2006 Ct. Sup. 15170
No. X04-CV04 0104056 SConnecticut Superior Court Judicial District of Middlesex Complex Litigation Docket at Middletown
August 18, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#191)
ROBERT E. BEACH, JUDGE.
The original plaintiff brought the instant action, claiming that the defendant Bolesta negligently drove into and caused damage to his premises. He also claimed that his insurance agent, Robert Pangalos d/b/a Cranston Insurance Associates, failed to procure property insurance for the premises in circumstances where he should have done so. Pangalos, in turn, filed a third-party complaint against the third-party defendant NIF Services of New England, Inc. (“NIF”), an insurance broker. Essentially, Pangalos claims that NIF caused the lapse of coverage.
NIF has moved to strike four counts of the third-party complaint. In deciding a motion to strike on the ground of whether a claim has been stated on which relief may be granted, the court must confine itself to the allegations of the pleading, both express and necessarily implied, and must accept as true those allegations. See, e.g., Gazo v. Stamford, 255 Conn. 245, 260 (2001); see also Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990). The pleadings will be construed in favor of the pleader if there is any ambiguity as to whether relief could be granted under the pleading. Doe v. Marselle, 38 Conn.App. 360, 364 (1995). Conclusions which are pled, however, need not be accepted as true for the purpose of ruling on motions to strike. Doe v. Yale University, 252 Conn. 641, 694 (2000).
The first count purports to state a cause of action for common-law indemnity. The elements of common-law indemnity are: a) the defendant was negligent; b) the defendant’s negligence was the direct cause of the injury; c) the defendant was in control of the situation to the exclusion of the plaintiff; and d) the plaintiff did not know of the defendant’s negligence, had no reason to anticipate the negligence and reasonably relied on the CT Page 15171 defendant not to be negligent. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698 (1997); Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 698 (1988).
The third-party complaint alleges that on August 23, 2002, the original plaintiffs signed a broker of record letter with Pangalos; that Pangalos sent a copy of the letter to NIF with a request that NIF obtain a renewal of the policy written by the Scottsdale Insurance Company; that an employee of NIF acknowledged receipt of the letter and agreed to renew the policy at the end of five business days from August 23, 2002; that on September 19, 2002, NIF notified Pangalos that Pangalos had to complete another form in connection with the Scottsdale renewal; and that he completed the form and returned it to NIF on September 23, 2002. The accident causing property damage reportedly occurred in August 2003, during the putative policy year. The policy had never been procured. Pangalos then alleged the elements of common-law indemnity as stated above.
NIF claims that the count fails to state a claim on which relief can be granted because the facts, if believed, do not establish that NIF was in control of the situation to the exclusion of Pangalos. Pangalos, it is argued, at a minimum shared the duty of procuring insurance for the client. It relies on authority such as Cianci v. Fleet Bank, N.A., 2005 WL 647919. While I agree with the reasoning of Judge Shapiro and the result in Cianci, I do not believe that the Cianci factual situation is strictly analogous. In Cianci, a banking customer claimed that she injured her hand while attempting to effect a transaction at a night depository box at a Fleet Bank location. She sued Fleet. Fleet brought a third-party complaint against Mosler, Inc., which had a service agreement with Fleet regarding the box. The facts alleged in that case did not, according to Judge Shapiro, sufficiently allege facts on which one could find that Mosler was in exclusive control of the situation to the exclusion of Fleet.
In the case at hand, I cannot say with complete assurance that the facts could not support a finding of exclusive control, depending to a degree on how narrowly one defines the situation over which control is exercised. If the situation is defined narrowly as the procurement of a policy from Scottsdale, the facts alleged might possibly support a conclusion that only NIF, and not Pangalos, had control of that transaction once Pangalos’s documentation was complete. The issue awaits factual development, CT Page 15172 and the motion to strike is denied as to the first count.
