.   In Potter v. Aetna Life Ins. Co., Superior Court, judicial district of New London, Docket No. CV–12–6015263–S (April 18, 2013, Devine, J.), this court noted that a split of authority exists in the Superior Court regarding the pleading requirements for a viable claim of bad faith.   While some courts require specific allegations establishing an interested or sinister motive, this court adopted the position that the plaintiff need only allege sufficient facts from which a reasonable inference of interested or sinister motive can be made.  Id. This court found that view to be more faithful to the well established principles on a motion to strike that allegations in a complaint can be implied if reasonable, without needing to be expressly alleged, and that the court construes allegations broadly in the manner most favorable to sustaining their legal sufficiency.   Id.

With these principles in mind, the court reviews the complaint in this case.   The thrust of count three of the plaintiff's complaint is that the defendant acted in bad faith by denying coverage to the plaintiff for property damage covered by the subject insurance policy.   The plaintiff lists a number of allegations to support his claim that the defendant acted in bad faith, including that the defendant did not conduct a reasonable investigation of the insurance claim, did not evaluate the claim objectively, offered substantially less than the claim was worth, violated a number of statutes that proscribe conduct considered to be unfair practices by insurers, and de facto denied coverage to the plaintiff.   The totality of these allegations, accepted as true and construed broadly in favor of sustaining their legal sufficiency, as the court must, are sufficient in order to draw a reasonable inference that the defendant committed these acts with an “interested or sinister” motive in order to avoid paying benefits owed to the plaintiff under the parties' insurance contract.   Consequently, count three is legally sufficient in order to withstand a motion to strike.

II

CUTPA

In count four, the plaintiff sets forth a claim that the defendant engaged in conduct that violated the Connecticut Unfair Trade Practices Act (CUTPA);  General Statutes § 42–110a et seq.   CUTPA prohibits unfair trade practices, stating that:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  General Statutes § 42–110b(a).  “The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce.”  (Internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 493, 977 A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36 A.3d 662 (2012).

However, in order to allege a proper cause of action under CUTPA in the context of an insurance claim, the plaintiff must also allege facts establishing a violation of the Connecticut Unfair Insurance Practices Act (CUIPA);  General Statutes § 38a–815 et seq.   Our Supreme Court recently reached this conclusion in State v. Acordia, Inc., 310 Conn. 1, 37, 73 A.3d 711 (2013), and, in doing so, resolved a split of authority on the issue in the trial courts.  Acordia held:  “Because CUIPA provides the exclusive and comprehensive source of public policy with respect to general insurance practices, we conclude that, unless an insurance related practice violates CUIPA or, arguably, some other statute regulating a specific type of insurance related conduct, it cannot be found to violate any public policy and, therefore, it cannot be found to violate CUTPA.”  Id.

One specific requirement of CUIPA, and the requirement at issue here, is that the misconduct that the insurer allegedly engaged in must occur with such frequency as to indicate a “general business practice.”   See id., 31;  see also General Statutes § 38a–816(6).   CUIPA's definition of unacceptable insurer conduct “reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention.”  (Internal quotation marks omitted.)  State v. Acordia, Inc., supra, 310 Conn. 31.   Thus, a plaintiff's single, isolated encounter with an unfair insurance practice is not enough on its own to violate CUIPA if the conduct is not also a general business practice of the insurer.

As its sole ground for moving to strike count four in this case, the defendant argues that the plaintiff has not properly pleaded that the defendant's conduct constituted a “general business practice” in order to establish a valid CUIPA violation to support his CUTPA claim.   In response, the plaintiff contends that he has pleaded enough in count four simply by alleging misconduct and stating that it was the defendant's “business practice and pattern to act in said fashion.”   The resolution of this issue hinges entirely on this court's position on a split of authority in the Superior Court, on which this court has not previously adopted a view.

“A split of authority exists [in the Superior Court] 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.”   Dadura v. NGM Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV–10–6004690–S (April 15, 2011, Swienton, J.).   Under this strict approach, courts typically require that the plaintiff plead specific instances in which the insurer has committed similar misconduct when handling the claims of other insureds.  Id. “However, other [courts] have 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.”  Id. Courts adhering to this more lenient view have reasoned that “[g]iven the remedial nature of CUIPA and given that it is to be liberally construed to give effect to the legislature's intent ․ the allegation of a general business practice in the plaintiff's complaint is sufficient to withstand a motion to strike.”  (Internal quotation marks omitted.)  Id.

