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Veilleux v. Progressive Northwestern Insurance Co.

United States District Court, D. Connecticut

January 18, 2018

ERIC VEILLEUX, Plaintiff,
v.
PROGRESSIVE NORTHWESTERN INSURANCE COMPANY et al. Defendants.

          RULING ON MOTION TO DISMISS

          MICHAEL P. SHEA, U.S.D.J.

         This case arises out of the plaintiff's suit against insurers to collect a judgment from two insureds. The plaintiff, Eric Veilleux, brought suit against the defendants, Progressive Insurance Company (“Progressive”) and Nautilus Insurance Company (“Nautilus”), to collect on a stipulated judgment entered against Central Auto & Transport, LLC (“Central Auto”) and Central Rigging & Transfer, LLC (“Central Rigging”). This Court previously approved a stipulation of dismissal with respect to the claims against Nautilus (see ECF No. 78; ECF No. 76); hence, Progressive is the lone remaining defendant. Veilleux's remaining claims against Progressive include the following: (i) a direct action under Conn. Gen. Stat. § 38a-321 against Progressive for the full amount of a $750, 000 insurance policy provided to Central Auto (count one); (ii) a common law claim for the same amount advanced under the assignment of rights from Central Auto to Veilleux (count two); (iii) a common law claim for the same amount as a judgment creditor of Central Auto and or as a third party beneficiary of the policy between Central Auto and Progressive (count three); (iv) a claim for breach of the implied covenant of good faith and fair dealing on the basis of Progressive's failure to honor Central Auto's policy (count four); (v) a direct action under Conn. Gen. Stat. § 38a-321 against Progressive for the full amount of a $1, 000, 000 insurance policy provided to Central Rigging (count five); (vi) a common law claim for the same amount advanced under the assignment of rights from Central Rigging to Veilleux (count six); and (vii) a claim for breach of the implied covenant of good faith and fair dealing on the basis of Progressive's failure to honor Central Rigging's policy (count seven). Progressive has filed a motion to dismiss counts two, three, four, six, and seven of the plaintiff's amended complaint. (ECF No. 21). For the following reasons, the motion to dismiss is hereby DENIED.

         I. Factual Allegations

         Veilleux makes the following allegations, which I assume to be true.

         Veilleux was an employee of G.D.S. Contracting Corp. (“G.D.S.”) in Berlin, Connecticut, at the time of the events underlying this case. (ECF No. 17-1, Count 1, at ¶ 3).[1] On September 8, 2006, a tractor and trailer owned by Central Auto or Central Rigging[2] delivered an aerial lift to G.D.S. (Id. at ¶¶ 2-3; ECF No. 17-1 Count Five, at ¶¶ 2-3). “In the course of unloading the aerial lift from the tractor, which involved the operation of both the tractor and the trailer by [driver Joseph Cunningham], [Veilleux] suffered severe, serious, and permanent personal injuries while in the bucket of the aerial lift.” (ECF No. 17-1, Count 1, at ¶ 4). “On or about September 3, 2008, the Plaintiff filed suit in Hartford Superior Court . . . seeking recovery from [Central Auto and Central Rigging] for the severe, serious, and disabling injuries suffered by [Veilleux]. . . .” (Id. at ¶ 5; ECF No. 17-1, Count 5, at ¶ 6). On March 30, 2016, Veilleux entered into a stipulation with Central Auto and Central Rigging, “upon which judgment entered on said date, wherein [both companies] stipulated to liability for the injuries suffered by [Veilleux] as aforesaid, and to judgment in favor of [Veilleux] in the amount of Three Million Seven Hundred and Fifty Thousand Dollars ($3, 750, 000), plus costs.” (ECF No. 17-1, Count One, at ¶ 6; ECF No. 17-1, Count Five, at ¶ 7).

         At the time of Veilleux's injuries, Central Auto and Central Rigging were both insured for liability for such injuries by Progressive. Central Auto's policy, which covered the policy period of June 2, 2006 through June 2, 2007, provided for total coverage of up to seven hundred and fifty thousand dollars, along with the cost of defense. (Id. at ¶ 7). Central Rigging's policy, which covered the period from March 10, 2006 through March 10, 2007, provided for total coverage of up to one million dollars, along with the cost of defense. (ECF No. 17-1, Count Five, at ¶ 8). Despite these policies and despite having “an obligation to insure and defend [Central Auto and Central Rigging] in the cause of action brought by Veilleux, ” (ECF No. 17-1, Count One, at ¶ 10; ECF No. 17-1, Count Five, at ¶ 10), Progressive “neglected and/or refused to provide coverage to [both companies] for the aforesaid accident and injuries to [Veilleux] as aforesaid.” (ECF No. 17-1, Count One, at ¶ 9; ECF No. 17-1, Count Five, at ¶ 9).

         II. Legal Standard

         “To survive a [Fed. R. Civ. P. 12(b)(6)] motion, the complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Morales v. Weiss, 569 Fed.Appx. 36, 37 (2d Cir. 2014), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a complaint to survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff's claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., No. 09-cv-1412, 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). When reviewing whether a complaint makes it across this line, a court must “draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).

         III. Discussion

         a. Counts Two, Three, and Six

         Progressive claims that Veilleux's second, third, and sixth counts-all of which advance common law claims against it based on its failure to provide coverage to Central Auto and Central Rigging-must be dismissed because Conn. Gen. Stat. § 38a-321 provides the “sole basis upon which the plaintiff may pursue Progressive for satisfaction of all or part of the Stipulated Judgment entered into against [Central Auto and Central Rigging].” (See ECF No. 22 at 1). For the following reasons, I conclude that this argument contains no merit.

         Conn. Gen. Stat. § 38a-321, otherwise known as the “direct action statute, ” see Tucker v. Am. Int'l Grp., Inc., 936 F.Supp.2d 1, 13 (D. Conn. 2013), provides in relevant part as follows:

Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. . . . Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.

Conn. Gen. Stat. § 38a-321. A plaintiff must make three showings to set out a cause of action under this statute: “(1) that the plaintiff has recovered a final judgment; (2) that the judgment is against a person who was insured by the defendant against liability on it; and (3) that the judgment remains unsatisfied.” Tucker, 936 F.Supp.2d at 8, quoting Skut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 393 (1955). If the judgment remains unsatisfied “for more than 30 days, the injured party is subrogated to the rights of the insured ...


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