Davis v. Globe Life and Accident Insurance Company

Filing 33

ORDER granting in part and denying in part 19 Motion to Dismiss. See the attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 9/27/13. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WANDA DAVIS, ADMINISTRATRIX OF
THE ESTATE OF MICHAEL DAVIS,
Plaintiff,

:
:
:
:
v.
:
:
GLOBE LIFE AND ACCIDENT INSURANCE :
COMPANY,
:
Defendant.
:

CIVIL ACTION NO.
3:12-CV-01583 (VLB)

September 27, 2013

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS COMPLAINT [Dkt. #19]

I.

Introduction
The Plaintiff, Wanda Davis (“Davis”), as the Administratrix of the estate of

Michael Davis, brings this action against Defendant Globe Life and Accident
Insurance Company (“Globe”), alleging four counts: (1) breach of contract, (2)
breach of the covenant of good faith and fair dealing, (3) violations of Conn. Gen.
Stats. §§ 42-110b and 38a-815a for engaging in unfair or deceptive acts or
practices in the conduct of the business of insurance, and (4) intentional infliction
of emotional distress. Currently before the Court is Defendant Globe’s motion to
dismiss1 counts 2, 3, and 4 pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a

1

Davis argues in her opposition brief that the Defendant’s motion to dismiss is
procedurally improper as “[t]he defendant had an opportunity ‘to obtain a more
complete or particular statement of the allegations of an adverse party’s pleading’
by filing a request to revise” pursuant to Connecticut Practice Book § 10-35. [Dkt.
22, P’s Opp. to D’s MTD, p. 15]. Plaintiff’s argument is irrelevant as this action is
proceeding in federal court pursuant to the Federal Rules of Civil Procedure, not
the Connecticut Practice Book.
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claim upon which relief may be granted. For the reasons that follow, Defendant’s
Motion to Dismiss GRANTED in part and DENIED in part.
II.

Factual Background
The following facts and allegations are taken from Plaintiff’s complaint and

from the documents incorporated therein, on which Plaintiff has relied in bringing
suit. [Dkt. 1, Compl. at ¶ 21]. On or before May 22, 2006, Globe issued to Plaintiff
Wanda Davis a life insurance policy (the “Policy”) including an accidental death
benefit payable upon the accidental death of Michael Davis. [Id. at ¶3; Dkt. 19-2,
Policy p. 2/11]. The Policy’s “Accident Death Benefit Rider” defines accidental
death as a death:
1. As a direct result of bodily injury; and
2. Within 90 days of such injury; and
3. Which is not a result one of these:
* * *
(d) Any kind of poison, drug, or gas, voluntarily ingested
unless prescribed by a doctor;
* * *
[Dkt. 19-2, Policy Rider p. 6/11].
On October 9, 2011, the Plaintiff’s decedent Michael Davis was killed in an
automobile accident. [Dkt. 1, Compl. ¶4]. The record does not indicate who was
driving the vehicle or how the accident occurred. On January 11, 2012 the State
of Connecticut Office of the Chief Medical Examiner determined that Michael
Davis’ cause of death was “Asphyxia by Submersion” and the manner of death
was accidental. [Id. at ¶5]. Plaintiff made demand for the payment of the
Accidental Death Benefits under the terms of the Policy, which Globe has refused
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to pay. [Id. at ¶¶6, 7]. In a letter dated April 26, 2012, Globe explained its denial,
in relevant part, as follows:
The Certificate of Death lists Michael Davis’ cause of death as
‘Asphyxia by submersion.’ This accident occurred when Mr.
Davis’ vehicle left the roadway ‘at a high rate of speed’, went
through a chain link fence and landed in a reservoir.
According to the Toxicology Report received with this claim,
Mr. Davis was found to have a presence of Phencyclidine-PCP
(5.0 ng/mL in blood). Since the above policy excludes
payment of accidental death benefits if death is caused or
contributed to by being under the influence of any kind of
poison, drug, or gas, voluntarily ingested unless prescribed by
a doctor, under the terms of the policy this portion of the claim
would not be eligible for benefits.
[Dkt. 19-3, Exh. B, Denial Letter]. The letter did not state that Michael Davis was
driving the vehicle at the time of the accident, the cause of the accident or that
Michael Davis voluntarily ingested PCP. The letter further advised that the denial
was “based on the information we received during the course of our evaluation of
this claim,” and invited the Plaintiff to submit additional “information which you
feel would materially affect this decision or if you feel the information received is
incorrect.” [Id.]. Globe does not contend here nor are there any facts on the
record in this case tending to show that Michael Davis was driving the accident
vehicle, that he voluntarily ingested PCP, or that the presence of PCP in his blood
stream caused the accident which resulted in his death. Finally, as noted above,
the Globe accidental death rider excludes death caused not merely “contributed
to” by being under the influence of any kind of poison, drug, or gas, voluntarily
ingested unless prescribed by a doctor, as stated in Globe’s denial letter. The

