LANGER v. NATIONWIDE MUTUAL INS. CO., No. CV02 0077564S (Mar. 1, 2004)

UPSON, JUDGE.

On March 21, 2002, the plaintiff, Frederick Langer, filed a two-count complaint against the defendants, Nationwide Mutual Insurance Company (Nationwide) and Theodore Hawks. The action arises out of injuries and resulting losses Langer allegedly sustained when his motor vehicle collided with that driven by Hawks. In count one, the plaintiff alleges negligence on the part of Hawks. The second count incorporates paragraphs one through seven of the first count and is directed at Nationwide, the plaintiff's automobile insurance provider; the plaintiff alleges that Nationwide failed to fairly and adequately compensate him under the uninsured motorist terms of the policy. He seeks damages from both defendants.

On July 11, 2002, Hawks filed an answer, a special defense, and a three-count cross claim against Nationwide. Hawks alleges therein that, at the time of the accident, he also had an automobile insurance policy with Nationwide. In the first count, Hawks alleges that Nationwide breached its contract with him. In the second count, Hawks alleges that Nationwide failed to indemnify him to the extent of his policy's liability coverage. In the third count, he alleges unfair insurance practice on the part of Nationwide in violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815, et seq. Nationwide filed its answer and a special defense to the cross claim on September 18, 2002.

On October 10, 2002, Nationwide filed a motion to strike count three, the CUIPA claim, of Hawks' cross claim. The court, Lager, J., denied the motion on November 12, 2002, because, in accordance with Practice Book § 10-7, Nationwide waived its right to file a motion to strike when it filed its answer on September CT Page 3424 18, 2002. On July 31, 2003, Hawks filed an amendment to the cross claim. The amendment simply adds a fourth count in which Hawks alleges unfair and deceptive trade practice by Nationwide in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a, et seq.

Nationwide filed a motion to strike the third and fourth counts of Hawks' amended cross claim on September 3, 2003, accompanied by a memorandum of law in support. On October 3, 2003, Hawks filed a memorandum of law in opposition.

"The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "A motion to strike [also] may be filed when a party wishes to contest the legal sufficiency of the allegations of a . . . cross-claim." Rotini v. Scinto, Superior Court, judicial district of Fairfield, Docket No. CV 01 0381052 (January 14, 2003, Wolven, J.).

"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). The role of the trial court in ruling on a motion to strike is "to examine the [pleading], construed in favor of the [nonmovant], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

Nationwide moves to strike counts three and four of Hawks' cross claim on the ground that neither count states a claim upon which relief can be granted. Before addressing the substantive merits of the parties' arguments, however, the court will first review the procedural standards for filing an amended pleading. "Although pleadings cannot generally be filed out of order . . . a party may amend a previously filed pleading . . . When an CT Page 3425 amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment . . ." (Citations omitted.) Wilson v. Hryniewicz, 38 Conn. App. 715, 718-19, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). "`When any pleading is amended the adverse party may plead thereto within the time provided by [Practice Book] section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe . . .' (Emphasis added.) Practice Book § 10-61." Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn. App. 251, 272, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).

Here, Hawks filed the amended cross claim on July 31, 2003, and Nationwide filed its motion to strike on September 3, 2003. Because the amended cross claim operates as a waiver of the original cross claim, under § 10-61 of the Practice Book, Nationwide had ten days within which it was procedurally proper to file its motion to strike. Even under a liberal construction of § 10-61, pursuant to § 10-8 of the Practice Book, Nationwide had to have filed its motion to strike no later than September 2, 2003. Therefore, Nationwide's motion is untimely on its face.

