Opinion
No. CV05-4015572S
August 25, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#186)
BACKGROUND AND PROCEDURAL HISTORY
This is a seventeen-count complaint, however, only the second, third and fourth counts are relevant to this motion to strike. On November 23, 2005, the plaintiff, William Heinrichs, filed this seventeen-count amended complaint against the defendants, Danbury Insurance Co. (Danbury), Rocha Construction, LLC, Frank Rocha, Ricci Construction Group, Inc., John Ricci and Select Painting, Inc. Danbury's motion to strike relates to injuries and losses allegedly sustained by the plaintiff after Danbury denied coverage on the plaintiff's homeowners' insurance police for property located at 93 Main Street in Cheshire.
The plaintiff alleges in the second and third counts, that Danbury's conduct qualifies as a violation of General Statutes § 38a-816 (CUIPA) and General Statutes § 42-110a et seq. (CUTPA), respectively. In count four, the plaintiff claims that Danbury is liable for intentional infliction of emotional distress. On March 10, 2008, Danbury filed the present motion to strike. Then, on April 16, 2008, the plaintiff filed an objection to Danbury's motion. Thereafter, on April 21, 2008, Danbury filed a reply to the plaintiff's objection.
General Statutes § 38a-816(6) provides: "Unfair claim settlement practices.
Committing or performing with such frequency as to indicate a general business practice any of the following: (a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies; (c) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (d) refusing to pay claims without conducting a reasonable investigation based upon all available information; (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; (g) compelling insureds 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 insureds; (h) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; (i) attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured; (j) making claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made; (k) making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (l) delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; (m) failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; (o) using as a basis for cash settlement with a first party automobile insurance claimant an amount which is less than the amount which the insurer would pay if repairs were made unless such amount is agreed to by the insured or provided for by the insurance policy."
DISCUSSION Timeliness
We begin with discussion of plaintiff's objection to Danbury's motion on grounds of timeliness.
The plaintiff has failed to provide the court with any Practice Book rule, statute, or case law that would support his objection. It is well settled that the court is not "required to review issues that have been improperly presented . . . through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Citation omitted; internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn.App. 123, 130-31, 884 A.2d 7 (2005).
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). "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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). Finally, "conclusory statements absent supportive facts [are] insufficient to survive [a] motion to strike . . ." (Emphasis added.) Melfi v. Danbury, 70 Conn.App. 679, 686, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).
I CUTPA/CUIPA
Danbury argues that the plaintiff's CUIPA count is legally insufficient because CUIPA does not provide the plaintiff with a private right of action. Additionally, Danbury maintains that the plaintiff's CUTPA count should be stricken because the plaintiff has failed to allege that Danbury's conduct was "part of a general trade or business practice."
The plaintiff responds that he is not attempting to recover under his CUIPA claim. Instead, he asserts that his CUIPA count is merely a vehicle through which he is bringing his CUTPA claim and that it is appropriate to employ a CUTPA count in this manner.
Additionally, the plaintiff points to specific allegations in his complaint that he insists are sufficient to meet the "general trade or business" standard for a CUTPA claim.
Our examination is guided by our Supreme Court decision in Lees v. Middlesex Insurance Co., 229 Conn. 842, 850 (1994). Our Supreme Court has "concluded that a CUTPA claim based on an alleged unfair claim settlement practice prohibited by § 38a-816(6) required proof, as under CUIPA, that the unfair settlement practice had been committed or performed by the defendant with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., supra, p. 850 (1994).
"In requiring proof that the insurer has engaged in unfair claim settlement practices with such frequency as to indicate a general business practice, the legislature has manifested a clear intent to exempt from coverage under CUIPA isolated instances of insurer misconduct . . . The gravamen of the plaintiff's claim is that the defendant unfairly failed to settle her claim, and her claim alone. We conclude that the defendant's 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 as required by § 38a-816(6)." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 849.
Here, virtually all of the plaintiff's allegations relate to the handling of his one insurance claim. As noted, the "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 as required by 38a-816(6)." Lees v. Middlesex Insurance Co., supra, 229 Conn. 849.
The plaintiff argues that he has set forth a legally sufficient cause of action because he alleges that "upon information and belief, [Danbury] has similarly failed to properly investigate claims and misled insureds with respect to Danbury's intention to reimburse the insured for covered losses with such frequency as to indicate a general business practice." This conclusory statement, however, is unsupported by any factual allegations and is therefore insufficient to overcome a motion to strike. See Melfi v. Danbury, supra, 70 Conn.App. 686.
The plaintiff points to several cases in which other plaintiffs were not required to provide factual support for allegations that are similar to those set forth in the plaintiff's complaint. See, e.g., Nation v. Allstate Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 04 0093456 (September 7, 2005, Wilson, J.) ( 39 Conn. L. Rptr. 886) ("[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 court holds that the allegation of a general business practice in the plaintiff's complaint is sufficient to withstand a motion to strike"); Massotti v. Allstate Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0192061 (May 16, 2003, Lewis, J.T.R.) [ 34 Conn. L. Rptr. 615] (permitting the plaintiff to plead broad, unsupported allegations of general business practice). A number of courts, however, do not permit plaintiffs to set forth conclusory statements that are unsupported by factual allegations. See, e.g., Minnesota Lawyers Mutual Ins. Co. v. Lancia, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412468 (April 17, 2006, Hiller, J.) ("second count does fail to set forth a CUIPA/CUTPA cause of action because it merely states, in conclusory fashion, that the actions of MLM constitute a general business practice"); Argueta v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 020820009 (February 20, 2004, Wagner, J.T.R.) (granting motion to strike because "conclusory allegations . . . are not supported by a factual basis establishing any other instance or instances demonstrating frequency indicative of a general business practice." This court concludes that this second line of cases is more persuasive as these cases abide by the well settled rule that "conclusory statements absent supportive facts [are] insufficient to survive [a] motion to strike . . ." Melfi v. Danbury, supra, 70 Conn.App. 686.
