DocketNumber: No. CV96-0131425
Judges: LEHENY, J. CT Page 8141
Filed Date: 8/5/1997
Status: Non-Precedential
Modified Date: 7/5/2016
The function of the motion to strike is to test the legal sufficiency of a pleading. R.K. Constructors, Inc. v. FuscoCorp.,
In the first and second counts of her revised substitute complaint, the plaintiff alleges that the defendant breached a duty of good faith and fair dealing. Specifically, in the first count the plaintiff alleges that the defendant acted with "reckless indifference" and in the second count the plaintiff alleges that the defendant acted with "wantan (sic) and malicious CT Page 8142 conduct," both in violation of its duty of good faith and fair dealing. In the third count the plaintiff alleges intentional conduct on the part of the defendant.
The defendant has moved to strike only the first and second counts of the revised substitute complaint claiming that they "are barred by the exclusive remedy provisions of the Workers' Compensation Act," or in the alterative, that they "are substantially similar to the counts which the court ordered stricken in its December 17, 1996 Memorandum of Decision granting Sentry's first Motion to Strike." (April 3, 1997 Motion to Strike, ¶¶ 1 2). Since it is dispositive of the present motion to strike, the court only addresses the defendant's latter argument in this memorandum.
In its December 16, 1996 memorandum of decision, the court,Vertefeuille, J., struck, inter alia, the first two counts of the plaintiff's five count complaint. Those counts alleged that the defendant's actions constituted wilful and serious misconduct in violation of its duty of good faith and fair dealing. In striking those counts, the court reasoned that "[t]he plaintiff [did] not allege that she had any contractual relationship with Sentry nor that she was an insured under the workers' compensation policy issued by Sentry . . ." (Memorandum of Decision dated December 16, 1996, p. 3). Ultimately, Judge Vertefeuille granted the defendant's motion to strike the two counts finding that "a cause of action for breach of the duty of good faith and fair dealing must be predicated on a contractual relationship between the parties," and that the plaintiff had failed to make such an allegation in her complaint. (Memorandum of Decision, p. 5).
The first and second counts of the revised substitute complaint are similar to the first and second counts of the original complaint, with the only significant difference being that the plaintiff has added to both counts an allegation that "[a]s an employee of Belding Heminway Company, the Plaintiff, Maria Orsini, was an intended third party beneficiary of the contract Belding Heminway Company entered into with Sentry Insurance Company." (March 19, 1997 Revised Substitute Complaint, First Second Counts, ¶ 5).
It is apparent that the plaintiff added the additional allegations in the first two counts in an attempt to comply with Judge Vertefeuille's December 16, 1996 decision. Unfortunately, CT Page 8143 the addition of the above cited language does not, in and of itself, rectify the shortcomings of the plaintiff's original complaint. It is well settled that "one who is neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract." Tomlinson v. Board ofEducation,
In the present case, the plaintiff's assertion that "[a]s an employee of Belding Heminway Company, the Plaintiff, Maria Orsini, was an intended third party beneficiary of the contract Belding Heminway Company entered into with Sentry Insurance Company" is supported by no factual allegations showing an intent on the part of Sentry and Belding to assume a direct obligation to her as a third party beneficiary to the insurance contract. The plaintiff has simply added an unsupported conclusion of law to the allegations which were previously struck as being legally insufficient. When ruling on a motion to strike, the court is limited and may only rely on the facts alleged in the complaint;Novametrix Medical Systems, Inc. v. BOC Group, Inc, supra,
Since the additional information added to the revised substitute complaint contains nothing more than legal conclusions, the court cannot rely on it as evidence in evaluating the legal sufficiency of the subject claims. SeeMaher v. First National Supermarkets, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CT Page 8144 555124 (August 22, 1996, Hale, S.T.R.); Paventi v. Kusmirek,
Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 466330 (July 19, 1995, Goldberg, S.J.) (
Discounting the additional allegation that the plaintiff was a third party beneficiary to the insurance contract, the first two counts of the revised substitute complaint are identical in substance to the first two counts of the plaintiff's original complaint, which were struck by the court, Vertefeuille, J.
While the law of the case is not written in stone and a judge is not bound to follow the decisions of another judge made at an earlier stage of the proceeding, "[a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge." (Citations omitted.) Breen v. Phelps,
The court agrees with the decision of Judge Vertefeuille in striking the first two counts of the plaintiff's original complaint for failing to allege a contractual relationship between the plaintiff and the defendant. In the present case, as discussed supra, the plaintiff has failed to sufficiently allege such a relationship so as to comply with Judge Vertefeuille's December 16, 1996 decision. Therefore, the court treats Judge Vertefeuille's previous decision striking the first two counts of the plaintiff's complaint as the law of the case. Accordingly, CT Page 8145 the defendant's motion to strike the first and second count of the plaintiff's revised substitute complaint is granted.
SANDRA VILARDI LEHENY, J.