Harrigan v. Fidelity National Title Ins. Co.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
PAUL HARRIGAN v. FIDELITY NATIONAL TITLE
INSURANCE COMPANY
(AC 44424)
Alvord, Alexander and Vertefeuille, Js.
Syllabus
The plaintiff property owner sought to recover damages from the defendant
title insurance company for an alleged violation of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.), based on a
violation of the Connecticut Unfair Insurance Practices Act (CUIPA)
(§ 38a-815 et seq.), in connection with a title insurance policy issued by
the defendant to the plaintiff. The plaintiff brought the present action
after protracted negotiations between the parties regarding the value
of the plaintiff’s claim as to a disputed property title. The plaintiff alleged
that the defendant engaged in unfair and deceptive acts or practices in
its administration of the policy and in its handling of the plaintiff’s claim.
Following a trial, the trial court found that the plaintiff had failed to
demonstrate any unfair claim settlement practices under CUIPA by the
defendant. On appeal, the plaintiff claimed, inter alia, that the evidence
he presented at trial established that the defendant’s unfair practices
in failing to acknowledge and act with reasonable promptness upon
communications with respect to his claim, in violation of the applicable
provision (§ 38a-816 (6) (B)) of CUIPA, were part of a general business
practice by the defendant, as required under § 38a-816 (6). Held that
the trial court correctly rendered judgment in favor of the defendant with
respect to the CUTPA claim, as the plaintiff, having failed to establish a
general business practice of delaying communications by the defendant,
failed to set forth a valid CUIPA claim, which was fatal to the plaintiff’s
CUTPA claim: the evidence presented by the plaintiff did not establish
the existence of a general business practice by the defendant for pur-
poses of § 38a-816 (6), as the cases relied on by the plaintiff to show a
general business practice were factually distinguishable and had ques-
tionable evidentiary value in light of their differences, and the plaintiff
failed to present any testimony or other documentary evidence relating
to the alleged business practice of the defendant; moreover, the delays
in the plaintiff’s case were caused by both the plaintiff and the defendant,
and, although some delays resulted from corporate inefficiencies and
mismanagement by the defendant, a fair portion of the delays in the
present case were due, in part, to other causes, including the plaintiff’s
own delayed responses to communications and his insistence on receiv-
ing compensation for the potential relocation of a replacement septic
system, an issue that prolonged the negotiations and that the court
ultimately found to be of tenuous relevance to the diminution in value
of the property.
Argued February 3—officially released September 6, 2022
Procedural History
Action to recover damages for, inter alia, a violation
of the Connecticut Unfair Trade Practices Act, based
on a violation of the Connecticut Unfair Insurance Prac-
tices Act, in connection with a title insurance policy
issued by the defendant to the plaintiff, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven and tried to the court, Abrams, J.;
judgment for the defendant, from which the plaintiff
appealed to this court. Affirmed.
Edward M. Schenkel, for the appellant (plaintiff).
Frank B. Velardi, Jr., for the appellee (defendant).
Opinion
VERTEFEUILLE, J. The plaintiff, Paul Harrigan,
appeals from the judgment of the trial court, following
a bench trial, rendered in part in favor of the defendant,
Fidelity National Title Insurance Company, in connec-
tion with a title insurance policy (title policy) issued
by the defendant to the plaintiff. On appeal, the plaintiff
challenges the judgment in favor of the defendant only
with respect to count two of the operative complaint,
the third revised complaint, which alleges that the
defendant’s conduct in handling an insurance claim
filed by the plaintiff pursuant to the title policy violated
the Connecticut Unfair Insurance Practices Act
(CUIPA); General Statutes § 38a-815 et seq.; and that
such unfair and deceptive acts or practices of the defen-
dant thereby violated the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq. Specifically, the plaintiff claims on appeal that (1)
the court applied an incorrect standard in its analysis
of whether the defendant violated CUIPA by requiring
a finding of common-law bad faith by the defendant for
the plaintiff to establish a violation of CUIPA, (2) when
the proper standard is applied, the record sufficiently
demonstrates that the defendant violated the relevant
provisions of CUIPA, and (3) the evidence submitted
by the plaintiff establishes that the defendant’s unfair
practices were part of a general business practice, as
required under General Statutes § 38a-816 (6).1 We
affirm the judgment of the court, albeit on different
grounds.
The court found the following facts in its memoran-
dum of decision: ‘‘The plaintiff . . . is the owner of a
1.52 acre piece of residential property known as 27
Brook Road . . . in Woodbridge . . . . The western
boundary of [the plaintiff’s] . . . property abuts a piece
of residential property known as 25 Brook Road. . . .
The aforementioned properties known as 25 Brook
Road and 27 Brook Road were once one parcel . . . .
On September 29, 1969, Helen Greene transferred the
properties to James [Weir] and Margery Weir. . . . On
March 6, 1979, James Weir quitclaimed his interest in
the properties to Margery Weir. . . . In 1998, Margery
Weir subdivided the properties into parcels of relatively
equal size and transferred the 25 Brook Road parcel to
Woodbridge Country Homes. She retained ownership
of the 27 Brook Road parcel. . . .
‘‘The aforementioned transfer of the 25 Brook Road
parcel from Margery Weir to Woodbridge Country
Homes included an area approximately 0.2 acres . . .
in size that runs along the boundary between the 25
Brook Road and 27 Brook Road properties and is
shaped like a long, thin football . . . [disputed area].
This area is undeveloped, featuring trees and brush.
. . . By warranty deed dated August 18, 1999, Wood-
bridge Country Homes transferred the 25 Brook Road
property, including the disputed area, to Ron [Nudel]
and Debra Nudel. . . . By warranty deed dated July
23, 2008, Margery Weir transferred the 27 Brook Road
property to [the plaintiff] . . . in this matter. The war-
ranty deed’s description of the 27 Brook [Road] proper-
ty’s boundary with the 25 Brook Road property lacks
clarity, making it unclear whether the deed purports to
transfer the disputed area to [the plaintiff]. . . .
‘‘At the time of [the plaintiff’s] purchase of the 27
Brook Road property, he was under a good faith belief
that his purchase included the disputed area. . . . As
part of the foregoing transfer, [the defendant] . . .
issued [an] owner’s title insurance policy . . . to [the
plaintiff] in relation to his ownership interest in the 27
Brook Road property. . . . [The plaintiff] purchased
the 27 Brook Road property with the intention of reno-
vating and expanding the existing house on the property
and then selling it. . . . In furtherance of [his] efforts
to improve the existing house on the property, [the
plaintiff] commissioned a survey that resulted in the
creation of a site plan dated March 26, 2009. . . . Upon
reviewing the site plan, [the plaintiff] first recognized
that a potential issue existed regarding ownership of
the disputed area, but he continued to possess a good
faith belief that he held title to the area. . . .
‘‘[The plaintiff] eventually completed a renovation
that nearly doubled the size of the existing house on
the 27 Brook Road property. He entered into a listing
agreement with Coldwell Banker on May 20, 2011, mar-
keting the property for $1.2 million . . . . During the
period when [the plaintiff] had the 27 Brook Road prop-
erty on the market, he contacted James Nugent, the
attorney who represented him when he purchased the
property, and inquired about whether issues regarding
ownership of the disputed area could potentially inter-
fere with a closing were he to secure a buyer. . . .
‘‘Sometime in the late fall of 2011, [the plaintiff] con-
clusively learned that he did not, in fact, hold title to the
disputed area. . . . By letter to [the defendant] dated
December 3, 2011, [the plaintiff] made a claim upon his
title insurance policy regarding the disputed area. . . .
[The defendant] initially assigned Senior Claims Coun-
sel Jeffrey Hansen to handle [the plaintiff’s] claim. . . .
By letter to [the plaintiff] dated January 5, 2012, [the
defendant] acknowledged receipt of his claim. . . . By
letter to [the plaintiff] dated February 3, 2012, [the
defendant] essentially accepted his claim. At no time
during the subsequent protracted negotiations between
the parties regarding [the plaintiff’s] claim did [the
defendant] indicate any unwillingness to pay the claim.