The second count claims a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), General Statutes §§ 42-110a et seq. NIF has moved to strike the count because it does not allege facts sufficient to show immoral, unscrupulous or unethical behavior; see, e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc. 216 Conn. 200, 215 (1990); nor do facts allege a violation of the Connecticut Unfair Insurance Practices Act (“CUIPA”), General Statutes §§ 38a-816 et seq:
The second count of the third-party complaint incorporates factual allegations from the first count and goes on to allege that NIF’s actions were undertaken in the course of its business as an insurance broker. The count (¶ 15) alleges that NIF’s actions were immoral, unethical, unscrupulous, deceptive, unfair and violative of public policy; and that the actions were unfair and deceptive acts or practices in the insurance business (¶ 16). No specific CUIPA violation is alleged, either descriptively or by statutory subsection number.
I find that, as presently phrased, the count does not allege sufficient facts to state CUTPA or CUIPA violations. Though sufficient adjectives are employed in describing supposedly actionable conduct, no facts are stated to show deceptive or otherwise devious or immoral conduct. See Murillo v. Seymour Ambulance Ass’n., Inc., 264 Conn. 474, 476 (2003). There is no allegation, for example, that NIF marketed itself as providing services that it didn’t provide, or that it took payment with no intention of providing an appropriate product. Rather, from what is pled, the most that can be said is that NIF represented that a policy was in place when it wasn’t so. Though there are circumstances under which such conduct could be unscrupulous in a variety of ways, none is pleaded. Similarly, although no specific subsection of § 38a-816 is pled, Pangalos argues that the elements of subsections (2) and (8) could be met by the pleadings. The difficulty with the assertion is that subsection (2) requires statements to the public which are misleading, untrue or deceptive (and advertising media are specifically mentioned); and subsection (8) proscribes making false or fraudulent statements relative to an application for insurance for the purpose of obtaining a benefit. Again, the facts which are pled could provide part of a cause of action, but elements are missing. The motion to strike the second count is granted. CT Page 15173 The third count alleges breach of contract and is not the subject of the motion to strike. The fourth count alleges breach of a fiduciary duty on the part of NIF. The count incorporates the factual allegations of the first count and further alleges that Pangalos placed a unique degree of trust and confidence in NIF, that NIF had superior knowledge about the area of insurance in issue, that NIF had a duty to “represent the interests of” Pangalos in the transaction (¶ 17), and that it breached its fiduciary duty by neither placing the insurance nor advising Pangalos that further action was needed and the insurance had not been placed.
It is difficult specifically to categorize those sorts of relationships which give rise to fiduciary duties. They are characterized by one party’s placing of a high degree of trust and confidence in the other, who has superior knowledge or control. The unequal nature of the relationship creates the duty of the fiduciary to act in the interest of the otherwise unprotected party. Examples include attorney-client, trustee-beneficiary and similar relationships where control has been ceded, from convenience or necessity, from one to another. See, e.g., Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 640-41 (2002); Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38-41 (2000).
Most commercial relationships do not create fiduciary duties. Though there are implied duties of good faith and fair dealing, the ordinary business dealing, whether a consumer transaction or not, does not establish a fiduciary relationship simply because one party relies on the other to perform and may well have paid for performance because of the other’s superior expertise. Nothing in the pleadings suggests that Pangalos and NIF had entered into anything other than an insurance transaction, and the motion to strike the fourth count is granted.
Finally, NIF seeks to strike the fifth count, sounding in negligent misrepresentation, on the ground that it is barred by the statute of limitations. It is true, as NIF argues, that the three-year provision of § 52-577 is the controlling limitation period and NW was served more than three years after the allegedly negligent statements were made. Pangalos claims, however, that the statute is tolled by the continuous course of conduct doctrine.
In the circumstances of this case, any action to strike is CT Page 15174 premature. The usual rule is that the defense that the action is barred by a statute of limitations is raised as a special defense; any tolling doctrine is raised by a reply. The situation presented by the complaint in this case is not so obvious that the usual pleading regimen should be obviated. The motion to strike is denied as to the fifth count. CT Page 15175