AAAA LEGAL SERVICES, P.C. v. ILLINOIS UNION INSURANCE CO.

2004 Ct. Sup. 7177, 36 CLR 847
No. X06-CV-03-0181773 SConnecticut Superior Court, Judicial District of Waterbury Complex Litigation Docket at Waterbury
May 13, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
ALANDER, JUDGE.

The plaintiff AAAA Legal Services P.C., a law firm, has brought this action against the defendant Illinois Union Insurance Co. (“Illinois Union”) claiming that a letter sent directly by the defendant to a client of the plaintiff during the pendency of a workers’ compensation claim was tortious and illegal. The plaintiff’s revised complaint contains the following four counts: (1) tortious interference; (2) violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes §38a-815 et seq.; (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq.; and (4) intentional infliction of emotional distress. The defendant has moved to strike all four counts of the plaintiff’s revised complaint.

The law governing the court’s consideration of a motion to strike is well established. “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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.” (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992). “It is fundamental that in determining the sufficiency of a complaint challenged by defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn. App. 192, 197 (2001). “The role of the trial court is to examine the complaint, construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action.” Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997). CT Page 7178

The plaintiff’s revised complaint alleges the following facts. The plaintiff is a law firm which was retained by Andrew Marchese on April 15, 1997 to represent him in a workers’ compensation claim. In December 2001, the defendant purchased from the State of Connecticut some of its pending workers’ compensation claims, including the claim of Marchese. Marchese’s claim was still pending when in November 2002 the defendant mailed a letter directly to Marchese and other claimants.[1] The letter to Marchese stated that the defendant had assumed liability for his workers’ compensation claim. It further stated that the defendant was inquiring whether Marchese had any interest in a settlement of his claim and that he may be able to maximize the sum of his benefits by settling his claim. The letter concluded with the following paragraph: “If you are interested in discussing a settlement of your claim, please contact me at 860-409-8352. If you are represented by an attorney, please forward this correspondence to your attorney and ask that he/she contact us on your behalf.” Marchese subsequently settled his workers’ compensation claim without utilizing further the legal services of the plaintiff.

The defendant asserts that all four counts of the plaintiff’s complaint should be stricken because the letter is neither tortious nor violative of the statutory provisions of CUIPA or CUTPA. The defendant asserts that there was nothing improper with a party to a workers’ compensation proceeding writing directly to another represented party in an effort to settle the claim. The plaintiff responds that a party in a workers’ compensation matter may not correspond concerning settlement directly with an adverse party who is represented by an attorney. Under the facts of this case as alleged by the plaintiff, I conclude that the actions of the defendant were neither tortious nor illegal.

The first count of the revised complaint alleges a tortious interference with contract. The plaintiff asserts that the defendant intentionally interfered with its contract to represent Marchese with respect to his workers’ compensation by sending the letter directly to Marchese and without sending a copy to the plaintiff, thereby encouraging Marchese to terminate the services of the plaintiff and settle his claim without its services.

“Although Connecticut courts long have recognized a cause of action for tortious interference with contract rights or other business relations the case law indicates, nonetheless, that not CT Page 7179 every act that disturbs a contract or business expectancy is actionable. For 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. An action for intentional interference with business relations requires the plaintiff to plead and prove at least some improper motive or improper means . . . Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant’s commission of a tort. A claim is made out only when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. Not every act of interference is tortious. (Internal quotation marks and citations omitted.) Downes-Patterson Corp. v. First Nat. Supermarkets, 64 Conn. App. 417, 429, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed, June 25, 2002).

The plaintiff has not alleged any fraud, malice or misrepresentation on the part of the defendant in sending the letter to Marchese. The plaintiff has also not provided any authority that supports the proposition that the sending of the letter was improper. The plaintiff does suggest that Rule 4.2 of Rules of Professional Responsibility and Brunswick v. Safeco Insurance Company, 48 Conn. App. 699 (1988), prohibit the communication by one party in a legal proceeding with another party who is represented by an attorney. The plaintiff’s reliance on both authorities is misplaced.

