Opinion
No. CV 02-0079206
April 4, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE (101)
This action is brought in four counts alleging in the First Count, conversion of the property of Jeffrey Edmund Dembinski; in the Second Count, breach of fiduciary duty owed to James E. Dembinski; in the Third Count, conversion of the property of the estate of James E. Dembinski; and in the Fourth Count, tortious interference with prospective economic advantage by the Defendant. The Plaintiffs are the executrix of the estate of James E. Dembinski and James Dembinski's son, Jeffrey Dembinski. The essence of the claims made is that James Dembinski purchased a life insurance policy on the life of his son, Jeffrey Dembinski. The Defendant, Denise Dembinski, James Dembinski's wife, subsequently surrendered the policy through authority granted to her by a power of attorney from James Dembinski but without his consent or knowledge. It is further alleged that the Defendant retained the proceeds of the policy for her own use and benefit.
The Defendant has moved to strike counts one, three and four of the complaint as legally insufficient. A motion to strike is the appropriate means to test the legal sufficiency of the counts of a complaint. Practice Book § 10-39(a) (1). In ruling on a motion to strike, the trial court "`must take the facts to be those alleged in the plaintiff's complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency.' Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988)." Warner v. Konover, 210 Conn. 150, 152 (1989). As to the Second Count, the Defendant moves to strike it because of the absence of a necessary party.
The First Count is entitled "[a]s to conversion of property of Jeffrey Edmund Dembinski by the Defendant." The Defendant claims that the First Count should be stricken because it is legally insufficient in stating a claim based on conversion in that it is not alleged that the policy belonged to the Plaintiff Jeffrey Edmund Dembinski and in fact it is alleged that the owner was James Dembinski. In Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91 (1994), the Court stated: "`We have defined conversion as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.' (Internal quotation marks omitted.) Moore v. Waterbury Tool Co., 124 Conn. 201, 209, 199 A. 97 (1938); see also Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983); Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979); 1 Restatement (Second), Torts § 222A (1965); D. Wright J. Fitzgerald, Connecticut Law of Torts (2d Ed. 1968) § 25 (`[a]n action of conversion is a suit for damages by the owner of a chattel or by one entitled to the immediate possession of the chattel, against one who has wrongfully appropriated the chattel . . . in derogation of the rights of the rightful owner or possessor')." The Plaintiff's claim that as an insured Jeffrey Dembinski has a property interest in the policy yet they cite no case law in support of this proposition. However, the complaint alleges that pursuant to a judgment of marital dissolution, the owner of the policy was to maintain it "for the benefit" of the Plaintiff, Jeffrey Dembinski. Construing this language in the light most favorable to the Plaintiff, the Plaintiff has alleged an interest in the policy. The term "owner" has various meanings and is not limited to the holder of the legal title. Hope v. Cavallo, 163 Conn. 576, 581 (1972). The Motion to Strike the First Count is denied.
The Defendant also moves to strike the Second Count which claims a breach of Defendant's fiduciary duty to James Dembinski. The Defendant claims that James Dembinski is not a party to this case and even assuming this count is brought by his executrix, the complaint alleges no duty owed to the estate nor any standing to sue on behalf of the decedent for a breach of duty during his lifetime. The case cited by the Defendant, Ardito v. Olinger, 65 Conn. App. 295 (2001), is inapposite. There the complaint was brought by a stranger to the transaction involved while here the suit is brought by the executrix of the estate of the person who claims to have been owed a fiduciary duty by the Defendant. As noted below, the executrix has the statutory authority to pursue causes of action belonging to her decedent. The Motion to Strike the Second Count is denied.
In the Third Count of the Complaint the Plaintiff claims "[a]s to conversion of the Estate of James E. Dembinski by the Defendant." The Defendant moves to strike this count because "the property of a living person, whether lost, sold, stolen or converted, cannot be claimed as property of his/her estate upon death months later." The Defendant claims the owner of the policy died months after it was allegedly converted. In addition, the Defendant claims that the tort of conversion requires that the tortfeasor act without authority and here it is alleged that the conversion was accomplished through the Defendant's power of attorney. The Plaintiffs argue that the survival statutes, in particular, General Statutes § 52-599, which provides that "[a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person," allows the Plaintiff, the executrix of James Dembinski's estate, to pursue an action for conversion against the Defendant. In addition, the Plaintiff claims that even if the Defendant had authority to surrender the insurance policy, it is alleged that she converted the proceeds to her own use and benefit. Construing these allegations in the light most favorable to their validity, any cause of action which the decedent may have had against the Defendant for conversion survived in favor of his executor. In addition, the allegation in paragraph 9 of the Third Count that the Defendant "without the knowledge and/or authority from the Owner, wrongfully surrendered said policy and retained said proceeds and benefits of said policy and thereby converted it to her own use and benefit" are sufficient to set forth a claim in conversion. Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779 (1994). The Motion to Strike the Third Count is denied.
The Defendant moves to strike the Fourth Count which alleges "tortious interference with prospective economic advantage by the Defendant." "The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant (s), `knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss.' Harry A. Finman Son, Inc. v. Connecticut Truck Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975). "`[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously.' (Citations omitted.) Blake v. Levy, supra, 261, quoting Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-02 374 A.2d 179 (1977); see also Jones v. O'Connell, 189 Conn. 648, 650, 458 A.2d 355 (1983). The burden is on the plaintiff `to plead and prove at least some improper motive or improper means'; Blake v. Levy, supra, 262; on the part of the defendants." Solomon v. Aberman, 196 Conn. 359, 364-65 (1985). The allegations of the complaint are sufficient to support such a claim. The Plaintiff claims that there was a policy of insurance for which he was the beneficiary, the Defendant interfered with his status as a beneficiary by surrendering the policy, and as a result he suffered a loss of that expectancy. Lastly, the Defendant is alleged to have converted the cash, which she received as a result of the surrender of the policy, to her own use. The Motion to Strike the Fourth Count is denied.
In conclusion, the Motion to Strike is denied in its entirety.
Jane S. Scholl, J.