Rather, the issue between the parties always involved
the claim’s value. . . .
‘‘[The defendant] subsequently decided to commis-
sion an appraisal designed to yield a figure representing
the diminution in value of [the plaintiff’s] property as
a result of the loss of the disputed area. . . . Subse-
quent to [the defendant’s] decision to commission the
appraisal, its personnel engaged in internal discussions
regarding what date should be considered the date of
loss upon which the diminution in value figure should
be based. They attempted to reach out to [the plaintiff]
regarding the issue without apparent success. . . .
There is no evidence that [the defendant] actively pur-
sued the possibility of purchasing the disputed area
from the owners of 25 Brook Road. . . .
‘‘The appraisal commissioned by [the defendant]
eventually issued on June 5, 2012. It was prepared by
Barbara Pape . . . [Pape appraisal] and quantified the
property’s [diminution in] value by virtue of the loss of
the disputed area as $17,500, assigning the property a
value of $332,000 with the disputed area and $314,500
without it. At [the defendant’s] direction . . . Pape
used March 26, 2009, as the date of loss, which was the
date the plaintiff first recognized that a potential issue
existed regarding ownership of the disputed area based
on his review of the aforementioned site plan. . . .
‘‘On July 6, 2012, [the defendant] forwarded to [the
plaintiff] a copy of the Pape appraisal, together with a
check in the amount of $17,500. Apparent difficulties
arose surrounding delivery of the appraisal and the
check, so [the plaintiff] did not receive them until sev-
eral weeks later. . . . By letter to [the defendant] dated
September 7, 2012, [the plaintiff] took exception, in
great detail, to the methods . . . Pape employed in
arriving at the [diminution in] value figure in her
appraisal. . . . By letter dated October 10, 2012 . . .
Pape responded to some of the concerns regarding her
appraisal that [the plaintiff] raised in his September 7,
2012 letter. [The defendant] did not forward . . .
Pape’s letter to [the plaintiff] until December 22, 2012.
. . . Over the next few months, the parties exchanged
frequent correspondence in an attempt to reach an
agreement regarding the [diminution in] value of the
property. . . . One of [the plaintiff’s] major concerns
during this period was the alleged impact that the loss
of the disputed area had on the property’s septic system.
While the evidence indicates that the [septic] system is
not located in the disputed area, [the plaintiff] repeat-
edly expressed concern that the disputed area is the
location where a replacement system could be most
economically located in the event the current system
needs to be replaced. . . .
‘‘By letter dated March 13, 2013, [the defendant]
informed [the plaintiff] that [it was] reassigning respon-
sibility for his claim to Assistant Claims Counsel Cas-
sandra Dorr. . . . By letter dated April 29, 2014, [the
defendant] offered [the plaintiff] $29,500 to resolve his
claim. . . . By email dated June 26, 2014, [the defen-
dant] offered [the plaintiff] an additional $500. . . . At
some point prior to February 4, 2015, [the plaintiff]
made a demand of $73,456 to resolve his claim. . . .
In May, 2015, [the plaintiff] retained appraiser Charles
Liberti to perform a diminution in value appraisal on
the property. Around the same time, [the plaintiff] also
retained Attorney Max Case to represent him [with]
regard to his claim. . . .
‘‘Liberti produced an appraisal dated February 10,
2016 . . . [Liberti appraisal], which quantified the
property’s [diminution in] value as $92,000 by virtue of
the loss of the disputed area, assigning the property a
value of $920,000 with the disputed area and $828,000
without it. At [the plaintiff’s] direction . . . Liberti
used December 3, 2011, as the date of loss, which was
the date the plaintiff indicates that he conclusively
learned that he did not own the disputed area and made
his claim to [the defendant]. . . . Liberti did not factor
in any issues regarding the septic system in arriving at
the $92,000 [diminution in] value figure. He attributed
the vast difference in the property values between the
appraisals almost entirely to the significant improve-
ments [the plaintiff] made to the property between the
different dates of loss. . . .
‘‘By letter dated March 21, 2016 . . . Case forwarded
the Liberti appraisal to [the defendant] along with a
demand of $92,000 to resolve the claim. . . . Not long
thereafter, [the defendant] reassigned responsibility for
[the plaintiff’s] claim to Associate Claims Counsel Victo-
ria Mack. . . . Between March . . . and November,
2016 . . . Case made repeated efforts to get [the defen-
dant] to respond to . . . Liberti’s appraisal and the
accompanying $92,000 demand. . . . By email dated
November 9, 2016, from . . . Mack to . . . Case, she
informed him that part of the cause of [the defendant’s]
delay in responding was that the appraiser assigned to
conduct a review of the Liberti appraisal had mistakenly
reviewed, and found fault with, the Pape appraisal
instead. . . . Subsequent correspondence reveals that
[the defendant] concluded that there were problems
with both the Pape appraisal and the Liberti appraisal.
As a result, it commissioned a third appraisal performed
by Robert Marsele. . . . By letter dated December 2,
2016, [the defendant] informed [the plaintiff] that it
had reassigned responsibility for his claim to Associate
Claims Counsel Robert Fregosi. . . .
‘‘On February 13, 2017 . . . Marsele produced an
appraisal that quantified the property’s [diminution in]
value as $25,000 by virtue of the loss of the disputed
area, assigning the property a value of $335,000 with
the disputed area and $310,000 without it. At [the defen-
dant’s] direction . . . Marsele used March 26, 2009, as
the date of loss, which was the date the plaintiff first
recognized that a potential issue existed regarding own-
ership of the disputed area based on his review of the
aforementioned site plan. . . .
‘‘By letter from . . . Fregosi to . . . Case dated
March 14, 2017, [the defendant] offered $31,000 to settle
the claim and took issue with the December 3, 2011
date of loss contained in the Liberti appraisal. . . . By
letter from . . . Case to . . . Fregosi dated April 24,
2017, [the plaintiff] renewed his demand of $92,000 and
took issue with the March 26, 2009 date of loss con-
tained in the Pape and Marsele appraisals. . . . By
email from . . . Fregosi to . . . Case dated June 5,
2017, [the defendant] offered $40,000 to settle the claim.
. . . By letter from . . . Fregosi to . . . Case dated
August 7, 2017, [the defendant] offered $50,000 to settle
the claim. . . . By letter from . . . Case to . . . Freg-
osi dated August 24, 2017, [the plaintiff] lowered his
demand. It is unclear from the letter whether the new
demand was $77,000 or $87,000. Regardless . . . Freg-
osi refused the demand by email to . . . Case dated
October 2, 2017. . . . The plaintiff brought this [action]
against [the defendant] by complaint dated November
13, 2017.’’
In a third revised complaint, the plaintiff alleges four
counts against the defendant. The second count, which
alleges a violation of CUTPA, is the only count at issue
in this appeal.2 In count two, the plaintiff alleges that
‘‘[t]he defendant is involved in the trade or commerce
of [providing] title insurance coverage to individuals
and entities who hold title to real property’’ and that
‘‘[t]he defendant engaged in unfair and deceptive acts
or practices in its administration of the [title] policy
and handling of the plaintiff’s claim . . . in violation
of . . . [CUIPA] . . . .’’ The defendant’s alleged unfair
and deceptive acts included, but were not limited to,
the following: ‘‘(a) misrepresenting pertinent facts and
policy provisions relating to the coverage at issue, in
violation of . . . § 38a-816 (6) (A); (b) failing to
acknowledge and act with reasonable promptness upon
the plaintiff’s initiation of the claim, in violation of . . .
§ 38a-816 (6) (B); (c) refusing to pay the claim without
conducting a reasonable investigation based upon all
available information, in violation of . . . § 38a-816 (6)
(D); (d) not attempting in good faith to effectuate a
prompt, fair and equitable settlement of the claim,
where liability is clear, in violation of . . . § 38a-816
(6) (F); and (e) failing to promptly provide a reasonable
explanation of the basis in the [title] policy for denial
of the claim, in violation of . . . § 38a-816 (6) (N).’’ The
plaintiff further alleges in count two that the defendant
‘‘engaged in similar unfair and deceptive conduct on
numerous other occasions,’’ in violation of CUIPA, and
that such conduct ‘‘was committed and performed with
such frequency as to indicate a general business prac-
tice of the defendant . . . .’’
