Polish Falcon Alliance v. Allen Tire, No. Cv 91-0445278s (Feb. 11, 1992) , 1992 Conn. Super. Ct. 1234 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO STRIKE The defendant John Daversa was the operator of an automobile owned by the defendant Allen Tire Battery Service Inc. when he negligently caused such vehicle to collide with a building owned by the plaintiff Polish Falcon Alliance. This building was damaged and repairs made on the building amounted to a cost of $3700.00. This action is brought both by Polish Falcon and its insurer against both Daversa and Allen Tire and Battery Service Inc.

The defendant Allen Tire Battery has moved to strike the first count of the complaint brought by Polish Falcon Alliance. The defendant claims that the insured cannot pursue a claim against the defendant while the insurer is also pursuing such a claim. "A motion to strike challenges the legal sufficiency of a pleading." Mingachos v. CBS, Inc., 196 Conn. 91,108 (1985). "In ruling on a motion to strike the court is limited to the facts alleged in the challenged pleading." King I v. Board of Education, 195 Conn. 90, 93 (1985). The motion admits all facts well pleaded, but does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541,545 (1980). "The allegations of the complaint are construed in a manner most favorable to the plaintiff." Verdon v. Transamerica Insurance Co., 187 Conn. 363, 365 (1982).

The flaw in the defendant's argument is its assumption that the plaintiff insurer has been fully subrogated to the rights of CT Page 1235 the insured. However, the complaint explicitly states that there is a $1,000.00 deductible on the policy. "[T]he insurer, upon paying to the insured the amount of loss, total or partial, becomes . . . subrogated in a corresponding amount to the insured's right of action against the person responsible for the loss." Hartford Accident and Indemnity Co. v. Chung,37 Conn. Super. Ct. 587, 590 (1981). (Emphasis added.)

Since there exists a $1,000.00 deductible on the policy, the plaintiff Polish Falcon Alliance is entitled to seek recovery directly from Allen Tire and Battery Inc. Such a cause of action is proper because the insurer has not been subrogated to the rights of the insured for the amount of the deductible.

Accordingly, the motion to strike is denied.

MICHAEL R. SHELDON JUDGE, SUPERIOR COURT CT Page 1236

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