DocketNumber: No. 052606
Citation Numbers: 1992 Conn. Super. Ct. 1813, 7 Conn. Super. Ct. 401
Judges: DRANGINIS, J.
Filed Date: 2/6/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The defendant assigned defendant employee Derek Hyde, a claim representative, to handle the plaintiff's claim, and Mr. Hyde was supervised by Peerless employee Ina Wimley, also a defendant. The plaintiff claims, in count one, that Peerless, through its agents, servants, and employees, breached the aforementioned insurance contract by, inter alia, failing to provide coverage pursuant to the contract, making false representations regarding the scope of the coverage, and delaying advancements and prompt coverage, thereby exacerbating the business interruption losses incurred by the plaintiff. CT Page 1814
In count three of its complaint, the plaintiff repeats the aforementioned allegations and adds that the positions of the parties with regard to the policy resulted in a justifiable trust being confided in Peerless by the plaintiff, and a resulting superiority and influence on the part of Peerless. Consequently, the plaintiff alleges the existence of a fiduciary relationship between the plaintiff and the defendant whereby the defendant owed the plaintiff a fiduciary duty. The plaintiff alleges that Peerless breached that duty in the same manner articulated in count one, supra, as well as by failing to fully, accurately, and honestly explain and implement the terms, coverage and definitions of the policy.
Count six of the complaint sounds in negligence, alleging that defendants Wimley and Hyde failed to act with reasonable skill, care and diligence in the handling of the plaintiff's claims, resulting in damage to the plaintiff.
On January 27, 1992, the defendants filed a motion to strike counts three and six of the amended complaint and attached thereto a supporting memorandum. On February 3, 1992, the plaintiff submitted a memorandum in opposition to the motion to strike
The motion to strike is provided for in Practice Book Sections 151-158. A motion to strike tests the legal sufficiency of a pleading and "admits all facts well pleaded." Ferryman v. Groton,
In their memorandum in support of the motion to strike, the defendants contend that there is no cognizable cause of action for breach of a fiduciary duty in the context of a first party insurance contract. The defendants also claim that no cognizable cause of action in negligence exists against the individual claim representatives of an insurer, as such representatives personally owe no duty to the insured, and because mere negligence is not a basis of liability in a first party insurance case. Consequently, the defendants argue, these counts should be stricken.
The plaintiff, in its opposing memorandum, states that a claim of breach of a fiduciary duty is a factual issue and, therefore, should not be stricken. The plaintiff CT Page 1815 also claims that its negligence claim is a recognizable cause of action and, consequently, the motion to strike should be denied.
COUNT III
The courts of this state first encountered the issue of whether an insurance agent owes a fiduciary duty to an insured in Katz v. Frank B. Hall Co.,
Connecticut's courts have chosen not to specifically define "fiduciary relationship." See, e.g., Dunham v. Dunham,
COUNT IV
The defendant also seeks to strike the sixth count of the amended complaint, sounding in negligence. The defendants claim that neither a first party insurer nor its claims representative is liable for mere negligence in the handling of an insured's claim under the policy. Rather, the defendants contend, an insurer or its claims representative must merely avoid acting in "bad faith" to CT Page 1816 avoid liability in a first party insurance context. The defendants apparently rely upon Buckman v. People Express Inc.,
The defendants also argue that the individual claim representatives owe a duty of care only to the insurer, not to the insured, and, consequently, the plaintiff cannot bring suit against the claim representatives. However, in Maturo v. Gerard,
The plaintiff has alleged that Peerless' employees Hyde and Wimnley have engaged in tortious conduct in that they acted negligently, resulting in injury to the plaintiff. See, e.g., Maturo, supra. Furthermore, because merely avoiding acting in "bad faith" is not enough to avoid liability in a first party insurance context, see e.g., General Statutes Section
DRANGINIS, J.
Alaimo v. Royer , 188 Conn. 36 ( 1982 )
Scribner v. O'Brien, Inc. , 169 Conn. 389 ( 1975 )
Stein v. Continental Casualty Co. , 110 Mich. App. 410 ( 1981 )
Altieri v. Nanavati , 41 Conn. Super. Ct. 317 ( 1989 )
Sobotor v. Prudential Property & Cas. Ins. Co. , 200 N.J. Super. 333 ( 1984 )