The matter was tried to the court, which rendered
judgment in part3 in favor of the defendant with respect
to counts two, three and four of the third revised com-
plaint. With respect to count two, the court concluded
that the plaintiff had failed to demonstrate any unfair
claim settlement practices under CUIPA by the defen-
dant. The plaintiff thereafter filed this appeal challeng-
ing the judgment only with respect to count two. Addi-
tional facts and procedural history will be set forth as
necessary.
On appeal, the plaintiff argues that (1) the court
applied an incorrect standard in its analysis of whether
the defendant violated CUIPA by requiring the plaintiff
to prove common-law bad faith by the defendant to
establish a violation of CUIPA, (2) when the proper
standard is applied, the record sufficiently demon-
strates that the defendant violated the relevant provi-
sions of CUIPA, and (3) the evidence submitted by the
plaintiff establishes that the defendant’s unfair prac-
tices were part of a general business practice, as
required under § 38a-816 (6). Although the plaintiff has
raised three claims on appeal, we address the third
claim only, as its resolution is dispositive of this appeal.
Before addressing the merits of this claim, we set
forth general principles governing CUIPA claims and
our standard of review. ‘‘CUTPA is, on its face, a reme-
dial statute that broadly prohibits unfair methods of
competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce. . . . To give
effect to its provisions, [General Statutes §] 42-110g
(a) of [CUTPA] establishes a private cause of action,
available to [a]ny person who suffers any ascertainable
loss of money or property, real or personal, as a result
of the use or employment of a method, act or practice
prohibited by [General Statutes §] 42-110b . . . .
CUIPA, which specifically prohibits unfair business
practices in the insurance industry and defines what
constitutes such practices in that industry; see General
Statutes § 38a-816; does not authorize a private right of
action but, instead, empowers the [insurance] commis-
sioner to enforce its provisions through administrative
action. See General Statutes §§ 38a-817 and 38a-818.
. . . [Our Supreme Court, however, has] determined
that individuals may bring an action under CUTPA for
violations of CUIPA. In order to sustain a CUIPA cause
of action under CUTPA, a plaintiff must allege conduct
that is proscribed by CUIPA.’’ (Internal quotation marks
omitted.) Dorfman v. Smith, 342 Conn. 582, 614, 271
A.3d 53 (2022). ‘‘[I]f a plaintiff brings a claim pursuant
to CUIPA alleging an unfair insurance practice, and
the plaintiff further claims that the CUIPA violation
constituted a CUTPA violation, the failure of the CUIPA
violation is fatal to the CUTPA claim.’’ State v. Acordia,
Inc., 310 Conn. 1, 31, 73 A.3d 711 (2013); see also Artie’s
Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn.
602, 624, 119 A.3d 1139 (2015) (‘‘a plaintiff cannot bring
a CUTPA claim alleging an unfair insurance practice
unless the practice violates CUIPA’’).
Section 38a-816 (6) of CUIPA prohibits unfair claim
settlement practices, which are defined in relevant part
as ‘‘[c]ommitting or performing with such frequency
as to indicate a general business practice any of the
following: (A) Misrepresenting pertinent facts or insur-
ance policy provisions relating to coverages at issue;
(B) failing to acknowledge and act with reasonable
promptness upon communications with respect to
claims arising under insurance policies . . . (D) refus-
ing to pay claims without conducting a reasonable
investigation based upon all available information . . .
(F) not attempting in good faith to effectuate prompt,
fair and equitable settlements of claims in which liability
has become reasonably clear; [and] . . . (N) failing to
promptly provide a reasonable explanation of the basis
in the insurance policy in relation to the facts or applica-
ble law for denial of a claim or for the offer of a compro-
mise settlement . . . .’’ The issue of whether the evi-
dence presented demonstrates that the insurer engaged
in unfair settlement practices with such frequency as
to indicate a general business practice involves a ques-
tion of law over which we exercise plenary review.4
See generally Lees v. Middlesex Ins. Co., 229 Conn.
842, 847, 643 A.2d 1282 (1994) (affirming trial court’s
determination on motion for summary judgment, as
matter of law, that undisputed evidence did not demon-
strate general business practice by defendant); see also
Volpe v. Paul Revere Life Ins. Co., Docket No. 3:98-CV-
972 (CFD), 2001 WL 1011955, *2 (D. Conn. August 29,
2001) (evidence presented was insufficient as matter
of law to demonstrate general business practice). We
are also mindful that ‘‘[t]he scope of our appellate
review depends [on] the proper characterization of the
rulings made by the trial court. To the extent that the
trial court has made findings of fact, our review is lim-
ited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) State v.
Acordia, Inc., supra, 310 Conn. 15–16.
I
In order for this court to reach the merits of whether
the evidence establishes a general business practice by
the defendant, we first must address two preliminary
issues: (1) which provisions of CUIPA are at issue in
this appeal, and (2) what evidence was appropriately
before the court as to whether a general business prac-
tice has been established.
A
With respect to the first issue, we first note that count
two of the third revised complaint alleges violations by
the defendant of subdivisions (A), (B), (D), (F), and
(N) of § 38a-816 (6). The court, after referencing those
same allegations in its memorandum of decision,5
stated: ‘‘It must be kept in mind that the issue in this
case is not [the defendant’s] denial of [the plaintiff’s]
claim, which is frequently the issue in CUIPA cases. The
facts indicate that [the defendant] essentially accepted
[the plaintiff’s] claim not long after receiving his
demand letter. The only issue during the protracted
negotiations between the parties in this matter was the
value of [the plaintiff’s] claim, not its legitimacy, and,
as a result, the value of the claim is the only issue before
the court. As a result, the court finds, based on the
evidence presented at trial, that the only CUIPA viola-
tions cited by the plaintiff that could potentially apply
in this case are the claim[s] that [the defendant] failed
to acknowledge and act with reasonable promptness
upon communications with respect to [the plaintiff’s]
claim [in violation of § 38a-816 (6) (B)], and that [the
defendant] did not attempt in good faith to effectuate
prompt, fair and equitable settlement of [the plaintiff’s]
claim [in violation of § 38a-816 (6) (F)].’’ (Emphasis
added; footnote omitted.)
On appeal, the defendant argues that the plaintiff has
not challenged the court’s finding that only subdivisions
(B) and (F) of § 38a-816 (6) potentially could apply to
this case and that the finding is not clearly erroneous.
Although the plaintiff has not specifically challenged
the court’s finding, such a challenge could be implied
from the plaintiff’s arguments on appeal that the evi-
dence presented establishes violations of other provi-
sions of CUIPA. Thus, we must examine the record to
determine whether it supports the court’s finding.
‘‘If the factual basis of a trial court’s decision is chal-
lenged, the clearly erroneous standard of review
applies. . . . While conducting our review, we prop-
erly afford the court’s findings a great deal of deference
because it is in the unique [position] to view the evi-
dence presented in a totality of circumstances . . . .
A court’s determination is clearly erroneous only in
cases in which the record contains no evidence to sup-
port it, or in cases in which there is evidence, but the
reviewing court is left with the definite and firm convic-
tion that a mistake has been made. . . . The legal con-
clusions of the trial court will stand, however, only if
they are legally and logically correct and are consistent
with the facts of the case.’’ (Citations omitted; internal
quotation marks omitted.) Li v. Yaggi, 212 Conn. App.
722, 731, A.3d (2022).
At trial, the plaintiff submitted forty-three exhibits
into evidence. A large portion of those exhibits consists
of copies of email communications between the plaintiff
or his attorney and representatives of the defendant,
and their subjects cover many topics, including settle-
ment offers, the date of loss, requests for updates
regarding the status of the plaintiff’s claim, issues
regarding the septic system and appraisals that were
performed, and estimates for work relating to the septic,
driveway, and landscape. A number of witnesses also
testified at the trial, including the plaintiff; Cynthia
Baines, a senior claims counsel for the defendant who
explained the steps taken in handling the plaintiff’s
claim and testified regarding the communications in
the exhibits; owners of various businesses relating to
excavating, driveways, trees, and landscaping; the three
appraisers; and Robert P. Pryor, a professional engineer
and land surveyor.
