Drummond v. Waco Scaffolding Company, No. Cv 95-0468756s (Feb. 20, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE The Defendant Waco Scaffolding Company, Inc. has moved to strike Plaintiff Gordon Drummond's counterclaim to the Defendant's counterclaim. The Plaintiff brought suit against the Defendant for personal injuries incurred by him during his use of an allegedly defective tractor rented to him by the Defendant. In its counterclaim, the Defendant seeks enforcement of the hold harmless and indemnity provision¹ of the written rental CT Page 1287-III agreement by which the tractor was rented to the Plaintiff at no charge.

The Plaintiff has filed a counterclaim to Defendant's counterclaim. The allegations of Plaintiff's subject counterclaim in their entirety are as follows:

"First Count

1. The alleged agreement which is the subject of the Defendant's Counterclaim is unfair and/or deceptive within the meaning of C.G.S. § 42-110b.

2. As a result of this unfair and/or deceptive act or practice the Plaintiff has been forced to incur attorneys fees and costs to defend against the Defendant's Counterclaim and if the alleged agreement should be given effect the Plaintiff would suffer the damages and losses sought by the Defendant's Counterclaim.

Second Count

1. The Plaintiff is entitled to attorneys fees pursuant to C.G.S. § 42-150bb."

The Defendant asserts that the counterclaim fails to state sufficient claims upon which relief can be granted.

A motion to strike tests the legal sufficiency of a pleading. Practice Book § 151; Ferryman v. Groton, 212 Conn. 138,142 (1989). Only the grounds specified in the motion may be considered. Meredith v. Police Commission, 182 Conn. 138,140 (1980). "[A]ll facts well pleaded and those facts necessarily implied from the allegations are taken as admitted."Amodio v. Cunningham, 182 Conn. 80, 82-83 (1980). "[T]he court must construe the facts alleged in a pleading in the manner most favorable to the plaintiff." Rowe v. Godou, 209 Conn. 273,278 (1988). "The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them." Ferryman v. Groton, supra, 142. If the facts provable under the allegations would support a defense or cause of action, the motion to strike must fail." CT Page 1287-JJJ Id.

The First Count purports to state a claim under the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110a et seq. Section 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." In determining whether a practice is unfair or deceptive, our Supreme Court has adopted the criteria set out in the "cigarette rule" by the Federal Trade Commission, as follows:

(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-whether, 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 businessmen)].

A-G foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215 (1990), quoting Conaway v. Prestia, 191 Conn. 484, 492 (1983), in turn quoting FTC v. Sperry Hutchinson Co., 405 U.S. 233,244-45 n. 5 (1972).

Normally, a general business practice must be involved and alleged. Quimby v. Kimberly Clark Corporation, 28 Conn. App. 660,671-72 (1992). "A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." S.M.S. Textile Mills, Inc. v. Brown Jacobson,Tillinghast, Lahan King, P.C., 32 Conn. App. 786, 797 (1993).

The allegations of the First Count fail to satisfy the foregoing requirements. The Second Count also is devoid of sufficient particularity. The motion to strike is granted.

DAVID L. FINEBERG JUDGE, SUPERIOR COURT