Summary
In Lassow v. Jefferson Pilot Financial Insurance Co., 35 Conn. L. Rptr. 496 (2003), the court granted the third-party defendant's motion for summary judgment on an indemnification claim premised on CUTPA...
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No. CV 01 0807131 S
September 8, 2003
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (##130 and 131)
I. Background
In complaint, dated April 9, 2001, count one, the plaintiff, Frances Lassow, on her own behalf and as executrix of the estate of Jay J. Lassow, alleges that her deceased husband purchased a life insurance policy (the "policy") from Chubb Life Insurance Company of America (Chubb). The defendant Jefferson Pilot Financial Insurance Company (Jefferson) is the successor in interest to Chubb. The plaintiff claims that the policy was in effect when Lassow died on February 20, 1998. The plaintiff contends that Jefferson breached its contractual obligations by failing to pay the death benefits which were due under the policy.
For ease of reference Jay J. Lsssow will be referred to as "Lassow" or as the deceased. J, Lassow's executrix, Frances Lassow will be referred to as the "plaintiff."
For ease of reference, Chubb and Jefferson will both be referred to as "Jefferson."
In count two of the complaint, the plaintiff asserts that the denial of the plaintiff's claim was made in bad faith and in breach of Jefferson's implied covenant of good faith and fair dealing. In count three, the plaintiff claims that Jefferson's conduct violates General Statutes §§ 38a-816 (CUIPA) and 42-110b (CUTPA).
Jefferson brought a third-party complaint against the third-party defendant MedPro, Inc. (MedPro), dated May 29, 2002, seeking indemnity. Jefferson and MedPro have filed motions for summary judgment (##130 and 131). On July 31, 2003, the motions appeared before the court for oral argument.
II. Standard of Review
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted and emphasis in original.) Mytech v. May Department Stores Co., 260 Conn. 152, 164 n. 8, 793 A.2d 1068 (2002).
Our Supreme Court has elaborated on this subject by stating, "[w]e emphasize the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 550.
"A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determined whether any such issues exist." Nolan v. Borkwski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"The test is whether a party should be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed . . . [T]he standards of summary judgment are strictly and forcefully applied." (Emphasis omitted; internal quotation marks omitted; and citations omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 751-52, 660 A.2d 810 (1995).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 372 n. 7, 746 A.2d 753 (2000).
III. Discussion
A. Jefferson's Motion for Summary Judgment
1. Count One
"Under Connecticut law, an insurance policy may be voided by the insurer if the applicant made [m]aterial representations . . ., relied on by the company, which were untrue and known by the assured to be untrue when made . . . To prevail on its defense, [the insurer] must therefore prove three elements: (1) a misrepresentation (or untrue statement) by the plaintiff which was (2) knowingly made and (3) material to defendant's decision whether to insure." (Internal quotation marks omitted and citation omitted.) Pinette v. Assurance Co. of America, 52 F.3d 407, 409 (2d Cir. 1995).
As to count one, Jefferson argues that Lassow made material misrepresentations about his medical history on his insurance application. In support of its contentions, Jefferson places heavy reliance on our Supreme Court's decision in State Bank Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 145 A. 565 (1929) ( "State Bank Trust"). See Jefferson's memorandum of law, pp. 19-22. In particular, it states that the facts in that case "are very similar to those before the Court in this matter." See Jefferson's memorandum of law, p. 19.
Jefferson's three special defenses also are premised on Lassow's alleged material misrepresentations.
In State Bank Trust, 109 Conn. 70, the court stated, "The claimed misrepresentations are contained in answers to questions appearing in the two applications and relate to the health of the applicant. That they were material to the risk as matter of law is beyond question. Where the materiality of a representation depends upon inferences drawn from facts and circumstances proved, the question is one for the jury. Where the representation is contained in an answer to a question contained in the application which is made a part of the policy the inquiry and answer are tantamount to an agreement that the matter inquired about is material. The information given forms the basis of the contract and defines the risk assumed."
In her memorandum of law, p. 28, The plaintiff relies on language in Pinette v. Assurance Co. of America, supra, 52 F.3d 411, that "Connecticut caselaw strongly suggests that an answer to a question on an insurance application is presumptively material." In Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 692, 590 A.2d 957 (1991), our Supreme Court reiterated that the principles it enunciated in State Bank Trust continued to be viable, without addressing the concept of a rebuttable presumption of materiality.