On the basis of our careful review of that evidence
and testimony, there was no evidence presented that
could have supported a finding that the defendant vio-
lated subdivision (D) of § 38a-816 (6)—‘‘refusing to pay
claims without conducting a reasonable investigation
based upon all available information’’—or subdivision
(N)—‘‘failing to promptly provide a reasonable explana-
tion of the basis in the insurance policy in relation to
the facts or applicable law for denial of a claim or for the
offer of a compromise settlement’’—as the defendant
neither refused to pay nor denied the claim. Indeed,
the court specifically found that the primary issue in
the case ‘‘was the value of [the plaintiff’s] claim, not
its legitimacy,’’ that at no time did the defendant ‘‘indi-
cate any unwillingness to pay the claim,’’ and that the
defendant never denied the claim and, in fact, ‘‘essen-
tially accepted [the plaintiff’s] claim not long after
receiving his demand letter.’’
We similarly conclude that the evidence presented
by the plaintiff could not have supported a finding that
the defendant violated subdivision (A) of § 38a-816
(6)—‘‘[m]isrepresenting pertinent facts or insurance
policy provisions relating to coverages at issue . . . .’’
The evidence presented by the plaintiff, which shows
that the parties disagreed about various matters such
as the date of loss, the relocation of the septic system,
and the value of the plaintiff’s claim, simply does not
demonstrate any misrepresentations by the defendant,
nor did the court find any. In fact, the court specifically
found, on the basis of the testimony of Baines, whom
the court found to be credible, ‘‘that at no time during
the claims settlement process did [the defendant’s] per-
sonnel act in bad faith or come within close proximity
of doing so.’’ It is not for this court to second-guess
the credibility determinations of the trial court. See
Bayview Loan Servicing, LLC v. Gallant, 209 Conn.
App. 185, 193, 268 A.3d 119 (2021).
Moreover, the evidence presented shows numerous
communications between the plaintiff and representa-
tives of the defendant concerning the status of the plain-
tiff’s claim and why its resolution had been delayed for
more than five years, which could support a finding of
a violation of subdivisions (B) and (F) of § 38a-816 (6),
both of which relate to delays in communications and
settling the claim. We, therefore, conclude that the
court’s finding ‘‘that the only CUIPA violations cited by
the plaintiff6 that could potentially apply in this case’’
are the claims relating to subdivisions (B) and (F) of
§ 38a-816 (6) is not clearly erroneous. (Footnote added.)
Furthermore, in light of the court’s finding that the
defendant did not act in bad faith at any time during
the settlement process, which was based on the court’s
credibility assessment of the testimony of the defen-
dant’s claims counsel, Baines, there can be no violation
of § 38a-816 (6) (F), which requires a showing that the
defendant did not attempt ‘‘in good faith to effectuate
prompt, fair and equitable settlements’’ of the plaintiff’s
claim. The intrinsic component of bad faith in subdivi-
sion (F) precludes its applicability given the court’s
finding of no bad faith, the substance of which the
plaintiff has not challenged on appeal.7
Accordingly, we conclude that the only provision of
CUIPA relevant to this appeal is § 38a-816 (6) (B).
B
The following additional facts are relevant to the
second preliminary issue we must address, namely,
what evidence was appropriately before the court as
to whether a general business practice has been estab-
lished.
As stated previously in this opinion, in count two of
the third revised complaint the plaintiff alleges that
the defendant ‘‘engaged in similar unfair and deceptive
conduct on numerous other occasions,’’ in violation of
CUIPA, and that such conduct ‘‘was committed and
performed with such frequency as to indicate a general
business practice of the defendant . . . .’’ In support
of that allegation, the third revised complaint references
five complaints filed with the Insurance Department
(department) involving the defendant and cites Davis
v. Fidelity National Ins. Co., 32 Pa. D. & C.5th 179(2013) (Davis I), an adjudicated case from Pennsylvania
involving the defendant.
During the trial, the plaintiff sought to admit into
evidence exhibit 44, which consisted of the consumer
complaints filed with the department alleging unfair
insurance practices by the defendant that were refer-
enced in count two. The court denied admission of
exhibit 44 on the ground that it did not involve adjudi-
cated matters.8 Specifically, the court stated: ‘‘I have
good news and bad news for you. If they are unadjudi-
cated, I’m not letting them in. However, anything that’s
adjudicated, I . . . could take judicial notice of any-
thing that’s adjudicated. . . . You can give me a list of
cases countrywide where [the defendant] has been . . .
adjudicated having committed an unfair insurance prac-
tice. And I could take judicial notice of it.’’ (Emphasis
added.) The court thereafter admitted into evidence
exhibits 41, 42, and 43, all of which concerned the Davis
I case cited in count two.
On March 3, 2020, before trial resumed, the court
heard arguments from the parties concerning a motion
to dismiss filed by the defendant, in which the defendant
sought, inter alia, to dismiss count two on the ground
that, as a matter of law, the plaintiff had failed to estab-
lish a general business practice by the defendant, as
required by § 38a-816 (6). In his memorandum in opposi-
tion to the defendant’s motion to dismiss, the plaintiff
cited four instances in which the defendant allegedly
engaged in bad faith settlement practices similar to its
conduct in the present case (additional instances of
insurance misconduct). Copies of those materials were
attached as an exhibit to the plaintiff’s memorandum.9
At the hearing thereon on March 3, the defendant argued
that the only evidence admitted in support of the plain-
tiff’s claim of a general business practice by the defen-
dant was the Davis I case, that the court declined to
admit the other administrative matters handled by the
department, and that any new allegations raised by the
plaintiff should be excluded as a matter of law because
the plaintiff already had rested his case without making
a request for the court to take judicial notice of any
matters, and the defendant would be prejudiced if the
court considered any new evidence.
During argument, the parties addressed the addi-
tional instances of insurance misconduct cited by the
plaintiff in his memorandum in opposition to the motion
to dismiss, and the following colloquy transpired:
‘‘[The Plaintiff’s Counsel]: . . . And the court gave
us clear instruction on Thursday, you said if we come
back with more cases that demonstrate these—this
repetitive conduct, the court will take judicial notice
of those cases and they would come in. And that’s what
we did, Your Honor, over the weekend . . . [we] found
all of these . . . cases, four or five more cases.
‘‘So, we’ve . . . met [our] burden, it’s . . . there.
And I’m happy to give the court the citations to take
judicial notice. . . .
‘‘The Court: Haven’t they been submitted as the
exhibit?
‘‘[The Plaintiff’s Counsel]: Not yet, Your Honor, we
were going to give you . . . our instruction was to give
you citations and then the court would take . . .
notice. . . .
‘‘The Court: I think there’s an exhibit with cases. I
didn’t . . . look at it, I just—
‘‘[The Plaintiff’s Counsel]: No, there’s—Your Honor,
there’s one exhibit with . . . the case from Pennsylva-
nia.
‘‘The Court: Okay. . . . Let me—as a threshold, I
agree with you, I think I opened the door and allowed
you to do that. [The defendant’s counsel] may not agree,
but, I think I did. So . . . all right. Continue?
‘‘[The Plaintiff’s Counsel]: So, those are there, Your
Honor. . . . [The defendant’s counsel] . . . is free to
argue the relevance and the applicability of each one of
those cases. However, they do exist and are there. . . .
‘‘[The Defendant’s Counsel]: If I may, Your Honor,
prior to resting, I don’t believe there was any request
by the plaintiff to allow this court to consider post-
resting evidence. . . .
‘‘The Court: I—it’s my distinct recollection that I
invited him to do so . . . .’’
The court held off ruling on the motion to dismiss
at that time. Thereafter, it rendered judgment in favor
of the defendant with respect to count two, which obvi-
ated the need for the court to reach the issue of whether
the defendant’s actions were part of a general business
practice, as raised in the defendant’s motion to dismiss.