Rule 4.2 provides that a lawyer, in representing a client, may not communicate about the subject of the representation with a party that the lawyer knows to be represented by another lawyer.[2] The plaintiff’s complaint does not allege and the defendant’s letter does not indicate that the writer of the letter was an attorney. Rule 4.2 simply does not prohibit one party involved in litigation from communicating directly with another party. See Commentary to Rule 4.2 which states that parties to a matter may communicate directly with each other. See also Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236 (1990) (“Contact between litigants . . . is specifically authorized by the comments under Rule 4.2”).

Brunswick v. Safeco Insurance Company similarly fails to support the plaintiff’s claim that the letter was improper. In CT Page 718 Brunswick, the plaintiff attorney sought damages from the defendant insurer claiming that the defendant improperly settled a personal injury action directly with the plaintiff’s former client. As special defenses, the defendant asserted that the plaintiff had failed to comply with General Statutes § 52-251(c) and Rule 1.5(c) of the Rules of Professional Conduct which require that contingent fee agreements be in writing. The trial court entered summary judgment for the defendant and the Appellate Court affirmed. But see Gagne v. Vaccaro, 255 Conn. 390, 408 n. 16 (2001), in which the Supreme Court reversed the holding of the Appellate Court in Brunswick v. Safeco Insurance Company that an attorney who worked on a personal injury case could not collect his fee from a successor attorney after settlement in the absence of a written fee agreement between the attorney and the client.

The plaintiff here argues that the Appellate Court i Brunswick implied in its affirmance of the trial court’s entry of summary judgment on the count alleging tortious interference with contractual relations that contact by the defendant would have been improper had a valid fee agreement between the parties been in place. No such implication is warranted. The Appellate Court held that there was no cause of action for tortious interference because there was no evidence that the defendant was the cause of the client’s terminating the plaintiff’s employment. Since there was no evidence in Brunswick that the defendant initiated correspondence with the plaintiff prior to the termination of legal representation, the Appellate Court did not need to and did not address the issue of whether any such contact would have been improper.

Because the plaintiff has not alleged facts that indicate an improper motive or means by which it claims that the defendant has interfered with its contract with Marchese, the first count of its complaint fails to state a claim of tortious interference and must be stricken.

In the second count of its complaint, the plaintiff asserts a violation of the Connecticut Unfair Insurance Practices Act (CUIPA). CUIPA prohibits any person from engaging in an unfair or deceptive act or practice in the business of insurance. General Statutes § 38a-815. Unfair and deceptive acts or practices in the business of insurance are specifically defined by statute. See §38a-816. These acts or practices include itemized unfair claim settlement practices.[3] § 38a-816(6). CT Page 7181

The plaintiff has not in its complaint or in its memorandum in opposition to the motion to strike pointed to any specific section of CUIPA or to any of the unfair or deceptive acts specifically identified by the provisions of CUIPA as support for its claim that the actions of the defendant violate that statute. Moreover, despite this court’s request at oral argument on the motion to strike, the plaintiff has not identified any specific provision of CUIPA that it claims the defendant has violated.[4] In light of the plaintiff’s failure to identify any provision of CUIPA that it claims the defendant has violated by sending the letter to Marchese, the second count of the plaintiff’s complaint which seeks to assert a claim of a violation of CUIPA must be stricken.

In the third count, the plaintiff asserts that the defendant’s conduct violates the Connecticut Unfair Trade Practices Act (CUTPA). CUTPA provides that “no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes §42-110b(a). The plaintiff asserts that the defendant’s actions were both unfair and deceptive.

The test for ascertaining whether a practice is unfair in the eyes of CUTPA is well established. “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the `cigarette rule’ by the federal trade commission for determining when a practice is unfair: (1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, competitors or other businessperson. All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Citations and internal quotation marks omitted.)Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68 (1999).

Examined in the light most favorable to the plaintiff, the complaint fails to allege sufficient facts that if proven would CT Page 7182 meet the test for unfairness established by the cigarette rule. The complaint as written is devoid of any facts which indicate that the practice complained of offends the public policy of this state or is immoral, unethical, oppressive or unscrupulous. The plaintiff can point to no source, be it statute, the common law or established concepts of unfairness, that tender it improper for an insurance company to mail a letter directly to a party represented by counsel in a workers’ compensation matter inquiring as to the party’s interest in settlement and recommending referral of the letter to that party’s attorney.