The facts in State Bank Trust differ from those before the court here in that there, apparently, the applicant's statements on the application about his medical history were made by him without the involvement of a medical examiner. In State Bank Trust, there was no medical examination. Here, Lassow's statements on Jefferson's Medical Application, which are the bases of Jefferson's claims of misrepresentations, were allegedly the result of instructions received from Geraldine McCauley, a nurse assigned by MedPro to conduct Lassow's medical examination, at the time of her medical examination of Lassow, concerning how to respond to Jefferson's application form. While no alleged agent of the insurer was alleged to have provided instructions to the deceased in State Bank Trust, the plaintiff contends that McCauley was acting as Jefferson's agent and that Jefferson is bound by McCauley's actions, which resulted in the responses which Jefferson characterizes as misrepresentations.
"Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Citations omitted.) Gateway v. DiNoia, 232 Conn. 223, 239-40, 654 A.2d 342 (1995).
As the party asserting agency, the plaintiff has the burden of proof on the issue. See Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659-60, 186 A. 635 (1936); Federal Deposit Ins. Corp. v. Mutual Communications Assoc., Inc., 66 Conn. App. 397, 404, 784 A.2d 970 (2001), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003).
Our Supreme Court recently has reiterated that "[a]lthough agency is normally a question of fact, its existence or nonexistence may be determined as a matter of law." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 639 n. 12, 804 A.2d 180 (2002), citing Hallas v. Boehmke Dobosz, Inc., 239 Conn. 658, 674, 686 A.2d 491 (1997).
"The testimony of the principal, however, is not necessary to prove agency. The existence and extent of an agency relationship may be established by circumstantial evidence based upon an examination of the situation of the parties, their acts and other relevant information . . . The agent also may provide evidence regarding the facts and the surrounding circumstances of a relationship that demonstrates the existence of an agency relationship." (Citations omitted.) Gateway v. DiNoia, supra, 232 Conn. 240-41.
"[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent's employment . . . An agent's authority may be actual or apparent." (Citations omitted.) Maharishi School of V.S. v. Conn. Constitution A.L.P., 260 Conn. 598, 606, 799 A.2d 1027 (2002).
Here, the plaintiff does not contend that McCauley had actual authority to instruct Lassow about what responsive medical information was sought and about the non-inclusion on the Medical Application of information which the plaintiff contends she and Lassow provided to McCauley at the time of the medical examination. Rather, the plaintiff claims that, as Jefferson's agent, McCauley had apparent authority to do so. In her memorandum, she states, "[u]nder these circumstances, the defendant, acting though its agents, clothed Ms. McCauley with apparent authority to perform a medical examination on behalf of the defendant as well as take a medical history on behalf of the defendant. Under the circumstances, it would make no more sense for the Lassows to question the manner in which McCauley recorded their medical history than it would for them to question the manner in which she recorded the results of their physical examinations." See plaintiff's memorandum, p. 30.
"Apparent authority is that semblance of authority which a principal, though his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal." (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734, 629 A.2d 333 (1993). "[U]nder the ordinary rules of contract, an agent who has apparent authority, but not express authority, can bind his principal, especially as to parties who act in good faith." Hall-Brooke Foundation, Inc. v. City of Norwalk, 58 Conn. App. 340, 344, 752 A.2d 523 (2000).
"[T]he acts of the principal must be such that (1) The principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority." (Internal quotation marks omitted.) Hallas v. Boehnike and Dobosz, Inc., supra, 239 Conn. 674.
In ascertaining the scope of apparent authority, it is appropriate to look to the Restatement (Second), Agency (1958) ("Restatement"). See Citibank v. Gifesman, 63 Conn. App. 188, 191 n. 3, 773 A.2d 993 (2001). Comment (c) to § 49 of the Restatement, p. 147, provides, "Acts are interpreted in the light of ordinary human experience. If a principal puts an agent into, or knowingly permits him to occupy, a position in which according to the ordinary habits of people in the locality, trade, or profession, it is usual for such an agent to have a particular kind of authority, anyone dealing with him is justified in inferring that he has such authority, in the absence of reason to know otherwise. The content of such apparent authority is a matter to be determined from the facts."