There are genuine concerns with both sides of the split, as other courts have previously expressed.   See, e.g., Active Ventilation Products, Inc. v. Property & Casualty Ins. Co. of Hartford, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X09–CV–08–5023757–S (July 15, 2009, Shortall, J.T.R.).   On one hand, at the pleading stage and without having yet conducted discovery, it is burdensome and unrealistic to expect the plaintiff to have the intimate knowledge of an insurance company's business and its prior dealings with other claimants in order to cite specific instances of the insurer committing the same misconduct against other identified policyholders.   In addition, the strict view from the first line of cases generally does not provide that a general business practice can be implied from any other facts except expressly-pleaded specific instances of similar prior misconduct—thus, it overly restricts the means by which a general business practice could be proven, thereby neglecting the well established standard when ruling on a motion to strike that pleadings must be construed broadly and realistically in favor of sustaining their legal sufficiency, and that what is necessarily implied in the complaint need not be expressly alleged.   See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252–53 (motion to strike standard);  see also 710 Long Ridge Road Operating Co. II, LLC v. Korsun, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6013248–S (November 15, 2013, Truglia, J.) (“[i]n ruling on a motion to strike the court must assume that all well-stated allegations of fact, and any reasonable inferences that can be drawn therefrom, are true” [internal quotation marks omitted] ).

On the other hand, the second line of cases raises concerns because, in the opinion of this court, a bare allegation that an insurer's conduct is a “general business practice,” without more, is a mere legal conclusion and should not be admitted as true on a motion to strike.   See Seven Oaks Partners, L.P. v. Vigilant Ins. Co., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–09–5012672–S (July 7, 2010, Adams, J.) (“[w]ith its blanket contention that the actions of the defendant constitute a general business practice, the plaintiff merely alleges a legal conclusion, which is insufficient to withstand a motion to strike”);  see also Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000) (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] ).   Moreover, allowing such a claim to go forward raises concerns over “whether a plaintiff should be able to invoke the panoply of pretrial discovery techniques to rummage around in the company's books and records” simply by alleging that the defendant's conduct was a “general business practice” as a talismanic phrase to survive a motion to strike.  Active Ventilation Products, Inc. v. Property & Casualty Ins. Co. of Hartford, supra, Superior Court, Docket No. X09–CV–08–5023757–S.

These are all valid concerns, and yet the two positions are vastly divergent.   This court believes that the stricter standard is too strict and the lenient standard is too lenient in terms of the specificity required of the plaintiff, particularly considering the standard of review on a motion to strike.   Accordingly, this court proposes and adopts a compromise position that more reasonably balances the equities of both parties, while also remaining most faithful to the standard of review on a motion to strike.   In this court's view, a plaintiff can satisfy the “general business practice” requirement in one of two ways:  (1) the plaintiff can comply with the strict line of cases by citing multiple specific instances of the insurance company engaging in similar misconduct with other claimants, or (2) the plaintiff can allege facts related only to his or her isolated claim if a reasonable inference can be drawn therefrom that the insurer's conduct toward the plaintiff was part of its general business practices—in other words, the court must be able to reasonably infer that if the insurance company committed this misconduct against the plaintiff, they likely commit it regularly against other claimants as well.²  Therefore, even if a plaintiff cannot plead specific instances of similar prior misconduct by the insurer, circumstantial evidence of a general business practice derived from the insurer's handling of the plaintiff's isolated claim is sufficient to withstand a motion to strike.³

The result under this standard is that the plaintiff is not penalized for his lack of intimate knowledge regarding the company during the pleading stage of the case, and the defendant is protected from a fishing expedition during discovery if the plaintiff cannot plead anything beyond a bare allegation that a general business practice is at issue.   If a reasonable inference of a general business practice can be drawn from the allegations, however, then this court is of the opinion that the claim should survive a motion to strike and the plaintiff should have the opportunity to investigate it through depositions and other discovery.   After that, the defendant can more appropriately challenge the claim at trial or on a motion for summary judgment, where the plaintiff will be required to back up his claim with actual evidence.

