Mercier v. Piper, No. Cv 98 0058759 S (May 27, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The third party defendant in both of these related actions, Government Employees Insurance Co. (GEICO), moves to strike the third count of both third party complaints filed by the third party plaintiff, Elton Piper. These counts allege that GEICO violated the Connecticut Unfair Trade, Practices Act (CUTPA), G.S. ch. 735a, by refusing to defend Piper in the underlying CT Page 5696 negligence actions. The gravamen of the motions to strike is that the single instance of refusal to defend alleged in Piper's pleadings is insufficient to state a cause of action under CUTPA.

In determining whether conduct violates CUTPA, the criteria described as the "cigarette rule" apply. A-G Foods Inc. v.Peppericine Farms, Inc., 216 Conn. 200, 215 (1990). The criteria are:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise and 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.

Piper makes no claim that any legislative scheme or public policy was breached by GEICO's refusal to defend. The pleadings are also devoid of any factual allegations supporting fraud, deceit, misrepresentation, manipulation, discrimination, or any other aggravating circumstance by which GEICO's refusal to defend could be characterized as immoral, unethical, oppressive or unscrupulous. A CUTPA claim must be pleaded with enough particularity to allow evaluation of the legal theory upon which it is founded. S.M.S. Textile Mills, Inc. v. Brown, Jacobson,Tillinghast, Lahan and King, P.C., 32 Conn. App. 786, 797 (1993).

Here, the complaint merely alleges a breach of the insurance contract between the parties. A disagreement as to the terms of a contract or noncompliance with the contract, standing alone, fails to set forth a valid CUTPA claim.

The motions to strike the third counts of the third party complaints are granted.

Sferrazza, J. CT Page 5697