DocketNumber: No. CV91 27 86 39
Citation Numbers: 1995 Conn. Super. Ct. 7557
Judges: MAIOCCO, JUDGE.
Filed Date: 7/10/1995
Status: Non-Precedential
Modified Date: 4/17/2021
On November 24, 1993, Hoffman filed a three count (second) amended complaint. The first count alleges breach of contract and seeks underinsured motorist benefits under the contract that Allstate issued to her. The second count alleges a mutual mistake and seeks the reformation of Hoffman's insurance contract so that she can recover the "proper" amount of benefits. The third count alleges that Case made misrepresentations to Hoffman to induce her to agree the insurance contract. This count also seeks the reformation of Hoffman's insurance contract.
On February 23, 1994, Allstate filed a "third special defense to the third count." This special defense states that the "plaintiff's cause of action as stated in the third count is barred by the applicable statute of limitations." (#147). On September 17, 1994, the court, Thim, J., overruled Hoffman's objection to the filing of this special defense. On September 30, 1994, Hoffman filed a reply to the third special defense to the third count. (#167).
On May 1, 1995, Hoffman filed a motion to strike the third special defense to the third count. (#187).1 Hoffman also filed memorandum in support of her motion to strike. On May 22, 1995, Allstate filed a memorandum in opposition to the motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the [non-moving party]." (Internal quotation marks omitted.)Novametrix Medical Systems, Inc. v. BOC Group, Inc.,
In Hoffman's motion to strike, she argues that the third special defense should be stricken because the third count relates back to her original complaint and is not barred by the statute of limitations. In Hoffman's memorandum in support, she argues that her case is comparable to Gurliacci v. Mayer,
In its memorandum in opposition, Allstate presents three grounds for denying the motion to strike. First, Allstate argues that in ruling on a motion to strike, the court should examine only the pleadings. Allstate argues that the "relation back" theory should not be used because the court would have to examine facts outside the motion to strike. Allstate argues that the pleadings show that the fraud occurred on December 29, 1988, and the count was filed in 1993. Second, Allstate argues that the decision by the court, Leheny, J., does not deprive Allstate of the right to file a special defense. Third, Allstate argues that even if the court were to adopt the "relation back" doctrine, the court should not strike the special defense because the fraud count differs from the counts that had been alleged in the original complaint. Therefore, Allstate argues that the fraud count would be barred by the operation of the statute of limitations Allstate argues that this case is distinguishable fromGurliacci v. Mayer, supra, and comparable to Sharp v. Mitchell,
"Plaintiff's motion to strike [a special defense] is based upon law and facts which require a legal determination as to whether the amendment relates back to the date of the original service upon McDonald's Corporation. Such a determination is not appropriate on a motion to strike, which is limited strictly to whether a . . . [special defense] states a legally cognizable cause of action . . . . CT Page 7560 Questions of law are not determined on a motion to strike, but are more appropriately considered on a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Posta v.McDonald's Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 275577 (May 27, 1993, Ballen, J.).
Consequently, the court finds that Allstate's first argument is persuasive. The court, at this stage, will not determine whether the fraud count in the November 24, 1993 amended complaint relates back to the December 28, 1990 complaint on a motion to strike because the first complaint is not before the court. See Liljedahl Bros., Inc.v. Grigsby, supra,
The Motion to Strike (#188) is denied, accordingly.
THE COURT, MAIOCCO, JUDGE