Turning now to the present case, the court applies this standard to the CUTPA claim in count four of the complaint to determine its legal sufficiency.   The plaintiff begins count four by alleging that he had a contract with the defendant for property insurance on his home, and that his home was damaged by heavy snow.   The plaintiff next alleges that the defendant notified the plaintiff that it would provide coverage to him, and would conduct a fair investigation of the claim.   He further alleges that the defendant later accepted his claim and “yet continually engaged in a pattern of refusing to pay for property damage despite demand on [the defendant] to do so.”   The plaintiff concludes count four by stating that the defendant's acts were unfair and deceptive, in violation of CUTPA and CUIPA, and “said defendant has made it a business practice and pattern to act in said fashion.”

The plaintiff's allegation that the defendant “made it a business practice and pattern to act in said fashion” is a legal conclusion that must be supported by factual allegations, expressed or implied.   As previously discussed, such factual allegations could be implied if reasonable from the facts regarding the plaintiff's isolated insurance claim, even if the plaintiff cannot specifically allege prior instances of the defendant's misconduct against other claimants.   From the present allegations in the complaint, however, such an inference cannot be drawn.   The plaintiff presents allegations relating to his isolated insurance claim only and, based on the limited details provided, it cannot be reasonably inferred that the defendant engages in the alleged conduct with other claimants at such frequency as to indicate a general business practice.   Thus, count four must be stricken and the plaintiff may replead if warranted.   See Practice Book § 10–44.

ORDER

For the foregoing reasons, the defendant's motion to strike (# 133) is hereby denied as to count three and granted as to count four.

Devine, J.

FOOTNOTES

FN1. Our courts treat the terms “bad faith” and “breach of the covenant of good faith and fair dealing” as interchangeable, and apply the same analysis to claims described using either of these terms.  Capstone Building Corp. v. American Motorists Ins. Co., supra, 308 Conn. 794 n.34..  FN1. Our courts treat the terms “bad faith” and “breach of the covenant of good faith and fair dealing” as interchangeable, and apply the same analysis to claims described using either of these terms.  Capstone Building Corp. v. American Motorists Ins. Co., supra, 308 Conn. 794 n.34.

FN2. Whether the “general business practice” requirement can be satisfied by implication based on the insurer's conduct in handling a plaintiff's isolated claim must be determined on a case-by-case basis, but some potential examples might include:  (a) the practice at issue is prescribed in company documents or manuals intended for its employees;  (b) the insurer, through its words or actions, or that of its employees, indicates that the procedure it followed was performed in accordance with company policy (for example, defending its performance during an investigation by informing the claimant that its investigations are typically performed in that manner);  (c) the procedure at issue appears standardized—for instance, relying on a particular pricing guide, formula, or valuation method for valuing the plaintiff's claim—such that it is reasonable to infer that the insurer uses the same procedure with other claimants, being that it is unlikely that the insurer singled out the plaintiff as a rare or isolated instance to use that procedure;  or (d) the misconduct occurs in response to such a seemingly ordinary, every-day, run-of-the-mill claim that it is reasonable to infer that the insurer's conduct was in accordance with its general business practices—in other words, the plaintiff's claim was so lacking in uniqueness that it is fair to infer that the insurer's response was not unique either.In fact, in many instances, these methods of proof could be more indicative of a general business practice than if the plaintiff had rounded up a few other insureds who experienced a similar issue with the insurer.   After all, citing similar previous incidences of the insurer's misconduct is itself nothing more than a method of implying a general business practice.   These points raise further doubts about the reasonableness of the strict view..  FN2. Whether the “general business practice” requirement can be satisfied by implication based on the insurer's conduct in handling a plaintiff's isolated claim must be determined on a case-by-case basis, but some potential examples might include:  (a) the practice at issue is prescribed in company documents or manuals intended for its employees;  (b) the insurer, through its words or actions, or that of its employees, indicates that the procedure it followed was performed in accordance with company policy (for example, defending its performance during an investigation by informing the claimant that its investigations are typically performed in that manner);  (c) the procedure at issue appears standardized—for instance, relying on a particular pricing guide, formula, or valuation method for valuing the plaintiff's claim—such that it is reasonable to infer that the insurer uses the same procedure with other claimants, being that it is unlikely that the insurer singled out the plaintiff as a rare or isolated instance to use that procedure;  or (d) the misconduct occurs in response to such a seemingly ordinary, every-day, run-of-the-mill claim that it is reasonable to infer that the insurer's conduct was in accordance with its general business practices—in other words, the plaintiff's claim was so lacking in uniqueness that it is fair to infer that the insurer's response was not unique either.In fact, in many instances, these methods of proof could be more indicative of a general business practice than if the plaintiff had rounded up a few other insureds who experienced a similar issue with the insurer.   After all, citing similar previous incidences of the insurer's misconduct is itself nothing more than a method of implying a general business practice.   These points raise further doubts about the reasonableness of the strict view.

