Opinion
AANCV156019474S
04-26-2016
Amy Lopez v. The Travelers Companies, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE
Barry K. Stevens, J.
STATEMENT OF THE CASE
The plaintiff, Amy Lopez, instituted this action against the defendants, The Travelers Companies, Inc. (the Travelers), and The Charter Oak Fire Insurance Company (Charter Oak), by a complaint dated September 24, 2015, and through service effectuated on October 1, 2015. The complaint alleges the following. In October 2008, the plaintiff was involved in an automobile accident caused by the negligence of an underinsured motorist. In or about March 2009, the plaintiff settled her claims against the negligent driver by receiving the $20,000 limit of this driver's insurance policy.
When the accident occurred, the plaintiff was employed by the Travelers. The complaint states that " on June 2, 2011, the plaintiff received correspondence, after repeated requests for the under-insured policy, from an employee of the Travelers Companies, Inc., and/or Charter Oak Fire Insurance Company, Jennifer Jorritsma, indicating that plaintiff's under-insured motor vehicle coverage for the . . . accident was issued through Carter Oak Fire Insurance Company . . . Complaint, ¶ 19. The plaintiff filed an underinsured motorist action against Charter Oak, but through discovery the plaintiff determined that Charter Oak was not the correct defendant. " For the first time, on November 20, 2011, the plaintiff learned that the under-insured policy in effect for her accident was issued through New Hampshire Insurance Company . . ." (New Hampshire). Complaint, ¶ 23.
The plaintiff moved to add New Hampshire as a defendant in the underinsured motorist action. This motion was granted. New Hampshire then moved for summary judgment on the ground that it was not sued within the limitation period provided under its underinsured motorist insurance policy. This motion for summary judgment was granted. Thereafter, the plaintiff instituted another action against New Hampshire claiming that the time period to bring an action against New Hampshire was extended under General Statutes § 52-593. Section 52-593 extends the statute of limitations for the filing of a new action after a plaintiff sues the wrong party in an earlier case. In this second action, New Hampshire again moved for summary judgment. The court granted this summary judgment motion. According to the complaint, this ruling granting summary judgment was affirmed on appeal in February 2015.
Although not relevant to the motion to strike, for clarification and accuracy, the court notes that the judicial record reflects that the appeal of Judge Brazzel-Massaro's decision was resolved through dismissal, rather than affirmance.
The complaint claims that the defendants made a representation to the plaintiff about the underinsured motorist policy that the defendants knew or should have known was false, and that the plaintiff relied on this misrepresentation to her financial detriment. The complaint claims further that this misrepresentation was made negligently or fraudulently.
The complaint additionally alleges that the defendants' actions " are offensive to public policy, damaging to Connecticut residents, including the plaintiff, and were done deliberately for the purpose of maximizing the profits of the [defendants] by unfairly minimizing, withholding or otherwise reducing the amounts rightly due to claimants, including the plaintiff." Complaint, ¶ 23. On the basis of these additional allegations, the plaintiff claims that the defendants violated the Connecticut Unfair Trade Practices Act (General Statutes § 42-110a) (CUTPA) and the Connecticut Unfair Insurance Practices Act (General Statutes § 38a-815) (CUIPA).
Pending before the court is the defendants' motion to strike the complaint. The defendants contend that the plaintiff's complaint was filed beyond the statutory time limits governing the plaintiff's claims. The defendants also argue that the complaint's allegations are insufficient to state claims under CUTPA. On March 21, 2016, the court issued a summary ruling granting the motion to strike on the ground that suit was not timely instituted. On March 31, 2016, the defendant filed a motion for articulation. The motion for articulation is granted and this memorandum articulates the court's ruling.
DISCUSSION
I
" 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.) Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . 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." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Manka v. Allstate Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV11-6012325-S, (May 30, 2013, Wiese, J.); accord Thompson v. Main, 102 Conn. 640, 641, 129 A. 786 (1925) (motion must be denied if any part of complaint is not barred by applicable statute).
Ordinarily, a statute of limitations defense is raised by the defendant asserting a special defense. See Practice Book § 10-50. However, a defendant may move to strike a complaint for a plaintiff's failure to institute suit within the statute of limitations when the grounds for this defense are apparent from the allegations of the complaint. See Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996) (statute of limitations may be raised by motion to strike when there is no dispute that complaint sets forth all facts pertinent to question). Additionally, the three-year limitation for bringing a CUTPA action may be asserted by motion because this requisite is a jurisdictional requirement of the statutory cause of action. See Avon Meadow Condominium Assn, Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 699-700, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998) (CUTPA limitation period is jurisdictional, may be raised at any time and cannot be waived). When the statute of limitations is raised through a motion to strike, matters in avoidance of the defense, such as tolling, may be raised in the objection to the motion or by pleading over. See Practice Book § § 10-44, 10-57.
II
The plaintiff claims that she suffered a loss of compensation for personal injuries as a result of the defendants' conduct, and therefore, the statute of limitations for the plaintiff's negligent misrepresentation claims appears to be governed by General Statutes § 52-584. See Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 295, 830 A.2d 346 (2003). Section 52-584 provides in relevant part: " no action . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of."
The plaintiff's claims for fraudulent misrepresentation are governed by General Statutes § 52-577. Section 52-577 provides: " no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The plaintiff's CUTPA claims are also governed by a three-year limitation period. General Statutes § 42-110g(f) provides: " [a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
It is noted that § 52-577 is a statute of repose. LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006) (" Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." [Internal quotation marks omitted.]). Additionally, § 42-110g(f) is a substantive, jurisdictional limitation governing the time period within which a CUTPA action may be instituted. Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 699-700, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).
The defendants' wrongful act was the misidentification of the insurance company providing underinsured motorist coverage for the plaintiff's accident. According to the complaint, this false representation was made in June 2011 and was discovered in November 2011. Under General Statutes § 52-584, the plaintiff's negligent misrepresentation claims should have been brought within two years from the discovery of the misrepresentation or by November 2013. Under § 52-577 and § 42-110g(f), the plaintiff's fraudulent misrepresentation and CUTPA claims were required to be filed within three years of June 2011 or by June 2014. These claims were required to be filed within three years of June 2011 because June 2011 was the month within which the act complained of occurred or within which the violation of CUTPA occurred. There is no dispute that the plaintiff's complaint was served in October 2015, beyond these time limitation periods. " Legal actions in Connecticut are commenced by service of process." (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn.App. 810, 820, 943 A.2d 544 (2008).
In response, the plaintiff argues that the time limitation periods did not start to run in 2011, but began to run on February 13, 2015, when the appeal of her second action against New Hampshire was resolved. The plaintiff opines that February 2015 was " when [her] potential remedies against the original UIM carrier, New Hampshire Insurance, were fully extinguished without [her] obtaining recovery for her damages and losses." According to the plaintiff, prior to February 2015, her claims against the defendants in the present action were not ripe or justiciable. The court rejects the plaintiff's argument.
The plaintiff is correct that " before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1, 6, 127 A.3d 994 (2015). The plaintiff is also correct that in order to be justiciable, a case must be ripe for adjudication. " The rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ." Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). The plaintiff contends that she " did not suffer any ascertainable injury until a final order entered by the Appellate Court that New Hampshire Insurance Company was not liable." The plaintiff reasons that if her claims against New Hampshire had been successful, " any potential claims against the current defendants would have been moot, as the misrepresentations would not have caused the plaintiff any harm. Therefore, the current claims against the defendants were contingent on any form of final judgment in the original actions against [New Hampshire]." P.'s Obj. To Defs.' Mot. Strike, p. 10. The plaintiff's position is wrong both on the facts and the law.
First, as a factual matter, the plaintiff is incorrect that she suffered no " ascertainable injury" until the actions against New Hampshire were resolved. She is also wrong in her contention that she would have suffered no financial loss if she had recovered underinsured motorist insurance from New Hampshire. Based on the allegations of the complaint, the plaintiff sued Charter Oak, rather than New Hampshire, as a result of the defendants' misrepresentation. The defendants' wrongdoing, therefore, caused her to suffer losses in the form of the costs and expenses of this litigation against the wrong party. This financial loss was incurred before the lawsuits against New Hampshire were instituted and would have remained even if there had been a recovery against New Hampshire. A recovery of uninsured motorist insurance against New Hampshire would have reduced the plaintiff's economic loss but would not have satisfied the damages associated with the lawsuit against the wrong insurance company.
Moreover, the general rule is that the ripeness of a controversy is not dependent on a definitive judicial determination about the wrongfulness of the conduct or about the amount of the damages incurred. See Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 713 A.2d 1267 (1988); Weiner v. Clinton, 100 Conn.App. 753, 760, 919 A.2d 1038 (2007). Indeed, the plaintiff's ripeness argument is controlled by the Supreme Court's decision in Mayer v. Biafore, Florek & O'Neill, and the Appellate Court's decision in Weiner v. Clinton . In Mayer, the plaintiff claimed that his prior attorneys committed malpractice for not asserting a timely claim against the plaintiff's uninsured motorist insurance carrier. The Appellate Court reasoned that the case was not ripe because the plaintiff had not initiated suit against his uninsured automobile insurance carrier, and without the plaintiff taking this action, causation and damages could not be established against the defendant attorneys. In rejecting this reasoning and reversing the judgment, the Supreme Court explained: " [t]he fact that the [defendant attorneys] contest the issues of causation and damages does not require the plaintiff first to file an action against [his insurance carrier] . . . [B]ecause the trier of fact hearing the plaintiff's malpractice case must determine, on the basis of proper instructions as to the law, whether an uninsured motorist action is time barred, there is no need for a prior determination that the statute of limitations has run as a condition precedent to the plaintiff pursuing this case." Id., 92.
In Weiner, the trial court dismissed a legal malpractice case as not being ripe because the underlying action where the malpractice occurred was still on appeal. The trial court accepted the defendants' argument that a " legal malpractice claim is unripe if the amount of the damages is contingent on the outcome of some other litigation." Weiner v. Clinton, supra, 100 Conn.App. 756. The Appellate Court disagreed indicating that the plaintiff's claims were ripe for adjudication even though the plaintiffs were still appealing from the judgment in the underlying litigation." Id., 759. The court explained that " an inability to establish the exact amount of damages is indicative of a defect in a plaintiff's capacity to prove his or her case, not a deficiency in the court's subject matter jurisdiction." Id., 760.
The holdings of Mayer and Weiner establish that the plaintiff's ripeness argument fails because her claims against the defendants were not dependent on the disposition of her lawsuits against New Hampshire. The plaintiff's claims are based on the defendants' purported misrepresentation and not on some contingent, speculative event. Moreover, the plaintiff's damages based on her failure to acquire uninsured motorist compensation were clearly subject to proof. As held in Weiner, any difficulty in establishing the amount of these damages would have been " indicative of a defect in [the] plaintiff's capacity to prove [her] case, not of a deficiency in the court's subject matter jurisdiction." Id., 760.
In support of her ripeness argument, the plaintiff relies on the Appellate Court's decision in Fontanella v. Marcucci, 89 Conn.App. 690, 877 A.2d 828, cert. granted, 275 Conn. 907, 882 A.2d 670 (2005) (appeal withdrawn March 8, 2006). The plaintiff's reliance on Fontanella is misplaced because that case is distinguishable. In Fontanella, the plaintiff was injured when the automobile he was operating left the road and struck a tree. The plaintiff filed a product liability action against the automobile's manufacturer claiming that either the particular seat belt in his automobile was defective or the design of all such seatbelts was defective. In a separate lawsuit, the plaintiff filed a legal malpractice action against the attorney who had initially represented him in the product liability case alleging that the attorney was negligent in advising him to destroy the vehicle, rather than preserving it for inspection and evidence in the product liability case. The trial court granted the defendants' motion for summary judgment on statute of limitations grounds and the Appellate Court reversed. The Appellate Court held that the statutes of limitations governing the plaintiff's legal malpractice claims were tolled pending disposition of the product liability action. Contrary to the issue in the present case, this holding in Fontanella was not premised on a question of law about when the statutes of limitations began to run, but was premised on a question of fact about whether there existed any malpractice. To explain further, in the product liability action, if the defective seat belt was caused by the negligent design of all such seat belts produced by the manufacturer, then the attorney's advice to destroy the vehicle would have been of no consequence. The court determined that this issue required adjudication in order to determine the existence of the malpractice.
In short, the Appellate Court's decision in Fontanella is very fact specific and its holding must be accordingly limited. See Rosenfield v. I. David Marder & Assocs., LLC, 110 Conn.App. 679, 691-92 n.10, 956 A.2d 581 (2008) (Fontanella is distinguishable " because in that case, the very existence of legal malpractice was contingent on whether the seat belt that allegedly caused injury had been manufactured defectively or, alternatively, whether the belt and all such belts had been designed defectively"). In the present case, as compared to Fontanella, there are no factual alternatives affecting the existence of the misrepresentations allegedly made by the defendants which must be addressed or resolved by some other litigation. Here, the only task is for the plaintiff to institute suit within the applicable limitation periods and meet her burden of proving her claims.
In summary, the court rejects the plaintiff's argument that her claims against the defendants became justiciable only after completion of her lawsuits against New Hampshire, and therefore, the court must also reject her claim that the time periods for filing suit against the defendants only began to run when these lawsuits were completed. The time limit for the filing of the negligence claims expired in November 2013, two years after the plaintiff became aware of the misrepresentation. The time limit for filing her fraud and CUTPA claims expired in June 2014, three years after the misrepresentation was made. Because suit against the defendants was not instituted within these time limits, the defendants' motion to strike the complaint must be granted.
III
The plaintiff makes the alternative argument that the facts of this case support equitable tolling of the time limits governing the filing of suit against the defendants. The purpose of equitable tolling is to " permit a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Healthcare Corporation, 920 F.2d 446, 451 (7th Cir. 1990), cert. denied, 501 U.S. 1261, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991); see also Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007) (applying equitable principals to toll the four month period within which to file an apportionment complaint under General Statutes § 52-102b). Our Supreme Court and Appellate Court have infrequently addressed the equitable tolling doctrine. See Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 167-68 n.8, 947 A.2d 291 (2008) (equitable tolling doctrine is " one to which the courts may resort when no other tolling doctrines are applicable . . ."). The undersigned extensively examined this doctrine in Saperstein v. Danbury Hospital, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Nos. X06-CV-07-5007185-S, X06-CV-08-5011032-S, (Jan. 27, 2010, Stevens, J.). In certain respects, the equitable tolling doctrine has been narrowly defined or applied. In Saperstein, this court explained that: " [b]ecause the equitable tolling doctrine is based on a 'discovery rule, ' this doctrine would appear to be inapplicable to a statute such as § 52-584 which itself incorporates a discovery rule as part of the statutory limitation. Additionally, the law is well established that equitable tolling does not apply to statutes of repose." (Citations omitted.) Id.
*** Under federal law, it is well settled that neither equitable tolling nor equitable estoppel applies to statutes of repose, for the very purpose [of such statutes] is to set an outer limit unaffected by what the plaintiff knows . . . Since a plaintiff's knowledge of facts supporting his right of action is immaterial to the legislature's judgment that after a certain period of time, no right of action should arise, it is apparent that the operation of the statute should not be suspended merely because the plaintiff has no knowledge or means of obtaining knowledge of his right of action." (Citations omitted; internal quotation marks omitted.) In Saperstein v. Danbury Hospital, supra, the court relied on Judge Sheldon's thorough review of the equitable tolling doctrine in Connecticut Insurance Guaranty Ass'n v. Yocum, Superior Court, judicial district of Hartford, Docket No. CV-94-0539691-S (June 6, 1996, Sheldon, J.) (17 Conn. L. Rptr. 343), where the following is stated: " [t]he requirements for equitable tolling were first articulated in Bailey v. Glover, 88 U.S. (21 Wall) 342, 22 L.Ed. 636 (1874). There, in a federal action to recover for fraud, the Court indicated that the doctrine operated as follows: [w]hen there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud . . . and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing . . . Since Bailey, the doctrine has been held to embrace both what is sometimes called the discovery rule, which holds that the statute begins to run only after discovery of the facts constituting the violation; and the related rule that the statute does not begin to run when a plaintiff knows that he has been injured but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant. Gallop v. Commercial Painting Co., 42 Conn.Supp. 187, 192, 612 A.2d 826 (1992) (discussing, but not applying, the doctrine of equitable tolling).
Based on Saperstein, the equitable tolling doctrine is inapplicable to § 52-584 because this statute incorporates the " discovery rule" on which the equitable tolling doctrine is based. Id. Because the equitable tolling doctrine does not apply to statutes of repose, the doctrine is also inapplicable to § 52-577. Additionally, the equitable tolling doctrine is inapplicable to § 42-110g(f), the CUTPA time limitation provision, because § 42-110g(f) creates a limitation on a statutory right of action. See Skurtu v. Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (jurisdictional time limits are not subject to equitable tolling.)
Moreover, contrary to the plaintiff's argument, the facts do not support the equitable tolling of the time requirements for the filing of her complaint even if this doctrine were applied in this case. The plaintiff concedes that a litigant seeking equitable tolling bears the burden of proving that she has pursued her rights diligently and was precluded from filing suit by some extraordinary circumstance. In order to meet this burden, the plaintiff emphasizes the difficulties she experienced in identifying the correct underinsured motorist carrier and in filing suit against New Hampshire. The plaintiff's emphasis of these facts misses the point. The dispositive issues are whether the plaintiff diligently pursued her claims against the defendants in the present action and was prevented from filing timely suit against them. According to the complaint, the defendants' misrepresentation was made in June 2011 and discovered in November 2011. The plaintiff has not offered any legal or equitable reasons why her complaint against the defendants was not filed when she became aware of the conduct in November 2011 or in the subsequent years, 2012 or 2013. In July 2012, the court, Matasavage, J., granted New Hampshire's motion for summary judgment in the first action instituted by plaintiff. After judgment entered in this action, rather than suing the present defendants within the time limitation periods, the plaintiff sued New Hampshire again. As stated in the complaint, this second action ended when the court, Brazell-Massaro, J., again entered summary judgment in favor of New Hampshire. That decision indicates that this summary judgment ruling was based on res judicata. As a matter of law, these facts do not indicate that the plaintiff diligently pursued her claims against the defendants or was precluded from pursuing these claims for any extraordinary reasons sufficient to justify the application of the equitable tolling doctrine.
CONCLUSION
For these reasons, the defendants' motion to strike the complaint is granted and the plaintiff's objection to the motion is overruled.
The defendants also move to strike the third and sixth counts of the complaint on the alternative ground that the allegations of these counts are insufficient to assert claims under CUTPA. The court is not satisfied that the parties have sufficiently briefed this issue. The plaintiff alleges that she is an employee of the Travelers. The general rule is that claims arising from employment relationships are outside the purview of CUTPA. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 684 A.2d 693 (1996); see also Kinter v. Nidec-Torin Corp., 662 F.Supp. 112 (D.Conn. 1987) (holding that employer's fraudulent misrepresentation relied on to its employee's detriment is outside of CUTPA). The complaint does not explain the plaintiff's relationship to Charter Oak or Charter Oak's relationship to the Travelers. The complaint merely alleges that if Jorritsma (the person who made the misrepresentation) was an employee of Charter Oak, she made the misrepresentation to financially benefit the Travelers. These facts suggest that Charter Oak's conduct was incidental to, rather than directly related to, its primary business activities. The Appellate Court has held that CUTPA is inapplicable to conduct that is incidental to an entity's primary trade or commerce. See McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 890 A.2d 140, cert. denied 277 Conn. 928, 895 A.2d 798 (2006). Before addressing these issues, the court would require further briefing and argument from the parties. Additionally, as discussed above, the court grants the motion to strike because of the plaintiff's failure to institute suit timely. For these reasons, the court does not reach the defendants' argument that the CUTPA counts fail to state legally sufficient claims. If the plaintiff pleads over under Practice Book § 10-44, and this argument regarding CUTPA again becomes relevant, the defendants shall not be precluded from reasserting this argument in another motion to strike notwithstanding Practice Book § § 10-6, 10-7.