Here, there is some evidence that McCauley, as MedPro's designee to conduct the medical examination for Jefferson, was cloaked with some apparent authority. It is undisputed that McCauley was a nurse. See deposition of Geraldine McCauley, p. 5. Accordingly, she acted in her capacity as a health care professional, which ordinarily involves the exercise of some discretion. See Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 811, 817 A.2d 619 (2003); Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 156, 801 A.2d 775 (2002). McCauley conducted the examination because MedPro was on Jefferson's approved list of examiners. See affidavit of Charles Induddi, ¶¶ 5-7; Deposition of Hannah Cairelli, p. 39. In his third-party complaint against MedPro, dated May 29, 2002, at paragraph 7, Jefferson alleges that "[a]t all times relevant to this action, [Jefferson] and MedPro had a continuing agreement in effect under which MedPro would conduct paramedical exams of [Jefferson's] potential insureds." Further, Jefferson alleges, at paragraph 9 of its third-party complaint, that it requested MedPro to conduct an examination of Lassow in accordance with its agreement with MedPro. McCauley utilized Jefferson's form to conduct the examination, in order to obtain information which Jefferson apparently thought was medically relevant. The results of her examination were communicated to Jefferson for its use in making its underwriting assessment. See Jefferson's third-party complaint, ¶ 15. Jefferson paid for this service. See affidavit of Charles Induddi, ¶ 7.
The facts here differ from cases cited by Jefferson. For example, in Hallas v. Boehnike and Dobosz, Inc., supra, 239 Conn. 658, our Supreme Court determined, as a matter of law, in affirming the trial court's directed verdict, that there was nothing in the record to show that a defendant was acting as an apparent agent of the insurer. See id., 673-74. There, the purported agent, Dobosz, issued a binder without authority from the insurer. In contrast to the facts here, the Supreme Court noted that there was no evidence of a relationship between Dobosz and the insurer, including the fact that he had nothing which bore the insurer's name. See id., 675. As noted, here, in contrast, as a result of Jefferson's contract with MedPro, McCauley conducted the medical examination using Jefferson's form.
The facts here differ also from those in Ranger Ins. Co. v. Kovach, 63 F. Sup.2d 174 (D. Conn. 1999), where the court granted summary judgment in favor of the insurer, after finding that an agent to whom the insured allegedly had provided truthful information, which the agent termed of "minor significance," and did not include such information on the application for insurance, see id., 176-77, was the insured's agent, and not the insurer's agent. There, Kovach, the insured, sought insurance for his aircraft from Benchmark, an agent. Benchmark recommended Ranger, the insurer. See id., 176. Kovach never spoke to a Ranger employee. Instead, his discussions were with Benchmark only. Id. In completing Ranger's insurance application form, Kovach reviewed the questions with Benchmark. In response to a question about whether his pilot's license had ever been suspended, Kovach relied on Benchmark's advice when, although he had had a previous suspension, he responded "no" on the form. See id., 176-77.
The court found that Benchmark's supplying of Ranger's form to Kovach did not make Benchmark Ranger's agent. See id., 184. There was no evidence of "an act of Ranger that would support the belief that Benchmark had any authority to act on Ranger's behalf." Id., 185.
Here, although McCauley also used Jefferson's form, there is evidence of an act of Jefferson cloaking McCauley with some authority. In contrast to the facts in Kovach, here Lassow did not select McCauley and rely on her advice as to Jefferson's requirements. Rather, as stated above, McCauley, as a medical professional, conducted the examination because MedPro was on Jefferson's approved list, MedPro had a contract with Jefferson, and Jefferson required that a medical examination be conducted.
Jefferson also argues that, even if McCauley is deemed to be its agent, her actions and statements during the examination are irrelevant since the language of the policy "clearly states that no agent can change or modify the policy or waive any of [Jefferson's] rights or requirements." See Jefferson's memorandum, pp. 26-27. Under "General Provisions," at page 10, the policy provides, "[o]nly an elected officer of the Company can, on behalf of the Company, change or modify this policy or waive any of the Company's rights or requirements. Any such changes must be made in writing." Page 3 of the Application for Insurance, at paragraph 4, states, "[t]he agent has no authority to make, modify, alter or discharge any policy."