"It is well established that the court has discretion as to whether it will consider the merits of an untimely motion. [A]lthough a motion to strike may appear untimely on its face, the court has discretion to permit a late pleading where the parties have both submitted arguments on the merits." (Internal quotation marks omitted.) Esdaile v. Hill Health Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 022262401 (November 6, 2001, Booth, J.); see also Scap Motors, Inc. v. Pevco Systems International, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0348461 (August 12, 1999, Melville, J.) (25 Conn L. Rptr. 283) (court overlooked fifteen-day lapse between filing of pleading and motion to strike where parties fully briefed the merits of the motion); Lawrence v. Commodore Commons Condominium Assn., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 98063281 (September 8, 2000, Curran, J.) ( 28 Conn.L.Rptr. 56) (court overlooked fourteen-day lapse between filing of pleading and motion to strike where parties CT Page 3426 fully briefed the merits of the motion). Here, because the parties have advanced substantive arguments on the motion to strike, in the interest of judicial economy, the court exercises its discretion to overlook, in part, the untimeliness of the motion.

Turning to the substantive arguments, in support of its motion, Nationwide argues that count three, the CUIPA claim, should be stricken because case law on the subject has repeatedly directed that CUIPA was enacted to regulate the "general business practices" of the insurance industry and not single acts of an insurer. Here, because only a single act of insurer misconduct is alleged, Nationwide argues that CUIPA is inapplicable, even if the misconduct is true, based on the majority of courts' interpretation of the legislation.

Hawks counters that Nationwide failed to reveal in its present motion that a previous motion to strike the third count was denied by the court, Lager, J., on November 12, 2002, for pleading out of order in violation of § 10-7 of the Practice Book. Thus, based on the "law of the case" doctrine, Hawks argues that the present motion to strike count three of his cross claim should also be denied on the same ground because this count was not amended.

Because the court previously denied Nationwide's motion to strike based on a procedural ground, it does not seem fair or equitable to consider the merits of its argument where, once again, the motion is untimely. This is especially so because Hawks has merely incorporated count three of his original cross claim into the amended cross claim and not altered the allegations contained therein. Consequently, based on the court's discretion, Nationwide's motion to strike count three should be denied.

In support of its motion to strike count four of Hawks' amended cross claim, Nationwide contends that the court should follow Lees v. Middlesex Insurance Company, 229 Conn. 842, 643 A.2d 1282 (1994), wherein our Supreme Court held "that a CUTPA claim based on the public policy embodied in CUIPA must be consistent with the regulatory principles established therein, and that the definition of unacceptable insurer conduct . . . reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention." CT Page 3427 (Internal quotation marks omitted.) Id., 850-51. Specifically, Nationwide argues that Hawks' allegations do not amount to a general business practice on its part and, therefore, are insufficient to state a CUTPA claim.

Hawks counters that his allegations contained in count four implicate Nationwide's manner of billing and, consequently, amount to a general billing and cancellation practice that constitutes an unfair and deceptive trade practice in violation of CUTPA, as opposed to a single violative act. Therefore, Hawks argues, the count is legally sufficient.

"[I]n determining whether a practice violates CUTPA [our Supreme Court] ha[s] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether 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 businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." (Brackets in original; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002). The Court has also held, however, that while "it is possible to state a cause of action under CUTPA for a violation of CUIPA . . ."; Mend v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986); a plaintiff may not pursue a CUTPA violation for a singular violative act. Id., 664.

In the present case, Hawks' allegations in the third count may amount to a general business practice on the part of Nationwide. In that count, Hawks alleges that Nationwide's actions amounted to an unfair insurance practice. It is not clear, however, if he is referring simply to Nationwide's actions regarding his policy, or its categorical behavior. In the fourth count, Hawks alleges that Nationwide's manner of billing him and asserting cancellation was part of a wider billing practice that triggers the dual CUTPA and CUIPA regulatory protections. Although the fourth count could not survive without the companion CUIPA count, should not be stricken. Because the sufficiency of the third count implicating CUIPA has not been determined on its merits, CT Page 3428 the court must construe the allegations contained in the fourth count in favor of Hawks, including facts necessarily implied from the allegations.

For the foregoing reasons, the court denies Nationwide's motion to strike as to both counts three and four of Hawks' amended cross claim because the allegations contained therein are legally sufficient.

The Court

By Upson, Judge.