On appeal, the plaintiff argues that ‘‘the record is
clear that the trial court took judicial notice of the
[additional instances of insurance misconduct]’’ refer-
enced at the March 3, 2020 hearing and included in the
exhibit to the plaintiff’s memorandum in opposition to
the defendant’s motion to dismiss. The plaintiff further
asserts that, even if this court finds that the trial court
did not take judicial notice of the additional instances of
insurance misconduct, ‘‘this court may judicially notice
anything in the trial court’s file, including exhibits to
pleadings.’’ The defendant counters that there is no
evidence in the record demonstrating that the trial court
was asked to take judicial notice of those additional
instances of insurance misconduct, that it actually did
so, or that it ‘‘provided the mandated notice to the
parties and [an] opportunity to be heard.’’ The defen-
dant acknowledges the court’s statements that it may
have ‘‘invited’’ or ‘‘opened the door’’ to the additional
evidence but argues that, ‘‘[i]n the discussion that fol-
lowed, no request was made to submit these matters
as exhibits, nor for the trial court to take judicial notice
thereof. As such, these submissions are not evidence
upon which the [plaintiff] can rely and should be
afforded no consideration on whether a general busi-
ness practice has been established.’’
We conclude that it is unclear from the record
whether the court actually did take judicial notice of the
additional instances of insurance misconduct. Although
the court stated that it had ‘‘opened the door’’ to addi-
tional evidence, during that colloquy the plaintiff’s
counsel never made a request for the court to take
judicial notice of the additional instances of insurance
misconduct. The fact that the court previously had
stated to the plaintiff’s counsel that counsel could bring
other adjudicated cases to the court’s attention and that
the court could take judicial notice of them, there is
simply nothing in the record aside from the court’s
vague statements demonstrating that, once the addi-
tional instances of insurance misconduct were brought
to the court’s attention, it actually did take judicial
notice of them. Moreover, given that the court did not
decide the issue of whether the evidence established a
general business practice, it’s memorandum of decision
provides no guidance on this issue. Nevertheless, we
need not decide whether the court took judicial notice
of the additional instances of insurance misconduct
because, even if we consider them together with the
Davis I case,10 for the reasons that follow we conclude,
as a matter of law, that the plaintiff has failed to estab-
lish a general business practice by the defendant.
II
Having addressed those preliminary issues, we now
turn to the issue of whether the evidence presented
by the plaintiff establishes the existence of a general
business practice by the defendant for purposes of
§ 38a-816 (6). We conclude that it does not.
We first note that, in their appellate briefs, the parties
disagree as to whether the general business practice
requirement is a condition precedent that must first be
established or whether a plaintiff must first demon-
strate a violation of one or more of the enumerated
unfair settlement practices set forth in CUIPA. For
example, the defendant argues that ‘‘the trial court [can-
not] consider nor reach the issue of whether a CUIPA
violation exists unless [the plaintiff] has proven that
any alleged conduct of [the defendant] was committed
with such frequency to constitute a ‘general business
practice.’ ’’ The plaintiff counters that the initial step a
court must take concerning whether a defendant has
violated CUIPA ‘‘is to first determine whether a . . .
violation of CUIPA has been committed, not whether
a general business practice has been established.’’ We
need not delve into that issue because a necessary ele-
ment of a CUIPA claim is a finding of a general business
practice, without which the CUIPA claim fails. Because
§ 38a-816 (6) requires the plaintiff to demonstrate that
the defendant’s alleged unfair claim settlement prac-
tices occurred with ‘‘such frequency as to indicate a
general business practice,’’ a determination by this
court that the plaintiff has not met his statutory burden
will be fatal to his CUIPA claim and dispositive of this
appeal. Accordingly, for purposes of our analysis in this
section, we assume that the plaintiff has demonstrated
a violation of § 38a-816 (6) (B).
We next set forth general principles governing our
resolution of this issue. ‘‘In requiring proof that the
insurer has engaged in unfair claim settlement practices
‘with such frequency as to indicate a general business
practice,’ the legislature has manifested a clear intent
to exempt from coverage under CUIPA isolated
instances of insurer misconduct.’’ (Footnote omitted.)
Lees v. Middlesex Ins. Co., supra, 229 Conn. 849. Thus,
our Supreme Court has concluded ‘‘that claims of unfair
settlement practices under CUIPA require a showing
of more than a single act of insurance misconduct.’’
Mead v. Burns, 199 Conn. 651, 659, 509 A.2d 11 (1986);
see also Dorfman v. Smith, supra, 342 Conn. 615.
Because the term ‘‘general business practice’’ is not
defined in § 38a-816 (6), in Lees our Supreme Court
looked ‘‘to the common understanding of the words as
expressed in a dictionary. . . . ‘General’ is defined as
‘prevalent, usual [or] widespread’; Webster’s Third New
International Dictionary; and ‘practice’ means ‘[p]erfor-
mance or application habitually engaged in . . . [or]
repeated or customary action.’ Id.’’ (Citation omitted.)
Lees v. Middlesex Ins. Co., supra, 229 Conn. 849 n.8.
Thus, the court concluded that ‘‘the defendant’s alleged
improper conduct in the handling of a single insurance
claim, without any evidence of misconduct by the defen-
dant in the processing of any other claim, does not rise
to the level of a ‘general business practice’ as required
by § 38a-816 (6).’’ Id., 849.
‘‘Where [a] [p]laintiff relies on other lawsuits in which
those plaintiffs alleged similar conduct as [the] [p]lain-
tiff alleges here, the [c]ourt may draw an inference
that [the] [d]efendant engaged in that conduct with
the frequency necessary for a ‘business practice’ under
CUIPA.’’ Bilyard v. American Bankers Ins. Co. of Flor-
ida, Docket No. 3:20CV1059 (JBA), 2021 WL 4291173, *3
(D. Conn. September 21, 2021). ‘‘To determine whether
instances of insurance misconduct spanning different
cases and different parties are sufficiently related to
constitute a general business practice, courts . . .
have considered the following factors: [T]he degree of
similarity between the alleged unfair practices in other
instances and the practice allegedly harming the plain-
tiff; the degree of similarity between the insurance pol-
icy held by the plaintiff and the policies held by other
alleged victims of the defendant’s practices; the degree
of similarity between claims made under the plaintiff’s
policy and those made by other alleged victims under
their respective policies; and the degree to which the
defendant is related to other entities engaging in similar
practices.’’ (Internal quotation marks omitted.) Pre-
ferred Display, Inc. v. Great American Ins. Co. of New
York, 288 F. Supp. 3d 515, 528–29 (D. Conn. 2018).
Although those factors have been used by courts to
determine ‘‘whether a plaintiff has made facially plausi-
ble factual allegations of a general business practice’’
to survive a motion to dismiss under the federal rules
of procedure; Phillips v. State Farm Fire & Casualty
Co., Docket No. 3:19-CV-623 (AWT), 2020 WL 3105485,
*5 (D. Conn. February 28, 2020); they are equally appli-
cable to whether the evidence presented, as a matter
of law, establishes a general business practice by the
defendant. This is particularly true in a case such as
the present one, in which the plaintiff relies exclusively
on published judicial decisions as evidence of the gen-
eral business practice. In such a circumstance, we are
in as good a position as was the trial court to determine
whether, in light of the various factors courts have
applied, the prior judicial determinations provide suffi-
cient evidence of a general business practice.
Before we address the case cited in the third revised
complaint as evidence of a general business practice
of the defendant—Davis v. Fidelity National Ins. Co.,
supra, 32 Pa. D. & C.5th 179—we first address the addi-
tional instances of insurance misconduct relied on by
the plaintiff at the March 3, 2020 hearing to establish
a general business practice by the defendant, which
include Davis v. Fidelity National Title Ins. Co.,
Docket No. 672 MDA 2014, 2015 WL 7356286 (Pa. Super.
March 18, 2015) (Davis II); Fidelity National Title Ins.
Co. v. Matrix Financial Services Corp., 567 S.E.2d 96(Ga. App. 2002) (Matrix Financial); Official Order, Tex.