In support of this argument, Jefferson relies on Bahr v. The Prudential Ins. Co. of America, 5 Conn. Cir. 620, 260 A.2d 422, cert. denied, 158 Conn. 634, 252 A.2d 313 (1969). The language in the application for insurance there differed materially from the above-quoted language in Jefferson's policy documents. In pertinent part, the Prudential application provided, "that no agent has the authority to waive the answer to any question . . . or to waive any of the Company's rights or requirements with respect to the application, or to bind the Company by making any representations or by giving or receiving any information." Id., 623. Thus, the language there explicitly referred to the questions on the application, to the making of representations, and to the giving or receiving of information. The portions of its policy documents cited by Jefferson do not so provide. See id., 627 (contrasting the limiting language in the Prudential application with that present in other cases).
Under the circumstances here, when viewed in the light most favorable to the plaintiff, as the court is obligated to do, the evidence reflects that material issues of fact are in dispute as to whether the challenged representations made by Lassow on the Medical Application were knowingly made. See Lazar v. Metropolitan Life Ins. Co., 290 F. Sup. 179, 181 (D. Conn. 1968). In view of this determination, the court need not examine each such representation to ascertain either its truthfulness or its materiality.
In her memorandum, at pp. 31-34, the plaintiff argued that she was entitled to the entry of summary judgment in her favor on count one of her complaint, based on estoppel, despite the absence of a cross motion for summary judgment. This argument was withdrawn before the court at oral argument. The court need not address the issue of estoppel.
2. Count Two
Jefferson seeks summary judgment as to count two of the complaint on two grounds. First, it argues that since there was no breach of the policy, there is no evidence to support a bad faith claim. Second, it asserts that, even if a breach of contract is proved, the plaintiff cannot show that the breach occurred other than as a result of a good faith interpretation of contract language.
"The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." Cadle Co. v. Ginsberg, 70 Conn. App. 748, 768, 802 A.2d 137 (2002). "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." (Internal quotation marks omitted and citation omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).
In paragraphs 24 and 25 of the complaint's second count, the plaintiff alleges that Jefferson refused to provide her with information concerning the medical examiner for the purpose of concealing it from her and that Jefferson's application procedures are designed, through the use of misrepresentations, to enable it to obtain life insurance policy contracts and premiums, while still enabling it to deny claims. Jefferson's argument as to count two does not address these allegations.
"[A] party moving for summary judgment cannot place on the other party the burden of submitting affidavits to establish the truth of other pleaded material facts which the moving party has not attacked." Plouffe v. New York. N.H. H.R. Co., 160 Conn. 482, 491, 280 A.2d 359 (1971). In addition, "[s]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
As noted, in connection with count one, material factual issues are at issue. These same facts also are germane to count two. Whether or not the plaintiff can prove her allegations remains to be seen. In light of the foregoing, as to count two, Jefferson has not sustained its burden on the motion to show that it is quite clear what the truth is.
3. Count Three
In count three, the plaintiff alleges that Jefferson's conduct constitutes the use of unfair methods of competition and unfair and deceptive practices in the business of insurance in violation of General Statute § 38a-816 (6), subparts a, d, f, and g, and (8) (CUIPA). The plaintiff also claims that Jefferson's acts, omissions and conduct amounted to violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statute § 42-110b. Jefferson argues that it is entitled to summary judgment as to this count as the plaintiff has not set forth any specific allegations of Jefferson's practices, beyond the single instance of denying the claim under the Lassow policy, making the allegations as to Section 38a-816 (6) legally insufficient, since the "general business practice" requirement of that subpart is not satisfied. In addition, as to § 38a-816 (8), which does not require proof of a "general business practice," Jefferson repeats its previously discussed argument that McCauley was not its agent, and, as a result, it asserts that her statements cannot be the basis for holding it liable under CUIPA.
In pertinent part, § 38a-816 (6) provides: "The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: . . . (6) 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; . . . (d) refusing to pay claims without conducting a reasonable investigation based upon all available information; . . . (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 . . ."