The plaintiff’s complaint also fails to establish that the issuance of the letter was in any way deceptive. In Caldor, Inc. v. Heslin, 215 Conn. 590 (1990), the Connecticut Supreme Court established that three requirements must be met in order to find that an act or practice is deceptive under CUTPA: first, there must be a representation, omission, or other practice likely to mislead consumers; second, the consumers must interpret the message reasonably under the circumstances; third, the misleading representation, omission, or practice must be material — that is, likely to affect consumer decisions or conduct. Caldor, Inc. v. Heslin, supra, 215 Conn. 597.

The plaintiff has not indicated to this court any manner in which the letter sent by the defendant was deceptive. The plaintiff has not alleged that the letter contains misrepresentations or misleading statements. The letter merely asks Marchese whether he is interested in settling his workers’ compensation claim and to contact the defendant if he is interested in discussing settlement. The letter specifically informs Marchese, if he is represented by an attorney, to forward the letter to his attorney and have his attorney contact the defendant. It would not be reasonable for a fact finder to find such a letter to be misleading or deceptive.

In the fourth count of its complaint, the plaintiff asserts a claim of intentional infliction of emotional distress. The tort of intentional infliction of emotional distress requires conduct that was extreme and outrageous. Petyan v. Ellis, 200 Conn. 243, 253 (1986). “In determining what conduct is extreme and outrageous `[t]he rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.’ (Emphasis in original; internal quotation marks omitted.) Id.,
CT Page 7183 254 n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. `It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.’ (Internal quotation marks omitted.) Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 19 n. 1, 597 A.2d 846 (1991), quoting 1 Restatement (Second), Torts § 46, comment (h), p. 77 (1965). Only if reasonable people could differ should the question be left for the jury. Mellaly v. Eastman Kodak Co., supra, 19 n. 1.” Campbell v. Plymouth, 74 Conn. App. 67, 78 (2002).

The plaintiff has failed to point to any authority showing that the defendant’s action in sending the letter to a represented party was improper. The letter expressly states that if the recipient is represented by an attorney, the correspondence should be forwarded to the attorney so that the attorney can contact the defendant on the recipient’s behalf. It would not be reasonable for a fact finder to conclude that the issuance of such a letter was extreme and outrageous.

In light of the above, the defendant’s motion to strike all four counts of the plaintiff’s complaint is hereby granted.

BY THE COURT

Jon M. Alander Judge of the Superior Court

[1] A copy of the letter to Marchese is attached to the plaintiff’s complaint.
[2] The full text of Rule 4.2 states that: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
[3] A claim under CUIPA predicated upon alleged unfair claim settlement practices in violation of 38a-816(6) requires proof that the unfair settlement practices were committed or performed “with such frequency as to indicate a general business practice.” The plaintiff’s complaint alleges that on one occasion the defendant mailed a settlement letter to Marchese and other claimants. It is not clear that such an allegation is sufficient CT Page 7184 to constitute a practice of the defendant committed with such frequency as to indicate a general business practice as required for a violation of CUIPA’s ban on unfair claim settlement practices. See Mead v. Burns, 199 Conn. 651 (1986), in which the court found insufficient under § 38a-816(6) an allegation of a single instance in which the insurer had knowingly and in bad faith refused to pay a claim without conducting a reasonable investigation. In light of my determination that the plaintiff’s cause of action under CUIPA flounders because the plaintiff fails to cite a section of CUIPA which arguably was violated by the defendant’s conduct, I need not reach this issue.
[4] General Statutes 38a-832 places limits on the communications that may be made by an insurer to any person who has a claim for bodily injury or wrongful death against one of its insureds. Section 38a-832(a) prohibits an insurer from affirmatively advising against the need for or discouraging the retention of an attorney by the injured party. The plaintiff has not cited this statute as a basis for its claims and has not alleged facts that would support a claim that the statute was violated by the conduct of the defendant.

CT Page 7185