Lord et al v. Intl Marine Ins Svcs et al
RULING granting 66 Motion to Strike. Further, plaintiffs are hereby ordered to show cause why the court should not strike their claims for violations of CUTPA and fraudulent concealment by Monday, January 30, 2011. Signed by Judge Janet C. Hall on 1/9/2012. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FRANKLIN LORD and SHARON
INSURANCE SERVICES, et al
CIVIL ACTION NO.
JANUARY 9, 2012
RULING RE: DEFENDANT’S MOTION TO STRIKE (DOC. NO. 66)
Plaintiffs, Franklin Lord and Sharon Schuman (collectively “plaintiffs”), bring this
action regarding an insurance coverage dispute relating to the sinking of the plaintiffs’
vessel Wanderlust. On May 24, 2001, plaintiffs submitted an application to International
Marine Underwriters (hereafter “IMU”), a division of Commercial Union, for a marine
insurance policy for the Wanderlust through International Marine Insurance Services,
and two IMIS agents, Alan Golden and Gary Golden (hereafter collectively “IMIS”). On
May 24, 2001, IMU issued a Commercial Union insurance policy to plaintiffs, which was
subsequently renewed through May 24, 2003.
On or about April 29, 2003, plaintiffs reported the sinking of the Wanderlust off
the coast of St. Thomas, United States Virgin Islands, and subsequently made a claim
on their policy. On June 12, 2003, Commercial Union commenced an action for
declaratory judgment in this court, seeking a declaration that the marine insurance
policy issued to plaintiffs was void ab initio due to material misrepresentations by the
plaintiffs in their application. 1
On October 7, 2005, the court granted Commercial Union’s Motion for Summary
Judgment, declaring that the plaintiffs’ insurance policy was void ab initio due to
material misrepresentations in the plaintiffs’ application. On October 11, 2005, the court
entered Judgment, declaring that the policy was null and void and that Commercial
Union had no liability to the plaintiffs resulting from the loss of the Wanderlust. 2 The
Second Circuit affirmed this decision on appeal.
On July 28, 2009, plaintiffs brought the instant action in Connecticut Superior
Court. Defendants removed the case to this court on August 28, 2008. In their original
Complaint, plaintiffs alleged breach of contract claims based on IMIS’s alleged (1)
failure to obtain a valid insurance policy for the Wanderlust; (2) failure to return the
premiums after coverage was denied; (3) failure to file a true and accurate application of
insurance containing a correct date of the vessel’s manufacture; and (4) failure to take
steps to determine the accuracy of the information provided. In addition, plaintiffs
asserted claims under the Connecticut Unfair Trade Practices Act (hereafter “CUTPA”),
Connecticut Unauthorized Insurers Act (hereafter “CUIA”), Connecticut Insurance Plain
Language Act (hereafter “CIPLA”), and for breach of the implied duty of good faith and
Commercial Union Insurance Co. v. Franklin Lord and Sharon Schuman, No. 3:03-cv-1046
Id., Doc. No. 31.
The court granted IMIS’s and IMU’s Motions to Dismiss, finding plaintiffs’ claims
were barred by the applicable statute of limitations. The Second Circuit affirmed, in
part, and reversed, in part, holding:
[T]o the extent that Lord premises his breach-of-contract claims on the fact that
the defendants failed to return his insurance premiums to him after Commercial
Union’s tender, his claims are not barred by collateral estoppel. We question,
however, whether Lord’s claims in this respect have been sufficiently pleaded. . .
On remand, the district court may, in the exercise of its discretion, decide to
permit the plaintiff . . . an opportunity to amend his complaint to cure, if he can,
any deficiencies. We have reviewed the remainder of Lord’s contentions on
appeal . . . and conclude that they are without merit. Therefore, except for Lord’s
claim concerning the failure to return the premiums, we affirm the dismissal of
Lord’s complaint for substantially the reasons stated by the district court in its
Lord v. International Marine Insurance Services, 420 Fed. Appx. 40, 42 (2d Cir. 2011)
(internal citations omitted). On September 27, 2011, the court granted plaintiffs’ Motion
to Amend the Complaint.
STANDARD OF REVIEW
Rule 12(f) permits the court to “strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The court may act
sua sponte or “upon a motion by a party either before responding to the pleading, or, if a
response is not allowed, within 21 days after being served with the pleading.” Id. The
court cannot strike a plaintiff’s allegations unless “no evidence in support of the
allegation would be admissible.” Lipsky v. Commonwealth United Corp., 551 F. 2d 887,
893 (2d Cir. 1976). Evidentiary questions are more properly analyzed at trial and not
“on the sterile field of the pleadings alone.” Id. Therefore, these motions are viewed
unfavorably and rarely granted. See Rodriguez v. Bear Stearns Cos., Inc., No. 07-cv1816(JCH), 2009 WL 995865, at *10 (D. Conn. Apr. 14, 2009); Lipsky, 551 F. 2d at 893
(“[T]he courts should not tamper with the pleadings unless there is a strong reason for
The Second Circuit was very clear. It had questions as to whether plaintiffs’
breach of contract claims based on the failure to return the insurance premiums were
“sufficiently pleaded.” Lord, 420 Fed. Appx. at 42. It left it to this court’s discretion to
decide whether to permit the pro se plaintiffs to opportunity to amend their complaint to
cure any deficiencies. The Court of Appeals affirmed the dismissal of all claims “except
for Lord’s claim concerning the failure to return the premiums.” Id. Thus, when this
court granted plaintiffs the opportunity to replead, it expressly directed that plaintiffs
“may file an Amended Complaint consistent with the Second Circuit’s opinion.” See
Doc. No. 62.
The plaintiffs’ Amended Complaint alleges and claims far more than breach of
contract for failure to return the premiums. As such, the court grants the Motion to
Strike paragraphs 57(a), 87(a), 117(a), 147(a), and 177(a). 3 Further, the court grants
defendants’ Motion to Strike paragraphs 88, 118, 178, 209, 240, 271, 302, 367, 401,
435, 499, 530, and 561 to the extent that they include claims for, e.g., “a loss of the
replacement cost of the Wanderlust ($500,000),” see ¶ 271, or “the financial loss of the
actual cash value of the Wanderlust,” see ¶ 367.
For the foregoing reasons, defendants’ Motion to Strike (Doc. No. 66) is granted.
Further, plaintiffs are hereby ordered to show cause why the court should not strike
Pursuant to Rule 12(f), the court may strike appropriate material sua sponte. See Fed. R. Civ.
their claims for violations of CUTPA and fraudulent concealment by Monday, January
30, 2011. The Clerk is ordered to mail a copy of this Ruling to plaintiffs’ listed address.
Dated at Bridgeport, Connecticut this 9th day of January, 2012.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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