Section 38a-816 (8) provides: "The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: . . . (8) Misrepresentation in insurance applications. Making false or fraudulent statements or representations on or relative to an application for an insurance policy for the purpose of obtaining a fee, commission, money or other benefit from any insurer, producer or individual."
"Connecticut courts have permitted use of the motion for summary judgment to contest the legal sufficiency of the complaint, even though legal sufficiency is more appropriately tested by a motion to strike." Jewett v. General Dynamics Corp., Superior Court, judicial district of New London at New London, Docket No. 530943 (May 1, 1997, Booth, J.). See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971). More recently, Judge Sheldon stated, "[T]he appropriateness of granting summary judgment on the ground of failure to plead a valid claim or cause of action finds support both in our law governing the direction of verdicts and in the logic of our summary judgment rules, as traditionally described and formulated." Shareamerica, Inc. v. Ernst Young, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 93-0150132 S (July 2, 1999). "Logically, if our standard for granting summary judgment is identical to that for directing a civil verdict, and a civil verdict can lawfully be directed because the pleader has failed to state a valid cause of action, summary judgment can be lawfully granted where the challenged count or pleading is legally deficient." Id.
As noted, the plaintiff has combined in the third count her allegations of violations of § 38a-816 (6) and § 38a-816 (8). While the plaintiff cites no evidence as to how Jefferson dealt with policies other than Lassow's, there are, as discussed above, material factual issues in dispute concerning the question of whether McCauley acted as Jefferson's agent. These bear also on the plaintiff's allegation of a violation of § 38a-816 (8), which is part of count three. Accordingly, Jefferson has not sustained its burden to show that it is entitled to summary judgment as to that count. Jefferson's motion for summary judgment is denied as to each count.
B. Medpro's Motion for Summary Judgment
In its one-count third-party complaint, Jefferson asserts that if the plaintiff's allegations about the manner in which Lassow's examination was completed are true, MedPro, through McCauley, was negligent in conducting the examination. See third-party complaint, ¶ 17. Jefferson contends that if it is found to be liable to the plaintiff, MedPro is required to indemnify it. See third-party complaint, ¶ 18.
In its motion for summary judgment, MedPro claims that Jefferson is not entitled to indemnity as to the second and third counts of the plaintiff's complaint, since these counts are premised on intentional acts by Jefferson. There is no claim that Jefferson is entitled to indemnity as a result of a contractual agreement with MedPro.
In its motion papers, MedPro also claimed that it is entitled to summary judgment as to the first count of the complaint. At oral argument, MedPro's counsel confirmed that, in the event that Jefferson's motion for summary judgment is denied, it does not seek judgment as to the first count; rather it seeks partial summary judgment as to Jefferson's claims that it is entitled to be indemnified by MedPro concerning the allegations made by the plaintiff in the second and third counts of the complaint.
A third-party complaint is premised on the plaintiff prevailing against the defendant third-party plaintiff. See Maccarone v. Hawley, 7 Conn. App. 19, 22, 507 A.2d 506 (1986).
Jefferson's indemnity claim is premised on Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965), which set forth the elements which must be proved in order to sustain a common law indemnity claim. There, our Supreme Court stated, "[i]n order to recover as indemnitees, these plaintiffs had to prove that Merberg was the party primarily liable under our rule as laid down in the Preferred Accident case. This in turn required them to prove that at the time of the accident (1) Merberg was negligent; (2) Merberg's negligence, rather than the negligence with which these plaintiffs were found chargeable, was the direct, immediate cause of the accident and the resulting injuries and death; (3) Merberg was in control of the situation to the exclusion of these plaintiffs; . . . (4) the plaintiffs did not know of Merberg's negligence, had no reason to anticipate it, and could reasonably rely on Merberg not to be negligent." (Citation omitted.) Id.
This referenced case is discussed below.