Accordingly, the plaintiffs allegations concerning Danbury's handling of his insurance claim are insufficient, standing alone, to state a cause of action for unfair insurance settlement practices under CUTPA.
The plaintiff concedes that his CUIPA claim is simply a vehicle through which to maintain his CUTPA claim. Even if CUIPA does provide for a private right of action, it should be noted that the court now lacks subject matter jurisdiction over the plaintiff's CUIPA count. "Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings . . . We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law . . . [W]here the question presented is purely academic, we must refuse to entertain the appeal . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . In a word, [j]urisdiction over an appeal requires the existence of an actual and existing controversy . . . Mootness deprives this court of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Twichell v. Guite, 53 Conn.App. 42, 51-53, 728 A.2d 1121 (1999).
In the present case, the plaintiff conceded at oral argument that he is not seeking to recover under his CUIPA count, but instead is using it as a means to recover under the now stricken CUTPA count. As there is no longer an actual controversy between the parties regarding the plaintiff's CUIPA claim, that claim is no longer justiciable.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Regarding the plaintiff's fourth count, Danbury argues that the plaintiff's allegations are insufficient to support a claim for intentional infliction of emotional distress. Specifically, Danbury maintains that, based upon the plaintiffs allegations, Danbury's conduct does not qualify as "extreme and outrageous." In response, the plaintiff asserts that Danbury's "deceptive, misleading, and egregious actions in investigating and denying [the plaintiff's] claim are extreme and outrageous."
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119, 125 (2003). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Appleton v. Board of Education, supra, 254 Conn. 210.
Finally, in Carrol v. Allstate Ins. Co., supra, 262 Conn. 443-44, the court held that "[i]n the present case, the evidence was not sufficient for a jury reasonably to conclude that the defendant's conduct in its fire investigation was extreme and outrageous. The plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had been set deliberately. As distressing as this insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress."
In the present case, the plaintiff alleges that Danbury "unfairly denied coverage" to the plaintiff "based in large part upon the unsubstantiated, self-serving representations of a third party, Rocha, who was facing significant liability himself and was thus clearly motivated to proffer a false version of events." The plaintiff further alleges that Danbury "failed to interview two of Rocha's own employees who had first-hand knowledge of the events and were willing to give testimony, despite [the plaintiff's] offer to set up interviews with these employees." The plaintiff also claims that "Danbury . . . deceptively misled [the plaintiff] by allowing him to begin significant and extremely expensive repairs with the reasonable expectation that Danbury . . . would reimburse him for the same after a thorough and fair investigation, then denying the claim months later without conducting a fair and thorough investigation and after [the plaintiff] had spent substantial amounts of his own money repairing the house." Finally, the plaintiff alleges that, "by deceptively and unfairly failing to properly settle the claim and by its deceptive conduct with respect to its intention to pay the claim as described herein, Danbury . . . intended to inflict emotional distress or knew or should have known that emotion distress was the likely result of its conduct."
As a matter of law, these allegations are insufficient to support a claim for intentional infliction of emotion distress. Specifically, the plaintiff's allegations attack the manner in which Danbury conducted its investigation and resolved his claim. As noted in Carrol v. Allstate Ins. Co., supra, 262 Conn. 443-44, allegations of this sort fail to rise to the level of extreme and outrageous conduct.
The plaintiff argues, however, that his allegations can be distinguished from the circumstances set forth in Carrol because, in this case, "Danbury . . . deceived [the plaintiff] into believing he could begin repairs on the [the] plaintiff's home, [because] Danbury . . . relied upon false representations of Frank Rocha, who himself was at fault for the loss claimed, in order to deny the claim more than five months from the date of the loss, and [because] Danbury . . . had the power to affect [the] plaintiff's interest." Yet, an examination of the facts surrounding the court's decision in Carrol makes it clear that the conduct of the defendant insurer in that case was no less severe than Danbury's alleged conduct in this case.
In Carrol, the court noted that the "plaintiff presented evidence that [the defendant insurer's] determination that the fire was arson was impulsive and might have been influenced in part by the fact that the plaintiff was African-American." Id., 441. Indeed, the court held that "there was evidence from which the jury could have inferred that the defendant's investigation was not only shoddy, but that it possibly was influenced by racial stereotypes." Id., 447. Additionally, the court found that the defendant insurer "also asked questions during interviews with the plaintiff that the plaintiff found offensive, for example, insinuating that the plaintiff had obtained his motor vehicles through questionable activity. The plaintiff testified that [the defendant] consistently made him feel like a criminal. The jury also could have inferred from [the defendant's] testimony that [the defendant's investigator] had a tendency to find arson as the cause of suspicious fires and to ignore facts counter to the conclusion of arson, so that the defendant would continue to employ [the investigator] frequently." Id., 441. Further, "the defendant made numerous requests for information from the plaintiff, which, at times, bordered on harassment." Id. Finally, the court determined that "the jury could have found that the defendant's investigation was improperly motivated . . ." Id., 445.
The aforementioned factual findings by the Carrol court are similar to the plaintiff's allegations in the present case. Specifically, in Carrol, the defendant insurer conducted an unreasonable and dishonest investigation. Further, and perhaps more unacceptable than Danbury's alleged actions here, the defendant in Carrol engaged in behavior that was motivated by racial bias and that the court characterized as "harassment." Nevertheless, the court determined that such conduct is simply insufficient to qualify as extreme and outrageous.
CONCLUSION
Based on the foregoing, the defendant's Motion to Strike the second, third and fourth counts of the complaint is granted.