Opinion
No. CV-06-5001222
December 1, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #136
FACTS
On June 13, 2006, the plaintiff, Andre Rancourt, commenced this action against the defendant, Allstate Insurance Company, seeking uninsured/underinsured benefits under the automobile insurance policy issued by the defendant to the plaintiff's cousin, Michael Rancourt. In his original Complaint, filed on June 19, 2006, the plaintiff alleged, inter alia, the following facts. On or before June 27, 2004, the defendant issued to the plaintiff's cousin a policy of insurance which included coverage of bodily injury sustained by a covered person and caused by an accident arising out of the ownership, maintenance or use of an uninsured or underinsured motor vehicle. The plaintiff is an insured, as a resident relative, under the terms of the policy issued by the defendant to the plaintiff's cousin. On June 27, 2004, when the policy was in full force, the plaintiff sustained severe and permanent bodily injuries when a vehicle owned and operated by an underinsured motorist struck the vehicle operated by the plaintiff. Accordingly, the plaintiff alleges that he is legally entitled to recover damages caused by the underinsured motorist because the collision and the injury to the plaintiff were the result of the negligent use of the underinsured vehicle.
On May 4, 2007, the defendant filed an Amended Answer with Special Defenses and a Motion for Summary Judgment. On June 20, 2007, the plaintiff filed an Amended Complaint adding claims of bad faith, violations of CUIPA/CUTPA and recklessness. On April 25, 2008, the court (Peck, J.) granted the Motion for Summary Judgment on the ground that no genuine issue of material fact existed regarding the issue of whether plaintiff was not a covered person under the terms of the defendant's policy, thus entitling defendant to judgment as a matter of law. Specifically, the court determined that the plaintiff was an occupant of a vehicle that he owned, for which he maintained underinsured motorist coverage at the time of the accident, and accordingly he was precluded from obtaining underinsured motorist benefits under his cousin's insurance policy and limited to the amount of his own uninsured/underinsured coverage. On May 9, 2008, the plaintiff filed a Second Amended Complaint reaffirming his allegations of bad faith (second count) and CUIPA/CUTPA violations (third count). On July 9, 2008, the defendant filed an Answer and Special Defenses to the plaintiff's Second Amended Complaint in which defendant alleges two separate special defenses to the second and third counts, respectively, arguing that such counts fail to state a claim because it has already been determined by the court (Peck, J.), pursuant to its decision regarding the Motion for Summary Judgment, that the defendant has no obligation to pay the plaintiff under the uninsured/underinsured motorist policy at issue.
On July 18, 2008, the plaintiff filed a Motion to Strike the defendant's Special Defenses and defendant filed a memorandum of law in opposition dated August 1, 2008. The matter was heard at the short calendar on August 4, 2008.
DISCUSSION
"Practice Book § 10-39(a) provides: Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n. 20, 905 A.2d 1165 (2006). "In . . . ruling on the . . . motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
In his Memorandum of Law in support of the Motion to Strike the Special Defenses, the plaintiff argues that the defendant's Special Defenses should be stricken because the judicial determination that the defendant is not obligated to pay the plaintiff benefits does not shield them from allegations of bad faith and violations of CUIPA/CUTPA. In its Memorandum of Law in opposition, the defendant counters that it has alleged legally sufficient special defenses contending that the plaintiff has no cause of action for bad faith and/or CUIPA/CUTPA violations as a result of the court's (Peck, J.) decision on Motion for Summary Judgment finding that the defendant has no obligation to pay the plaintiff under the insurance policy.
The defendant's Special Defenses are based on the rationale that if the insurer is found to have no obligation to pay under the policy, its refusal to do so and/or the manner by which it refused to do so cannot provide the basis for claims of bad faith or violations of CUIPA/CUTPA. "Several trial court opinions seem to be in accord with [this rationale]. See, e.g., Bergen v. The Standard Fire Ins. Co., [Superior Court, judicial district of Ansonia-Milford, Docket No. CV 93 044099 (December 31, 1997, Corradino, J.) (20 Conn. L. Rptr 154)] (`The plaintiff has to show that it is entitled to recover under the policy before the insurer can be shown to have acted in bad faith'); Patrons Mutual Ins. Co. v. MaGuire, Superior Court, judicial district of New Haven, Docket No. [CV 95 0374329] (March 26, 1997, McMahon, J.) (19 Conn. L. Rptr. 133, 136) (where it is determined that insurer was no obligated to indemnify or defend, insurer could not have breached duty of good faith); Vincenzi v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 337630 (February 6, 1997, Skolnick, J.) (where insurer found to have no obligation to pay, bad faith claim [and CUTPA/CUTPA claims] based upon refusal to pay [fail] as well); Sponzo v. Hartford Underwriters Ins. Group, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 543134 (March 15, 1996, Aurigemma, J.) (`Failure to pay a claim which it was not obligated to pay under the terms of the policy is clearly not bad faith')." (Internal quotation marks omitted.) McCarthy v. The Travelers Indemnity Company, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0345443 (March 29, 2000, Melville, J.).
Furthermore, the covenant of good faith and fair dealing requires "that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). In the present case, the plaintiff does not possess any rights to receive any benefits under his cousin's insurance contract. Accordingly, since the plaintiff never possessed any benefits under the subject insurance policy, the defendant could not have done anything to interfere with the plaintiff's ability to attain those benefits.
In addition, "[i]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . ." (Internal quotation marks omitted.) Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). Here, the defendant owes no duty of good faith and fair dealing to the plaintiff, there was no contractual relationship between the parties, a necessary antecedent to any claim of breach of the duty of good faith and fair dealing. See Carford v. Empire Fire and Marine Ins. Co., 94 Conn.App. 41, 891 A.2d 55 (2006).
Similarly, since the defendant had no obligation to pay under the policy, the defendant could not have violated CUIPA or CUTPA. See Wright v. State Farm Mutual Auto. Ins., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0561270 (November 18, 1997, Aurigemma, J.) ("Having no obligation to pay under the policy, [the insurance company] could not have violated CUIPA or CUTPA").
CONCLUSION
Based on the foregoing, the court hereby denies the plaintiff's Motion to Strike defendant's Special Defenses.