The analysis of claims for indemnification in Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. 331912 (Oct. 20, 1995, Martin, J.), is instructive. There, the court stated that, to ascertain whether a third-party defendant "cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, it is necessary to assume that the jury found that the plaintiff established the elements of the cause or causes of action in the first-party complaint against the defendant. See Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982) (concluding that the finding of the jury in the first party action that the defendant third-party plaintiff was negligent was binding upon the defendant third-party plaintiff in the third-party action for indemnification); Kaplan v. Merberg Wrecking Corp., [ supra, 152 Conn. 405, 413-15] (in an action for indemnification, the court is correct in looking to the opinion of the first action to ascertain the basis on which the plaintiff/alleged-indemnitee was found liable, because `an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered . . .'); Preferred Accident Ins. v. Musante, Berman Steinberg, 133 Conn. 536, 541, 52 A.2d 862 (1947) (plaintiff was found liable for injuries to a third person; in a subsequent action for indemnification against a codefendant in the first action, the court took judicial notice of the basis upon which the plaintiff was held liable in the first action because such a fact is a matter of law.); Maccarone v. Hawley, supra (although defendant denied the plaintiff's allegation that the plaintiff was employed by and working for the third-party defendant at the time of the injury, the court must view this as a case which a third party, namely the defendant, seeks indemnity from an employer, namely the [third-party defendant], for injuries suffered by the employer's employee[, namely the plaintiff,] in the course of his employment). It is settled law that if a judgment in the first action against the defendant third-party plaintiff rests on a fact fatal to recovery in the action over against the third-party defendant, the latter action cannot be successfully maintained. Kaplan v. Merberg Wrecking Corp., supra, 413." (Internal quotation marks omitted and footnote omitted.) Hartt v. Schwartz, supra.
Our Supreme Court has stated that "the applicability of the rule is negatived, wherever it appears that the party seeking indemnity was himself guilty of affirmative misconduct which was a proximate cause of the injury in question." Preferred Accident Ins. v. Musante, Berman Steinberg, supra, 133 Conn. 542.
Following this precedent, other courts have stated that there can be no indemnification in such contexts. See Hartt v. Schwartz, supra (no indemnity for all or part of fraudulent nondisclosure claim); Fortin v. Bok, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 88 24 82 37 (May 31, 1991, Ballen, J.) ( Kaplan v. Merberg test does not apply to intentional torts); Siegel v. Kaesser Construction Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 26 88 03 (March 6, 1991, Ford, J.) ( 3 Conn.L.Rptr. 310) (principal of indemnity irrelevant to CUTPA claim).
Here, as discussed above, in order to prevail on either the second or the third count of the plaintiff's complaint, the plaintiff must prove that Jefferson engaged in affirmative misconduct. In her second count, the plaintiff asserts that Jefferson acted in bad faith and in breach of the covenant of good faith and fair dealing. There, the plaintiff alleges that the medical examiner was acting as Jefferson's agent and that Lassow relied on her representations in submitting his application to Jefferson. See complaint, second count, ¶¶ 14-18. The plaintiff alleges that Jefferson refused to provide her with information about the medical examiner, "for the purpose of concealing from [her] precisely what information the medical examiner could offer regarding the policy application." See Complaint, second count, ¶ 24. Further, the plaintiff alleges that Jefferson's procedures are designed, through the use of misrepresentations, to enable it to obtain life insurance policy contracts and premiums, while still enabling it to deny claims. See Complaint, second count, ¶ 25. As discussed, to prevail on this count, the plaintiff must prove that Jefferson acted in bad faith, which connotes "more than mere negligence; it involves a dishonest purpose." CT Page 10787 Habetz v. Condon, supra, 224 Conn. 237.
Also as discussed above, the third count incorporates by reference the same allegations and asserts that Jefferson has violated CUIPA and CUTPA. The plaintiff cannot prevail against Jefferson on either the second or the third count of the complaint unless she proves that Jefferson engaged in affirmative misconduct. Under these circumstances, as a matter of law, Jefferson is not entitled to indemnity from MedPro in connection with either the second or the third count of the plaintiff's complaint.
MedPro's motion for summary judgment is granted in part, only as to Jefferson's claims for indemnity based on the second and third counts of the plaintiff's complaint against Jefferson.
CONCLUSION
For the foregoing reasons, Jefferson's motion for summary judgment is denied and MedPro's motion for summary judgment as to Jefferson's third-party complaint is granted, in part, pertaining to Jefferson's indemnity claims against MedPro based on the second and third counts of the plaintiff's complaint only. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT