2004 Ct. Sup. 15029, 38 CLR 51
No. X06-CV-03-0181773 SConnecticut Superior Court, Judicial District of Waterbury Complex Litigation Docket at Waterbury
September 29, 2004
MEMORANDUM OF DECISION
The defendant Illinois Union Insurance Co. (Illinois Union) has filed a second motion to strike the complaint in this action. On May 12, 2004, this court granted Illinois Union’s initial motion to strike all four counts of the complaint. AAAA Legal Services P.C. v. Illinois Union Insurance Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06-CV03-181773S, 36 Conn. L. Rptr. 847 (May 12, 2004) (Alander, J.). In response, the original plaintiff AAAA Legal Services P.C. (AAAA Legal Services) has filed an amended complaint, which seeks to address the deficiencies found by the court in its previous complaint. The defendant contends that the amended complaint fails to cure the defects identified by the court and similarly fails to state valid claims upon which relief can be granted. I agree.
AAAA Legal Services, a law firm, contends that a letter sent by Illinois Union, an insurance company, directly to its client, Andrew Marchese, during the pendency of a workers’ compensation claim was tortious and illegal. The original four counts of the plaintiff’s complaint were: tortious interference (first count); violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815, et seq. (second count); violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, et seq. (third count); intentional infliction of emotional distress (fourth count). Upon motion, I struck the tortious interference count because the complaint failed to allege an improper means or motive; the CUIPA count because the complaint failed to identify any statutory unfair or deceptive acts or practices allegedly engaged in by the defendant; the CUTPA count because the issuance of the letter could not reasonably be viewed as constituting an unfair or deceptive act or practice under CUTPA; and the intentional infliction of emotional distress claim because the sending of the letter could not reasonably be found to be extreme or outrageous. CT Page 15030
The amended complaint filed by AAAA Legal Services reasserts on its behalf the tortious interference, CUTPA and intentional infliction of emotional distress causes of action. The amended complaint also adds Marchese as a plaintiff and asserts violations of CUIPA and CUTPA on his behalf. The only other relevant changes to the complaint are the addition to each count of the complaint of allegations that the issuance of the letter by Illinois Union violated General Statutes § 38a-832 because it discouraged the retention of an attorney and was not approved by the insurance commissioner. These allegations do not remedy the complaint’s deficiencies.
A motion to strike only admits those facts that are well pleaded. It does not admit legal conclusions or the accuracy of opinions stated in the complaint. Emerick v. Kuhn, 52 Conn.App. 724, 739 (1999). The relevant amendments to the plaintiffs’ complaint contain no new allegations of fact.
Moreover, construing the facts of the complaint most favorably to the plaintiff, it would not be reasonable to conclude that the issuance of the letter violates § 38a-832. Section 38a-832(a) provides that “No insurer licensed to transact business in this state may, on behalf of itself or its insured, send or knowingly permit to be sent any written communication or make any oral statement to any person known or believed to have a claim for bodily injury or wrongful death against one of its insureds that affirmatively advises against the need for or discourages the retention of an attorney to represent the interest of such person in prosecuting or settling such bodily injury or wrongful death claim.” The letter sent by Illinois Union 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.” There is nothing in the content of the letter that could be construed as affirmatively advising against the need for an attorney or discouraging the retention of an attorney. To the contrary, the only reference in the letter concerning an attorney advises the recipient to forward the letter to his attorney, should he have CT Page 15031 one.
The plaintiffs argue that the mere act of sending a letter directly to a person who is represented by an attorney without sending a copy to the attorney discourages the retention of an attorney. I fail to see how this is so. The effect of the issuance of the letter can not be determined without regard to the letter’s content. It is the content of the letter, together with the surrounding circumstances, that determine whether the sender is affirmatively advising against the need for an attorney or discouraging the retention of an attorney. The plaintiffs can point to no facts alleged in the complaint from which a trier could conclude that the defendants affirmatively discouraged Marchese from using the services of his attorney.
The plaintiffs also allege that the issuance of the letter violates § 38a-832(c) because the form of the letter was not approved by the insurance commissioner. Section 38a-832(c) provides that an insurer shall be deemed to be in compliance with § 38a-832(a) if the written communication in question has been approved, prior to its use, by the insurance commissioner. It does not require that all written communications first be approved by the commissioner. Rather, it provides a vehicle through which an insurance company can assure itself that a written communication, prior to issuance, does not run afoul of §38a-832(a).
In light of the above, the assertion by the plaintiffs that the issuance of the letter by Illinois Union violates § 38a-832 fails to establish the improper means required for a claim of tortious interference, the unfair or deceptive practice required for a violation of CUTPA, and the extreme and outrageous conduct required for a claim of intentional infliction of emotional distress. It also fails to establish a violation of CUIPA as CUIPA does not define unfair practice so as to include a violation of § 38a-832. See General Statutes § 38a-816.
Accordingly, the defendant’s motion to strike all five counts of the plaintiffs’ amended complaint is granted.
BY THE COURT
Jon M. Alander Judge of the Superior Court
CT Page 15032