DocketNumber: No. CV95 0551644
Citation Numbers: 1996 Conn. Super. Ct. 2985, 16 Conn. L. Rptr. 401
Judges: HENNESSEY, J.
Filed Date: 4/8/1996
Status: Non-Precedential
Modified Date: 4/18/2021
On or about May 29, 1991, David R. Hill [Depositor] opened a checking account with the Bank of South Windsor [Bank]. On or about January 8, 1992, Massachusetts Mutual Life Insurance Company [Insurer] issued a policy insuring the depositor in the amount of five hundred thousand dollars ($500,000.00) to be paid upon his death. At or following the date of this issuance, the Bank entered into an agreement with the depositor whereby it agreed to issue payment for the premiums for the life insurance policy by electronic fund transfer from the depositor's checking account at the Bank.
From January 8, 1992 to May 1993, the Bank paid the premiums for the policy with knowledge that many of the payments created overdrafts in the depositor's account. On September 2, 1993, the depositor died and a claim was made under the policy by his wife, Lori Hill [Hill] for the payment of death benefits. The insurer refused to honor the policy on the grounds that the depositor failed to make premium payments for the months of June, July and August of 1993. On June 27, 1995, Hill filed an eight count revised complaint against the Bank for failure to make payments for the months in question and against the insurer for failure to honor the policy. On October 24, 1995, the Bank filed CT Page 2986 a motion to strike Counts One, Two, Four and Seven of the Revised Complaint and a Memorandum in Support. On December 1, 1995, Hill filed a Memorandum in Opposition.
"Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Bouchard v. People's Bank,
COUNT ONE — STANDING AS THIRD PARTY BENEFICIARY
In Count One, Hill alleges that the Bank breached its agreement with the depositor "to make all premium payments and to honor overdrafts in said account with the [Bank]." Revised Complaint, p. 3. Hill contends that the depositor and the Bank agreed and intended that the Bank would assume a direct obligation to her as a third party, thus she is entitled to bring this action as a third-party beneficiary. The Bank argues that the only agreement regarding these payments was made between the depositor and the insurer; not the Bank. "It [the Agreement] is not even a contract between [the Bank] and insured.1 There is no other reference in the Complaint to any other manifestation of intent by and between the contracting parties." Memorandum in Support, p. 4.
In order to enforce this agreement as a third party beneficiary, Hill must "allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v.Smith,
However, it appears that there is a question of fact as to which agreement is at issue. While the Bank in its Memorandum in Support refers to the MMM Plan Authorization,2 Hill, in her revised complaint, only refers to an oral agreement between the depositor and the Bank. "Upon information and belief, said agreement between the Defendant Bank and said David R. Hill was oral." Revised Complaint, pps.
COUNT TWO — EXISTENCE OF A FIDUCIARY DUTY
In Count Two, Hill alleges that the Bank had "a longstanding, special relationship of trust and confidence with the Plaintiff and her husband, who justifiably relied upon the fact that the [Bank] has superior knowledge, skill and expertise in insuring available funds for timely payment on the life insurance policy." Revised Complaint, p. 3. Hill argues that a fiduciary relationship existed between the depositor and the Bank which required the Bank to "take certain steps to insure the payment of the life insurance policy premiums." Memorandum in Support, p. 7.
In Dunham v. Dunham,
Hill does not produce any evidence of reliance or `special circumstances' to prove that a fiduciary relationship existed between the depositor and the Bank. As a fiduciary, Hill's right to bring this action flows from the duty created from a fiduciary relationship between the depositor and the Bank. As she has failed to demonstrate such a relationship, she cannot bring this action for breach of a fiduciary duty. Accordingly the defendant's motion to strike Count Two is granted.
COUNT FOUR — WRONGFUL DISHONOR
General Statutes §
COUNT SEVEN — IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Hill claims that the Bank breached an obligation of good faith and fair dealing that would be implied in the underlying contract between the depositor and the Bank as a matter of law. However, this `duty of good faith' is "essentially [is] a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." Magnan v. AnacondaIndustries, Inc.,
For the purposes of this motion, the court assumes that this obligation of good faith exists through the creation of an enforceable oral agreement between the depositor and the Bank. "An implied obligation of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." Shawmut BankConnecticut v. L R Realty, Superior Court, judicial district of New London at New London, Docket Nos. 523134, 522814 (June 20, 1995, Austin, J.). "Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear or convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence." Konover DevelopmentCorp. v. Zeller,
Since Hill did not establish a fiduciary relationship between the depositor and the Bank, the burden of proving breach of the covenant of good faith and fair dealing remains with her. In her memorandum, Hill cites a number of cases to support the proposition that she has a right as a third party beneficiary to bring this action. However, she fails to offer any evidence of any actual or perceived wrongdoing or `unfair dealing' exercised by the Bank with respect to the oral contract. Hill has failed to meet her burden to provide `clear and convincing' evidence that the CT Page 2991 Bank committed any breach of implied covenants of good faith or fair dealing. Accordingly, the defendant's motion to strike Count Seven is granted.
M. Hennessey, J.