Commissioner of Ins. No. 2019-5951, In re Fidelity
National Title Ins. Co. (May 3, 2019) (Texas order); and
Santa Fe Valley Partners v. Fidelity National Title
Ins. Co., California Superior Court, Docket No. 638367
(August13, 1992) (Santa Fe). Although those additional
instances of insurance misconduct all involve Fidelity
National Title Insurance Company or its affiliates as a
party and claims pursuant to title policies issued by
Fidelity National Title Insurance Company, they have
little, if any, evidentiary value with respect to the issue
of a general business practice by the defendant in the
present case, as the claims involved therein are not
sufficiently similar to the one in the present case. See
Thomas v. Vigilant Ins. Co., Docket No. 3:21-CV-00211
(KAD), 2022 WL 844601, *8 (D. Conn. March 22, 2022)
(‘‘[p]rior instances of insurance misconduct offered to
demonstrate a general business practice must be suffi-
ciently similar to the allegations at issue to support
such a conclusion’’ (internal quotation marks omitted)).
Davis II is an appeal to the Superior Court of Pennsyl-
vania from the decision of the Court of Common Pleas
in Davis I. Davis II involves a challenge to the determi-
nation by the Court of Common Pleas of lost profits
and its award of punitive damages and addresses the
issue of the delays by the insurer only with respect to
the damages award. Davis v. Fidelity National Ins.
Co., supra, 2015 WL 7356286, *1, 4. It, thus, provides no
support whatsoever for a finding of a general business
practice of the defendant in relation to the facts of the
present case.
Likewise, Matrix Financial provides little help with
respect to this issue. That case involves an action
brought against the insurer for breach of a title insur-
ance contract and bad faith refusal to pay an insurance
claim. See Fidelity National Title Ins. Co. v. Matrix
Financial Services Corp., supra, 567 S.E.2d 97. The
Georgia Court of Appeals affirmed the summary judg-
ment rendered against the insurer with respect to a
claim that it had refused in bad faith to pay the title
insurance claim in violation of a Georgia statute, which
is not at issue in the present case. Id., 102. The issue
in Matrix Financial—a bad faith failure to pay an insur-
ance claim—is inapposite to the issue in the present
case of whether the defendant engaged in a general
business practice of failing to acknowledge and respond
to communications regarding an insurance claim with
reasonable promptness. Furthermore, unlike in Matrix
Financial, in the present case the court found that the
defendant did not engage in bad faith, a finding not
challenged by the plaintiff on appeal.
With respect to the Texas order, the insurer was
found to have violated a number of provisions of the
Texas Insurance Code in connection with a title policy
it had issued, including failing to close the transaction,
failing ‘‘to promptly investigate the validity of a title
defect not excepted or excluded from the policy,’’ and
failing ‘‘to accept, deny, or conditionally accept a claim
within [thirty] days or notify the insured of its inability
to do so . . . .’’ Official Order, Tex. Commissioner of
Ins. No. 2019-5951, supra, p. 4. Again, these findings
bear little weight on whether the defendant in the pres-
ent case, which from the outset accepted the claim, has
engaged in a general business practice of delays in
communicating regarding an insurance claim.
Finally, in Santa Fe the plaintiffs brought an action
for breach of contract, breach of the implied covenant
of good faith and fair dealing and negligent misrepresen-
tation in connection with a title policy issued by the
defendant insurer. Santa Fe Valley Partners v. Fidelity
National Title Ins. Co., California Superior Court,
Docket No. 638367, Complaint (August 16, 1991). As
part of their claim that the insurer had breached the
implied covenant of good faith and fair dealing, the
plaintiffs alleged that the insurer ‘‘fail[ed] to acknowl-
edge and act reasonably and promptly upon communi-
cations with respect to [the] [p]laintiffs’ claims,’’ a claim
similar to the one in the present case. Id., p. 11. The
matter was tried to a jury, which returned a verdict
in favor of the plaintiffs. Santa Fe Valley Partners v.
Fidelity National Title Ins. Co., supra, California Supe-
rior Court, Docket No. 638367. The verdict form reveals
that the jury in Santa Fe found that the insurer acted
unreasonably in handling the claim and that, with
respect to the claim for breach of the implied covenant
of good faith and fair dealing, it ‘‘acted with malice,
fraud, or oppression . . . .’’ Id. Those findings fail to
address the allegation relevant to the present case,
namely, whether the insurer failed to acknowledge or
act promptly with respect to communications regarding
the claim filed by the plaintiffs. The materials submitted
by the plaintiff in the present case include the allega-
tions made against the insurer in Santa Fe and a jury
verdict form; they do not show any substantive ruling
on whether the insurer was found to have committed
the particular alleged unfair settlement practice, espe-
cially when the count containing that claim included
numerous other allegations of misconduct by the
insurer. Allegations alone are not sufficient to demon-
strate a general business practice. See Moura v. Har-
leysville Preferred Ins. Co., Docket No. 3:18-cv-422
(VAB), 2019 WL 5298242, *9 (D. Conn. October 18, 2019).
Accordingly, we conclude that the additional instances
of insurance misconduct relied on by the plaintiff do
not demonstrate a general business practice of delays
by the defendant similar to the defendant’s conduct in
the present case.
We now address the case cited in the third revised
complaint on which the plaintiff also relies to establish
a general business practice by the defendant—Davis
v. Fidelity National Ins. Co., supra, 32 Pa. D. & C.5th
179. In that case, the plaintiff insureds (Davis plaintiffs)
brought an action against the defendant insurer for
bad faith and breach of contract arising out of a title
insurance policy issued by the insurer. Id., 181. The
Court of Common Pleas of Pennsylvania concluded that
‘‘there were several known legal duties and fiduciary
obligations recklessly disregarded by [the insurer],
namely unreasonable delay in adjusting and resolving
the claim [and] repeated violations of the Unfair Insur-
ance Practices Act . . . .’’ Id., 189. Of significance, the
court found that the insurer had violated 40 Pa. Stat.
and Cons. Stat. § 1171.5 (a) (10) (ii) (West 2006) by
‘‘failing to acknowledge and act promptly upon written
or oral communication with respect to claims arising
under insurance policies’’; id., 199; the language of
which is nearly identical to that of § 38a-816 (6) (B).
Although the court in Davis I found a similar unfair
settlement practice as the one at issue in the present
case, when the facts of Davis I are closely analyzed,
the differences between Davis I and the present case
become strikingly apparent.
In Davis I, the insurer did not deny coverage but,
rather, took twenty months to complete its investigation
and notify the Davis plaintiffs that the claim was cov-
ered under the policy, and subsequently delayed pay-
ment for three more years, extending an offer to settle
only after the action against it was commenced. Id.,
199–201. The court’s conclusion that the insurer had
violated 40 Pa. Stat. and Cons. Stat. § 1171.5 (a) (10)
(ii) (West 2006) was premised on its finding that the
insurer had ‘‘routinely ignored [the] [p]laintiffs, who
initiated repeated communications . . . with [the]
insurer over a period of years.’’ Id., 200–201. In fact,
the court referenced ‘‘a disturbing pattern of chronic
delay’’ by the insurer. Id., 193. Moreover, in finding bad
faith by the insurer, the court in Davis I found that the
insurer acted with a reckless indifference to the rights
of its insureds and in failing to resolve the claim during
the five year period, which was evidenced by communi-
cations in which it recognized that it had no reasonable
basis to continue to deny, by delay, the resolution of the
claim and that it knowingly had threatened a meritless
lawsuit as a way to delay resolution of the claim. Id., 194.
In contrast, in the present case, the court specifically
found that the defendant’s ‘‘actions in this case clearly
[did] not represent shining examples of sterling claims
management practices,’’ and that ‘‘the issues that arose
and the delay that resulted in this case were due, in no
small part, to [the plaintiff’s] unrealistic expectations
colliding with [the defendant’s] maddening corporate
inefficiency.’’ The court further explained: ‘‘[The defen-
dant’s] shortcomings in this regard include, but are not
limited to, the fact that four different claims counsel
handled [the plaintiff’s] claim in this matter, which was
pending for almost six years before he filed suit. There
was probably nothing more emblematic of [the defen-
dant’s] failings in this regard than when a report pro-
duced on [the defendant’s] behalf mistakenly attacked
the credibility of its own appraiser rather [than] [the
plaintiff’s] appraiser.’’