FN3. The trial courts that are proponents of the strict view for pleading a general business practice often cite to Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), and Lees v. Middlesex Ins. Co., 229 Conn. 842, 643 A.2d 1282 (1994), as authority for the proposition that a CUTPA claim against an insurer cannot survive a motion to strike without expressly alleging specific instances of similar misconduct against other claimants.   This court is of the opinion that its view presented here is not in contravention of either of these cases.   In Lees, the Supreme Court held—in the context of a motion for summary judgment —that “alleged improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a ‘general business practice.’   “ Lees v. Middlesex Ins. Co., supra, 849.   As required on a summary judgment motion, the Lees court expected the plaintiff to support his claim with evidence, which he failed to do.   Moreover, even if Lees were applied in the context of a motion to strike, circumstantial evidence would meet the requirement of pleading “any evidence of misconduct” set forth in Lees —nowhere does Lees require express allegations regarding identified similarly-wronged claimants.Mead, on the other hand, is more applicable to the present case because it was decided under the motion to strike standard, where express and implied facts are automatically treated as true.   In Mead, the Supreme Court affirmed a trial court's striking of CUIPA and CUTPA claims because the claims only referenced the insurer's failure to pay the plaintiff, and the plaintiff did not make any reference claiming that the conduct constituted a general business practice—not even a conclusory allegation that it was a general business practice.  Mead v. Burns, supra, 655–56, 659.   Nothing within Mead suggests that a heightened motion to strike standard should apply here, such that a general business practice cannot be implied from the insurer's handling of the plaintiff's claim alone.   In fact, the Mead court even suggested that the plaintiff could employ “modern discovery techniques” to overcome the difficulty of complying with the statute containing the requirement of pleading a general business practice;  id., 666;  thereby indicating that the plaintiff need not necessarily have intimate knowledge of the insurer's specific prior dealings with other claimants until after pleading and discovery.   Therefore, this court's position conforms to Mead and Lees, and the well established standard for ruling on a motion to strike..  FN3. The trial courts that are proponents of the strict view for pleading a general business practice often cite to Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), and Lees v. Middlesex Ins. Co., 229 Conn. 842, 643 A.2d 1282 (1994), as authority for the proposition that a CUTPA claim against an insurer cannot survive a motion to strike without expressly alleging specific instances of similar misconduct against other claimants.   This court is of the opinion that its view presented here is not in contravention of either of these cases.   In Lees, the Supreme Court held—in the context of a motion for summary judgment —that “alleged improper conduct in the handling of a single insurance claim, without any evidence of misconduct by the defendant in the processing of any other claim, does not rise to the level of a ‘general business practice.’   “ Lees v. Middlesex Ins. Co., supra, 849.   As required on a summary judgment motion, the Lees court expected the plaintiff to support his claim with evidence, which he failed to do.   Moreover, even if Lees were applied in the context of a motion to strike, circumstantial evidence would meet the requirement of pleading “any evidence of misconduct” set forth in Lees —nowhere does Lees require express allegations regarding identified similarly-wronged claimants.Mead, on the other hand, is more applicable to the present case because it was decided under the motion to strike standard, where express and implied facts are automatically treated as true.   In Mead, the Supreme Court affirmed a trial court's striking of CUIPA and CUTPA claims because the claims only referenced the insurer's failure to pay the plaintiff, and the plaintiff did not make any reference claiming that the conduct constituted a general business practice—not even a conclusory allegation that it was a general business practice.  Mead v. Burns, supra, 655–56, 659.   Nothing within Mead suggests that a heightened motion to strike standard should apply here, such that a general business practice cannot be implied from the insurer's handling of the plaintiff's claim alone.   In fact, the Mead court even suggested that the plaintiff could employ “modern discovery techniques” to overcome the difficulty of complying with the statute containing the requirement of pleading a general business practice;  id., 666;  thereby indicating that the plaintiff need not necessarily have intimate knowledge of the insurer's specific prior dealings with other claimants until after pleading and discovery.   Therefore, this court's position conforms to Mead and Lees, and the well established standard for ruling on a motion to strike.

Devine, James J., J.