DocketNumber: No. 321050
Citation Numbers: 1996 Conn. Super. Ct. 4320
Judges: MORAGHAN, J.
Filed Date: 5/9/1996
Status: Non-Precedential
Modified Date: 4/17/2021
On November 26, 1995, Allstate filed a revised answer and three special defenses. In the first special defense, it seeks a setoff of any basic reparations benefits it has paid to Gore from any award to which Gore may be found to be entitled. In the second special defense, it seeks a reduction of any amount Gore may be entitled to on the basis of workers' compensation benefits or disability benefits paid to Gore. In the third special defense, it states that in the event Gore is found to be entitled to damages, "the award is limited to the applicable policy limits of the Plaintiff's policy with the Defendant less all applicable credits as claimed in the First and Second Special Defenses stated above."
On December 6, 1995, Gore moved to strike Allstate's first and third special defenses on the ground that they are improper CT Page 4321 because they seek a reduction in the plaintiff's damages by virtue of collateral source benefits. Gore argues that Practice Book Sec. 195A prohibits reference in a pleading to collateral source payments described in sections
"A motion to strike is the proper procedural vehicle to challenge the legal sufficiency of any special defense." GatewayBank v. Herman, Superior Court, judicial district of Danbury at Danbury, Docket No. 315947 (May 15, 1995, Stodolink, J.); Practice Book Sec. 152(5). "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v. Bassman,
In Bennett, the issue was whether the defendant's failure to plead as a special defense (1) the policy limits of the plaintiff's insurance policy or (2) a prior settlement of the defendant with another party precluded the trial court from reducing the amount of the plaintiff's award by those amounts. The court concluded that it did not, noting that the plaintiff had had ample notice of the policy limits and prior settlement through her own pleadings and through pretrial proceedings. The court then remarked that we take this opportunity to hold that henceforth an insurer should raise issues of policy limitation, even when undisputed, by special defense.
In addition to Bennett, Gore relies on Hilbert v. AmericanFinancial Corp., Superior Court, judicial district of Litchfield, Docket No. 66333 (August 11, 1995, Pickett, J.), wherein the court held that under the Bennett holding, the insurer is not required to plead collateral source payments as a special defense since such payments do not raise an issue of policy limitation but instead relate to recoverable damages.
This court is satisfied that the Hilbert court's analysis is indeed the correct one, and that Allstate's first and third special defenses should, therefore, be stricken. The language inBennett requiring "issues of policy limitation" to be specially CT Page 4322 pleaded refers not to matters of reduction or reimbursement, but rather to specific policy defenses such as, inter alia, the policy holder's lack of cooperation, failure to pay premiums, late notice, or unauthorized use of an insured vehicle.
Section 195A of the Practice Book provides that no pleading shall contain any allegations regarding receipt by a party of collateral source payments as described in sections
Moreover, issues of reduction or reimbursement are not properly raised by special defense in any event, since they do not meet the definition of a special defense. As noted above, "[t]he purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v.Bassman, supra, 472-73; Bennett v. Automobile Ins. Co. ofHartford, supra; Practice Book Sec. 164.
Under this analysis, an "issue of policy limitation" which addresses the insurance company's liability, such as failure to pay premiums or late notice of claim, would properly be the subject of a special defense. However, issues of reduction or reimbursement do not address the insurance company's liability to the plaintiff and, as such, are not proper special defenses. SeeUnion Savings Bank v. Barry, Superior Court, judicial district of Danbury at Danbury, Docket No. 320962 (March 14, 1996, Moraghan, J.) (holding that plaintiff's failure to mitigate damages is not properly the subject of a special defense since it does not address the insurance company's liability).
It should be noted that pursuant to sections
In accordance with the foregoing, the motion to strike Allstate's first and third special defenses, is granted. Perhaps appellate review of this decision will provide the opportunity to clarify the meaning of "issues of policy limitation" as used in Bennett with respect to pleading such issues in special defenses to an underinsurance action.
MORAGHAN, J.