Furthermore, in the present case, a great deal of the
delay was attributable to the issue raised by the plaintiff
concerning the septic system, which the court found
not to be relevant to the diminution in value figure.
Specifically, the court stated: ‘‘As relates to the issue
of the septic system that occupied so much of the par-
ties’ time and energy, both during the prolonged negoti-
ations that culminated in this lawsuit and at trial, the
court is of the opinion that it has little to no relevance
to the [diminution in] value of the property. As a result,
in arriving at a [diminution in] value figure, the court
declines to consider [the plaintiff’s] claims that the dis-
puted area is the location where a replacement system
could be most economically located in the event the
current system needs to be replaced. While [the plain-
tiff’s] assertion may, in fact, be accurate, the court finds
the issue of the potential location of a new septic system
that may or may not be needed sometime in the future
to be of tenuous relevance to the [diminution in] value
of the property.’’
The delays in the present case, therefore, were caused
by both the plaintiff and the defendant and resulted, in
part, from corporate inefficiencies and mismanagement
of the defendant, whereas in Davis I, the insurer repeat-
edly ignored the Davis plaintiffs and its delays were
purposeful and resulted from a reckless indifference to
their claim and a bad faith motive to delay paying in
order ‘‘to find a cheaper way of escaping their liability
to settle [the] claim . . . .’’ Davis v. Fidelity National
Ins. Co., supra, 32 Pa. D. & C.5th 195. The evidence in
the present case does not support a finding that the
defendant ignored communications from the plaintiff.
In fact, the record shows numerous communications
by agents of the defendant with the plaintiff, who, at
times, took a great deal of time to respond. Baines
testified to one such communication from Dorr to the
plaintiff in February, 2015, in which she rejected a settle-
ment offer of the plaintiff, tendered a new offer to settle
from the defendant of $29,000, and requested that the
plaintiff respond within thirty days. The plaintiff, how-
ever, did not respond until eight months later in Octo-
ber, 2015. The degree of similarity of the facts support-
ing the finding of an unfair settlement practice in both
cases is lacking. Davis I, thus, does not provide support
in the present case to show a general business practice
of the defendant, which, as the court found, had less
than stellar management practices that resulted, at
times, in delayed communications regarding the plain-
tiff’s claim.
Moreover, even if we construe Davis I as providing
some support for the plaintiff’s claim that the defendant
had a general business practice of delaying communica-
tions, we conclude that the plaintiff, nevertheless, has
not met his burden of demonstrating such a general
business practice by the defendant. The plaintiff relies
heavily on the statement of our Supreme Court in Mead
‘‘that claims of unfair settlement practices under CUIPA
require a showing of more than a single act of insurance
misconduct.’’ Mead v. Burns, supra, 199 Conn. 659. We
do not construe that statement in Mead as standing for
the proposition that a plaintiff will necessarily meet his
or her statutory burden simply by including a citation
to at least one other decision in which the insurer has
been adjudicated to have committed a similar unfair
insurance settlement practice. Rather, we construe
Mead as clarifying the statutory requirement that the
unfair claim settlement practice be performed or com-
mitted ‘‘with such frequency as to indicate a general
business practice’’; General Statutes § 38a-816 (6); that
is to say, the words ‘‘with such frequency’’ indicate that
more than a single act of misconduct is required, but
that does not mean that a single additional act is suffi-
cient.11 Although no precise number of similar acts has
been set by the appellate courts of this state and we
decline to do so today,12 we conclude that such a deter-
mination must be made on the basis of the facts of each
case and an examination of the evidence presented.
See Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 165–66
(D. Conn. 2014) (‘‘It is clear that a plaintiff must show
more than a single act of insurance misconduct . . .
[or] isolated instances of unfair settlement practices in
order to successfully claim that the defendant has a
general business practice of unfairly resolving disputes.
. . . However, what constitutes a general business
practice and the frequency with which the plaintiff
needs to prove that the defendant has unfairly resolved
claims are far less clear.’’ (Citations omitted; internal
quotation marks omitted.)).
In the present case, the cases relied on by the plaintiff
to show a general business practice are factually distin-
guishable and have questionable evidentiary value in
light of their differences, and the plaintiff has failed to
present any testimony or other documentary evidence
relating to the alleged business practice of the defen-
dant. Also, the plaintiff is claiming a general business
practice of delays by the defendant, when a fair portion
of the delays in the present case were due, in part,
to other causes, including the plaintiff’s own delayed
responses to communications and his insistence on
receiving compensation for the potential relocation of
a replacement septic system, an issue that prolonged
the negotiations and that the court ultimately found to
be of tenuous relevance to the diminution in value of
the property. Under these circumstances, we cannot
find that the plaintiff has met his statutory burden under
§ 38a-816 (6) of demonstrating a general business prac-
tice by the defendant as required under the statute. See
Gabriel v. Liberty Mutual Fire Ins. Co., Docket No.
3:14-cv-01435 (VAB), 2017 WL 6731713, *10 (D. Conn.
December 29, 2017) (granting motion for summary judg-
ment and concluding as matter of law that there was
insufficient information in record to permit jury to con-
clude that defendant insurer violated CUTPA/CUIPA
when plaintiffs offered evidence of lawsuits involving
insurer but did not support CUTPA/CUIPA claim with
other evidence such as ‘‘depositions with insurance
company employees or other relevant individuals’’).
The plaintiff, having failed to establish a general busi-
ness practice of the defendant, has failed to set forth
a valid CUIPA claim, which is fatal to his CUTPA claim
in count two. The court, therefore, properly rendered
judgment in favor of the defendant with respect to the
CUTPA claim in count two.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although § 38a-816 (6) was the subject of technical amendments in 2012;
see Public Acts 2012, No. 12-145, § 37; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
2
The other counts allege claims for breach of contract (count one), breach
of the implied covenant of good faith and fair dealing (count three), and
unjust enrichment (count four).
3
The court rendered judgment in favor of the plaintiff with respect to his
claim of breach of contract in count one of the third revised complaint,
awarding him damages in the amount of $92,000.
4
In the present case, the trial court did not reach the issue of whether
the evidence established a general business practice by the defendant, as
the court resolved the action by concluding that the plaintiff had failed to
demonstrate any unfair claims settlement practices by the defendant. We,
nevertheless, reach the issue in light of our plenary review of this question
of law. See part II of this opinion.
5
Specifically, the court stated: ‘‘[The plaintiff] specifically claims that [the
defendant] violated CUIPA in the following ways: (1) By misrepresenting
pertinent facts or insurance policy provisions relating to coverages at issue
[§ 38a-816 (6) (A)]; (2) by failing to acknowledge and act with reasonable
promptness upon communications with respect to his claim [§ 38a-816 (6)
(B)]; (3) by refusing to pay his claim without conducting a reasonable
investigation based upon all available information [§ 38a-816 (6) (D)]; (4)
by not attempting in good faith to effectuate prompt, fair and equitable
settlement of his claim [§ 38a-816 (6) (F)]; and (5) by failing to promptly
provide a reasonable explanation of the basis in the policy for the denial
of his claim [§ 38a-816 (6) (N)].’’
6
To the extent that the plaintiff references on appeal other provisions of
CUIPA, namely, § 38a-816 (1) and (2), as well as § 38a-816 (6) (C), (G), and
(M), we do not address them. First, those provisions were never cited in
the plaintiff’s operative complaint. ‘‘It is fundamental in our law that the
right of a plaintiff to recover is limited to the allegations of [his] complaint.
. . . The purpose of the complaint is to limit the issues to be decided at
the trial of a case and is calculated to prevent surprise. . . . A complaint
should fairly put the defendant on notice of the claims against him. . . .
