Opinion
No. CV 03-0826713 S
May 13, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is a nine-count action against defendant Progressive Insurance Co. (Progressive) and its agent Norcom Insurance, Inc. (Norcom) seeking damages and other relief for failure to cover claims of loss suffered by plaintiff in a motor vehicle accident occurring on February 17, 2002. Progressive justifies its failure to cover damages on the ground that its insurance policy with plaintiff had lapsed prior to the accident.
Defendants have moved to strike all nine counts of the complaint sounding respectively in breach of contract, dealing in bad faith, civil theft, breach of fiduciary relationship, and CUTPA.
The underlying facts alleged in the complaint are as follows.
The plaintiff, Kimberly Gregory (Gregory), had purchased automobile insurance coverage provided by the defendant Progressive obtained through defendant Norcom, an authorized agent of Progressive. Gregory began coverage with Progressive in August of 1999 under policy number 60358568-0, and ended coverage in August of 2002. Payments were made during this time on an installment basis. Norcom informed Gregory that the incremental payments were acceptable as long as they were paid within eight days of the specified payment date. Over the term of the policy Gregory consistently made over twenty payments to Progressive past the specified payment dates but within the eight-day grace period.
The renewal premium for the auto insurance coverage for the period of February 15-August 15, 2002 had a payment due date of February 15, 2002. The eight-day grace period on this payment would run on February 23. Gregory had an auto accident on February 17, 2002, and on that date, Gregory made her premium payment via credit card to Progressive over the telephone. On February 18, Gregory called Progressive to inform them of the February 17 accident. During the conversation, Progressive informed Gregory that it would deny coverage for the accident because the policy had lapsed. Progressive has continued to deny coverage.
I
Motion to strike counts one and six breach of contract is denied because the complaint contains sufficient facts to properly allege a breach of contract claim.
II
Motion to Strike Counts Two, Three and Seven Breach of Covenant of Good Faith/Fair Dealing/Bad Faith is granted. Although the complaint contains facts that allege the defendant accepted late payments without penalty until a claim was made, and the defendant consciously disregarded the actions of its agent, Norcom, thereby "tortuously" repudiating the agreement concerning the eight-day grace period, Gregory has failed to establish that there was any ill will involved. Our Supreme Court has stated: "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 . . . Bad faith means more than mere negligence; it involves a dishonest purpose." Habetz v. Condon, 224 Conn. 231, 237 (1992).
In Share America, Inc. v. Ernst Young, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 150132 (July 2, 1999), Judge Sheldon stated:
[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith.
III
Motion to strike count five and eight alleging civil theft is denied.
The complaint alleges that Progressive and Norcom accepted premium payments for the car involved in the Feb. 17 accident, knowing that it had been rendered inoperable, and knowing that such payments were in excess of payments required to maintain the policy. The complaint also alleges that the retention of these monies "constituted civil theft as that term is set forth in C.G.S. § 52-564 and as it is defined by case law."
The facts alleged, if proven, are sufficient to establish that the defendants wrongfully took, obtained, or withheld Gregory's property with the intent to appropriate it to itself. See Suarez-Negrete v. Trotta, 47 Conn. App. 517, 520 (1998) (holding that the word "steals" as used by § 52-564 is synonymous with the definition of larceny found in § 53a-119).
IV
The motion to strike count four, based on violation of fiduciary relationship is denied. Although Progressive argues that count four contains no facts separate from the breach of contract cause of action and therefore the court should strike the count, the compliant specifically alleges facts, which if proven, would establish that a fiduciary relationship existed between the parties, and that relationship was breached. Cadle v. D'Addario, 268 Conn. 441, 455 (2004); Smith v. Allstate Indemnity Co., 1999 Ct. Sup. 15554 (Judicial District of Fairfield at Bridgeport, No. CV 98 0354137, 26 Conn. L. Rptr. 83, November 30, 1999, Melville, J.).
V
Motion to strike count nine; CUIPTA/CUIPA is granted. The facts alleged in count nine are not sufficient to establish that the actions of Progressive and/or Norcom constitute a general business practice, as required by CUIPA, and thereby CUTPA, under Lees v. Middlesex, 229 Conn. 842, 849 (1994).
In summary, motion to strike counts two, three, seven and nine is granted. Motion to strike counts one, four, five, six and eight is denied.
WAGNER, JTR