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Spencer v. Boucher

Superior Court of Connecticut, Judicial District of New Britain, New Britain

September 10, 2015

Michael Spencer
v.
Edward Boucher et al

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE #128

Cynthia K. Swienton, J.

The defendant, The Hartford Financial Services Group, Inc., has moved to strike count three of the plaintiff's amended complaint (and the corresponding prayer of relief) on the ground that the plaintiff has failed to allege either that it is insured by Hartford Financial or that it is a third party to the contract, with a prior judgment against the insured.

FACTS

On September 3, 2014, the plaintiff, Michael Spencer, filed the original complaint against the defendants, Edward Boucher, Ann Boucher, and The Hartford Financial Services Group, Inc. (Hartford Financial). On May 18, 2015, the plaintiff filed a three count amended complaint against the defendants, which is the operative complaint.[1]

Count one of the amended complaint alleges negligence against Edward Boucher, count two of the complaint alleges vicarious liability, pursuant to General Statutes § § 14-154a and 52-183, against Ann Boucher, and count three of the complaint alleges violation of Connecticut Unfair Trade Practices Act (CUTPA) and Connecticut Unfair Insurance Practices Act (CUIPA) against Hartford Financial. Count three of the complaint is the only relevant claim for the present motion to strike. Count three alleges the following relevant facts.

Edward Boucher, who was negligently operating a motor vehicle, struck the plaintiff's motorcycle. The plaintiff's vehicle sustained significant collision damages because of Edward Bouchard's negligent conduct. Furthermore, at all relevant times, Ann Boucher was the owner of the motor vehicle that was operated by Edward Boucher, and is liable pursuant to § § 14-154a and 52-183.

After the collision, the plaintiff met with a representative of Hartford Financial, and was " told not to have any work done to the motorcycle until the representative was able to determine the value of the bike." As of May 18, 2015, the motorcycle remains unrepaired and unusable. Hartford Financial's actions constitute violations of CUIPA, General Statutes § 38a-816(6) et seq., and CUTPA, General Statutes § 42-110a et seq. The plaintiff seeks monetary damages for repair costs and loss of use, as well as statutory damages, pursuant to General Statutes § 42-110g.

On June 12, 2015, Hartford Financial filed a motion to strike. On July 14, 2015, the plaintiff filed an objection. Finally, on August 5, 2015, Hartford Financial filed a reply to the objection. The matter was heard at short calendar.

DISCUSSION

" 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). " [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). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).

Hartford Financial moves to strike count three of the amended complaint (and the corresponding prayer for relief) because the plaintiff does not have a valid cause of action against it or against the insurer of the co-defendants, Hartford Insurance Company (Hartford Insurance), [2] in the absence of a judgment against the insured co-defendants. More specifically, Hartford Financial argues, citing to Carford v. Empire Fire & Marine Ins. Co., 94 Conn.App. 41, 891 A.2d 55 (2006), that even if the plaintiff had sued Hartford Insurance, a third party to the insurance contract, such as the plaintiff, cannot bring a cause of action for the violation of CUTPA or CUIPA prior to a judicial determination of its insured's liability.

The plaintiff counters that the binding authority that Hartford Financial relies on has been overruled, and that more recent Supreme Court authority, Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 947 A.2d 320 (2008), ( Artie's I ), as well as Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 119 A.3d 1139 (2015), ( Artie's II ), permits third party beneficiaries to a contract between the insurer and the insured, such as the plaintiff, to sue the insurance company directly.

Count Three (CUTPA/CUIPA)

In Carford v. Empire Fire & Marine Ins. Co., supra, 94 Conn.App. 41, the plaintiffs were injured by the negligent driving of a tractor trailer driver. The defendant was bound contractually to the tractor trailer driver and his employer under the terms of the insurance policy at the time of the collision. The plaintiffs filed a complaint alleging breach of an implied covenant of good faith and fair dealing, and violation of CUTPA and CUIPA by engaging in unfair acts or practices in the conduct of its business. The plaintiffs argued, in part, " that the court improperly granted the defendant's motion to strike the second count of the complaint because an ...


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