Opinion
No. CV 04-0832941S
October 17, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is a twelve-count second revised complaint against defendant insurance company and its procuring insurance agents Charles Carillo Insurance and David Carillo, arising from a fire at the home of plaintiff Matthew Crossen, for which he and his son, Robert Crossen, claiming to be an additional insured, seek damages for insufficient insurance payment by the insurance company and for various acts of negligence allegedly committed by the agents.
The insurance agents on July 14, 2005 moved to strike Counts 4, 5, 7, 8, 9, 10, 11 and 12, variously directed to them.
For the following reasons, all these counts have been found to be insufficient.
Count 4, (breach of fiduciary duty) because the plaintiff has failed to allege conduct amounting to dishonesty, disloyalty or immorality. See J.S.T. Development Corp. v. Vitrano, Superior Court, judicial district of New Britain, Docket No. CV 030521186 (June 22, 2004, McWeeny, J.) ( 37 Conn. L. Rptr. 590); Abelsame v. Foden, Superior Court, judicial district of Hartford, Docket No. CV 044000866 (March 23, 2005).
Count 5, (negligent infliction of emotional distress) because the plaintiff has failed to allege that the emotional distress was foreseeable and should have been foreseen by the defendant. See Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) in which our Supreme Court states "the plaintiff has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm." In Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 447, 672 A.2d 87 (2001) our Supreme Court observed: ("[T]he [requirement] differs from the standard foreseeability of the risk of harm requirement for negligence generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even [when] a breach of duty might otherwise be found . . ."); see also Hoffman v. Miller Memorial Community, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4001839 (August 2, 2005, Wiese, J.)
Count 7, (CUTPA) because the focus of the plaintiff's claim is that the defendant failed to procure the correct amount of insurance and such a claim goes to the professional competence of the defendant rather than to the entrepreneurial aspects of defendant's business. Also, the plaintiff has not alleged facts sufficient to establish a claim for misrepresentation under CUTPA. See Fields v. Prestileo, Superior Court, judicial district of Hartford, Docket No. CV 0569685 (August 25, 1999, Bishop, J.) citing Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-36, 699 A.2d 946 (1997); Estate of Ridgaway v. Cowles Connel, Superior Court, judicial district of Middlesex at Middletown, Docket No. X04 CV 03 0103516 (May 21, 2004, Quinn, J.).
Count 8, (Negligence) because the plaintiff Matthew Crossen has failed to allege a factual foundation establishing a duty owed to him by the defendant.
Count 9, (breach of fiduciary duty) because the plaintiff has failed to allege conduct amounting to dishonesty, disloyalty or immorality. See J.S.T. Development Corp. v. Vitrano, Superior Court, judicial district of New Britain, Docket No. CV 030521186 (June 22, 2004, McWeeny, J.); Abdelsame v. Foden, Superior Court, judicial district of Hartford, Docket No. CV 044000866 (March 23, 2005).
Count 10, (negligent infliction of emotional distress) because the plaintiff has failed to allege that the emotional distress was foreseeable and should have been foreseen by the defendant. See discussion under Count 5 supra.
Count 11, (breach of contract) because the plaintiff's (Matthew Crossen) allegation that he was a foreseeable beneficiary of the agreement between the defendant and the co-plaintiff, Robert Crossen, is insufficient to properly claim third-party rights under the agreement. See Estate of Ridgaway v. Cowles Connel, Superior Court, judicial district of Middlesex at Middletown, Docket No. X04 CV 03 0103516 (May 21, 2004, Quinn, J.) citing Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 531, 825 A.2d 72 (2003).
Count 12, (CUTPA) because the focus of the plaintiff's claim is that the defendant failed to procure the correct amount of insurance. Such a claim goes to the professional competence of the defendant. Further, the plaintiff has not alleged facts sufficient to establish a claim for misrepresentation under CUTPA. See Fields v. Prestileo, Superior Court, judicial district of Hartford, Docket No. CV 0569685 (August 25, 1999, Bishop, J.) citing Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-36, 699 A.2d 964 (1997); Estate of Ridgaway v. Cowles Connel, Superior Court, judicial district of Middlesex at Middletown, Docket No. X04 CV 03 0103516 (May 21, 2004, Quinn, J).
Also, the plaintiff, Matthew Crossen, has failed to allege direct contract between the defendant and himself as a third party and a CUTPA claim for unfair claims settlement practices by an insurance company may not be brought by a third party. Estate of Ridgaway v. Cowles Connel, Superior Court, judicial district of Middlesex at Middletown, Docket No. X04 CV 03-0103516 (May 21, 2004, Quinn, J.)
Motion to Strike counts 4, 5, 7, 8, 9, 10, 11 and 12 is granted.
Wagner, J.
Judge Trial Referee