Opinion
No. CV04 400 37 05
February 27, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Ramon Alers, the plaintiff, has filed a lawsuit against Berkley Administrators of Connecticut, Inc. (Berkley), the defendant, in which he alleges that Berkley failed to pay him workers' compensation benefits; that said failure violates the covenant of good faith and fair dealings; violates the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes §§ 38a-815 and 38a-816(6)(b), (d) and (f); and that the CUIPA violation comes within the scope of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a. The plaintiff seeks monetary damages, punitive and exemplary damages as to the CUIPA and CUTPA claims, and reasonable attorneys fees and costs with respect to the CUIPA and CUTPA claims.
In the plaintiff's amended complaint, he alleges that on or about December 26, 1995 and during the course of his employment as a truck driver with the city of Bridgeport (Bridgeport), he injured his knee and leg. As a result of this injury, he lost time from work and required medical treatment for which he sought compensation under the Workers' Compensation Act (Act). As an employer subject to the Act, Bridgeport insured its workers' compensation liability for its employees. In order to administer its insurance program, Bridgeport and the defendant purportedly entered into an agreement in which the defendant agreed to pay, administer and adjust the workers' compensation claims filed by Bridgeport employees.
The plaintiff alleges that he is entitled to workers' compensation benefits, including benefits for both permanent and temporary partial disability, and that the defendant failed to provide these benefits. The plaintiff's amended complaint references a workers' compensation hearing held in January 2004 in which the workers' compensation commissioner adjudicated that the plaintiff should be eligible for temporary partial benefits beginning November 2003.
On July 22, 2005, the court, Doherty, J., granted the defendant's motion to strike the plaintiff's revised complaint. First, the court held that the plaintiff's allegation that the defendant would issue a voluntary written agreement, and further that the workers' compensation commissioner determined the plaintiff should be eligible for benefits did not satisfy the requirements for establishing that the plaintiff is entitled to benefits. Second, the court held that the plaintiff failed to allege any insurance misconduct, other than to the plaintiff, on the part of the defendant, and therefore did not satisfy the requirements for establishing that the plaintiff has a CUIPA and CUTPA claim.
See Alers v. Berkley Administrators of Connecticut, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 04 4003705 (July 22, 2005, Doherty, J.).
The defendant's motion to strike the plaintiff's amended complaint is denied because the plaintiff has gone beyond merely restating the allegations of his revised complaint; has alleged sufficient facts upon which relief can be granted; and has properly alleged he is entitled to benefits under the Act.
"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). "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.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). "If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient." Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989).
I PLAINTIFF'S AMENDED COMPLAINT HAS GONE BEYOND MERELY RESTATING THE ALLEGATIONS CONTAINED IN HIS REVISED COMPLAINT
The defendant contends that the plaintiff merely restated, with minor alterations to mask its similar identity, the same allegations from his revised complaint in the amended complaint. "Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn.App. 679, 684, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002). The defendant's argument is without merit because in the instances where the plaintiff does make changes between the revised and amended complaints, the new language creates viable causes of action absent from the revised complaint.
First, in the plaintiff's revised complaint he alleges that he is entitled to workers' compensation benefits because "the Workers' Compensation Commissioner found that the Plaintiff should be eligible for temporary partial disability benefits . . ." In the plaintiff's amended complaint, however, he alleges that he is entitled to workers' compensation benefits because "the Workers' Compensation Commissioner found and made an adjudication that the Plaintiff should be eligible for temporary partial disability benefits . . ." (Emphasis added.) By adding the words "adjudication" to the amended complaint the plaintiff has created a viable cause of action. In Mora v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 212, 535 A.2d 390 (1988), the court held that one way a plaintiff can be entitled to workers' compensation benefits is "by the adjudication of the claim by the workers' compensation commissioner and the granting of an award to the employee." Therefore, the addition of the phrase "found and made an adjudication" in the plaintiff's amended complaint changes the viability of his claim to benefits, and thus is not a mere restatement of the previously stricken allegations of the plaintiff's revised complaint.
Second, the plaintiff changed the allegation language in the revised complaint from "Defendant's representation that it would issue a voluntary agreement . . ." to "Defendant's issuance of a voluntary agreement . . ." in the amended complaint. (Emphasis added.). According to Mora, another way a plaintiff can be entitled to workers' compensation benefits is "by the commissioner's approval of a written voluntary agreement entered into by the employer and employee . . ." Mora v. Aetna Life and Casualty Ins. Co., supra, 13 Conn.App. 212. Although no information is provided on whether the commissioner approved the voluntary agreement between the plaintiff and defendant, the amended complaint alleges that the agreement was issued, unlike the revised complaint which only alleges that the agreement would be issued. Therefore, the addition of the word "issuance" in the plaintiff's amended complaint changes the viability of his claim to benefits, and thus is not a mere restatement of the previously stricken allegations of the plaintiff's revised complaint.
Even with the absence of the allegation as to the commissioner's approval of the voluntary agreement, the count is sufficient because of the allegations concerning the finding and adjudication made by the commissioner.
The defendant additionally claims that the plaintiff is not entitled to workers' compensation benefits because the plaintiff has only alleged that the defendant and plaintiff entered a voluntary agreement, but not that the workers' compensation commissioner approved the agreement, as required by General Statutes § 31-296. The Mora court has already demonstrated that one way a plaintiff can be entitled to workers' compensation benefits is through the commissioner's approval of a voluntary agreement. Mora v. Aetna Life and Casualty Insurance Co., supra, 13 Conn.App. 212. Although the plaintiff does not specifically allege that the commissioner approved the agreement, nowhere does it state that the commissioner did not approve it. Additionally, when courts consider motions to strike, they "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.). Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Therefore, even though the plaintiff did not allege, in addition to the agreement being issued, that the commissioner approved the agreement, there are insufficient grounds to sustain the motion to strike.
II THE PLAINTIFF HAS SUFFICIENTLY ALLEGED CLAIMS UNDER CUTPA AND CUIPA
The defendant contends that the plaintiff has not sufficiently alleged claims under CUTPA and CUIPA because, pursuant to General Statutes § 38a-816(6), the plaintiff has not demonstrated that the defendant's unfair insurance claim settlement practice has been committed "with such frequency as to indicate a general business practice." In Mead v. Burns, 199 Conn. 651, 659, 509 A.2d 11 (1986), the court held that "claims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct." In the plaintiff's amended complaint, however, he alleges that "[s]aid wrongful acts were committed against other claimants, including the Plaintiff, with such frequency as to indicate a general business practice . . ." (Emphasis added.). Therefore, since the plaintiff references "other claimants," his allegations of the defendant's insurance misconduct are not based on a single act, and are sufficient to allege claims under CUTPA and CUIPA. Whether the plaintiff can prove the existence of wrongful acts committed against other claimants is not decided in addressing this motion to strike, only whether the plaintiff has properly pled it.
For the foregoing reasons, the court hereby denies the motion to strike all counts of the plaintiff's amended complaint because the plaintiff has gone beyond merely restating the allegations of his revised complaint; has alleged sufficient facts upon which relief can be granted; and has properly alleged he is entitled to benefits under the Act.
In finding that all three counts, as pleaded, validly state causes of action, it must be noted that "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001); See DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005); Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 874 A.2d 844 (2005).