In other words, [a] plaintiff may not allege one cause of action and recover
upon another. . . . In addition, in the context of a postjudgment appeal, if
a review of the record demonstrates that an unpleaded cause of action
actually was litigated at trial without objection such that the opposing party
cannot claim surprise or prejudice, the judgment will not be disturbed on
the basis of a pleading irregularity. . . . In that circumstance, provided the
plaintiff has produced sufficient evidence to prove the elements of his
unpleaded claim, the defendant will be deemed to have waived any defects
in notice. . . . Put another way, a court may not render a judgment for a
plaintiff on a theory that is neither pleaded nor pursued by the plaintiff at
trial.’’ (Citations omitted; internal quotation marks omitted.) Gleason v.
Durden, 211 Conn. App. 416, 430–31, 272 A.3d 1129, cert. denied, 343 Conn.
921, 275 A.3d 211 (2022).
Second, the trial court stated in its memorandum of decision that the
matter was tried over the course of seven days. The appellate record does
not contain transcripts for two of those days—February 27 and March 4,
2020. In our review of the transcripts provided, we have not found any
reference to those additional provisions or to arguments or evidence relating
to them. To the extent that arguments concerning those additional provisions
may have been raised in the transcripts not provided to this court, the record
is not adequate for this court to make such a determination. See Ng v. Wal-
Mart Stores, Inc., 122 Conn. App. 533, 537, 998 A.2d 1214 (2010) (it is
appellant’s burden to provide this court with adequate record on which to
decide issues on appeal, which includes necessary transcripts); see also
Practice Book § 61-10.
Moreover, although the plaintiff referenced those additional provisions
in his posttrial brief, the court never mentioned them in its memorandum
of decision, which expressly referenced the provisions of CUIPA ‘‘cited by
the plaintiff . . . .’’ It logically follows from that statement that the court
was referring to the provisions cited in the third revised complaint. The
plaintiff did file a motion for articulation, which was denied, and the plaintiff
filed a motion for review with this court, which granted the motion but
denied the relief requested therein. Notably, though, the motion for articula-
tion simply asked the court if it found violations of § 38a-816 (1) and (2),
and § 38a-816 (6) (A), (B), (C), (D), (F), (G), (M), and (N); the plaintiff
never asked the court to articulate what provisions the court specifically
considered when it found that only subdivisions (B) and (F) of § 38a-816
(6) potentially could apply, even though the court’s decision, in substance,
referenced only the provisions of CUIPA cited in the complaint and not the
additional ones raised in the plaintiff’s posttrial brief.
7
The plaintiff’s primary claim on appeal is that the court employed an
incorrect standard when it required a showing of bad faith to establish a
violation of CUIPA. In making that claim, however, the plaintiff has not
challenged the finding itself of no bad faith conduct by the defendant. That
is further evidenced by the fact that the plaintiff has not challenged on
appeal the judgment rendered in favor of the defendant on count three
alleging a breach of the implied covenant of good faith and fair dealing,
which necessarily requires a showing of bad faith. Significantly, the court
stated in its decision that ‘‘[a] finding of bad faith on [the defendant’s] part
is an essential element of the plaintiff’s claim that [the defendant] breached
the covenant of good faith and fair dealing, and, as a result, the plaintiff
could not recover under that claim . . . .’’ Thus, its finding of no bad faith
on the defendant’s part was necessary to its resolution of the plaintiff’s
claim of breach of the implied covenant of good faith and fair dealing in
the third revised complaint, regardless of whether it should have applied
to the CUIPA claims.
Moreover, although the plaintiff argues in his brief that the defendant did
not attempt in good faith to effectuate prompt, fair and equitable settlement
of his claim, his analysis fails to specifically challenge the court’s finding
of no bad faith by the defendant. Instead, the plaintiff merely gives a few
examples of conduct he claims demonstrates that the defendant did not
attempt in good faith to settle his claim. Because the plaintiff has failed to
provide any analysis or citation to authority demonstrating why the court’s
finding of no bad faith was improper, the brief is inadequate for this court
to review that finding. See Rosier v. Rosier, 103 Conn. App. 338, 340 n.2, 928
A.2d 1228 (‘‘We are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Where the parties
cite no law and provide no analysis of their claims, we do not review such
claims.’’ (Internal quotation marks omitted.)), cert. denied, 284 Conn. 932,
934 A.2d 247 (2007).
8
The plaintiff has not challenged that ruling on appeal.
9
Those additional instances of insurance misconduct include three case
citations and an official order from the Texas Commissioner of Insurance:
Fidelity National Title Ins. Co. v. Matrix Financial Services Corp., 567
S.E.2d 96 (Ga. App. 2002); Santa Fe Valley Partners v. Fidelity National
Title Ins. Co., Docket No. 638367 (Cal. Super. August 13, 1992); Davis v.
Fidelity National Title Ins. Co., Docket No. 672 MDA 2014, 2015 WL 7356286(Pa. Super. March 18, 2015); and Official Order, Tex. Commissioner of Ins.
No. 2019-5951, In re Fidelity National Title Ins. Co., (May 3, 2019).
10
At the March 3, 2020 hearing, the defendant’s attorney did address each
of the additional instances of insurance misconduct and argued why they
were not applicable and failed to demonstrate a general business practice
by the defendant.
11
The Federal District Court for the District of Connecticut commented
on a similar issue in Hartford Roman Catholic Diocesan Corp. v. Interstate
Fire & Casualty Co., Docket No. 3:12cv1641 (JBA), 2017 WL 3172536 (D.
Conn. July 26, 2017), aff’d, 905 F.3d 84 (2d Cir. 2018), stating: ‘‘It is undisputed
that violation of [§] 38a-816 (6) ‘requires proof that the unfair settlement
practices were ‘‘with such frequency as to indicate a general business prac-
tice.’’’ Lees [v. Middlesex Ins. Co., supra, 229 Conn. 847–48 (quoting Mead v.
Burns, [supra, 199 Conn. 651]). Still, the [plaintiff, Hartford Roman Catholic
Diocesan Corporation (Archdiocese)], relying on Lees and quoting Quimby
v. Kimberly Clark [Corp.], 28 Conn. App. 660, 671–72 [613 A.2d 838] (1992),
argues that ‘more than a singular failure’ involving only the policyholder-
plaintiff suffices to establish a general business practice. . . . [The defen-
dant, Interstate Fire & Casualty Company (Interstate)] counters that
although ‘many cases have held that more than one act of misconduct is
necessary . . . the Archdiocese is twisting those holdings to mean that
anything more than one instance is sufficient to prove a CUIPA violation.’
. . . This [c]ourt agrees with [Interstate]. While both Quimby (reviewing
[S]uperior [C]ourt’s grant of defendant’s motion to strike) and Lees
(reviewing [S]uperior [C]ourt’s grant of summary judgment) found that ‘iso-
lated’ or ‘singular’ instances of insurer misconduct were not sufficient to
satisfy the ‘general business practice’ requirement where the respective
plaintiffs failed to either allege facts or present evidence of misconduct by
the defendant in processing any other claims, both cases noted the necessity
for a plaintiff to show the practice was engaged in with some ‘frequency.’ ’’
(Citations omitted; emphasis omitted.) Hartford Roman Catholic Diocesan
Corp. v. Interstate Fire & Casualty Co., supra, *3.
12
See Hartford Roman Catholic Diocesan Corp. v. Interstate Fire &
Casualty Co., 905 F.3d 84, 96 (2d Cir. 2018) (‘‘While a single instance of
misconduct is insufficient to demonstrate a ‘general business’ practice under
CUIPA; see Mead v. Burns, [supra, 199 Conn. 659], no Connecticut appellate
court has said how many acts of misconduct would suffice, nor is ‘general
business practice’ defined in . . . § 38a-816 (6). Acknowledging this, the
Connecticut Supreme Court in Lees [v. Middlesex Ins. Co., supra, 229 Conn.
849], advised that a court ‘may look to the common understanding of the
words as expressed in a dictionary.’ ’’).
13
‘‘We may affirm a judgment of the trial court albeit on different grounds.’’
Seminole Realty, LLC v. Sekretaev, 192 Conn. App. 405, 416 n.16, 218 A.3d
198, cert. denied, 334 Conn. 905, 220 A.3d 35 (2019).