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death must have been the result of and not just contributed to by the voluntary
ingestion of drugs not prescribed by a doctor.
III.

Standard of Review
“‘To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘well4

pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). The Court may also consider “matters of which
judicial notice may be taken” and “documents either in plaintiffs' possession or
of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn. 2005)(MRK).
IV.

Discussion
a. Breach of Covenant of Good Faith and Fair Dealing
Defendant Globe urges the Court to dismiss Plaintiff’s breach of the

covenant of good faith and fair dealing claim because Plaintiff has failed to
establish that Globe acted in bad faith.
[I]t is axiomatic that the ... duty of good faith and fair dealing is
a covenant implied into a contract or a contractual
relationship.... In other words, every contract carries an
implied duty requiring that neither party do anything that will
injure the right of the other to receive the benefits of the
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agreement.... The covenant 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.
Renaissance Mgmt. Co., Inc. v. Connecticut Hous. Fin. Auth., 281 Conn. 227, 240
(Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269
Conn. 424, 432–33 (Conn. 2004)). “To constitute a breach of [the implied
covenant of good faith and fair dealing], the acts by which a defendant allegedly
impedes the plaintiff’s right to receive benefits that he or she reasonably
expected to receive under the contract must have been taken in bad faith.” Id.;
Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 795 (Conn. 2013)
(same). “Bad faith in general implies both actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or refusal to fulfill some duty
or some contractual obligation, not prompted by an honest mistake as to one’s
rights or duties, but by some interested or sinister motive.... Bad faith means
more than mere negligence; it involves a dishonest purpose.” De La Concha, 269
Conn. at 433; Capstone Bldg. Corp., 308 Conn. at 795 (same); TD Bank, N.A. v. J &
M Holdings, LLC, 143 Conn. App. 340, 348 (Conn. App. Ct. 2013) (same). “[A]
plaintiff cannot state a claim for breach of the implied covenant simply by
alleging a breach of the contract, in and of itself.... Instead, to state a legally
sufficient claim for breach of the implied covenant sounding in contract, the
plaintiff must allege that the defendant acted in bad faith.... If the plaintiff fails to
set forth factual allegations that the defendant acted in bad faith, a claim for

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breach of the implied covenant will not lie.” TD Bank, N.A., 143 Conn. App. at
349.
Bad faith is not implicated by conduct that does not impair contractual
rights. Home Ins. Co. v. Aetna Life & Cas. Co., 235 Conn. 185, 200 (Conn. 1995)
(quoting Habetz v. Condon, 224 Conn. 231, 238 (Conn. 1992)). A Plaintiff must
show that he is entitled to recover under a policy before he can recover for the
bad faith denial or processing of an insurance claim. Bergen v. Standard Fire Ins.
Co., No. CV93044099S, 1997 WL 809957, at *15 (Conn. Super. Ct. Dec. 31, 1997).
However, the burden of proving that there is an exception to a risk is on the
insurer. O'Brien v. John Hancock Mut. Life Ins. Co., 143 Conn. 25, 29 (Conn.
1955); Capstone Bldg. Corp., 308 Conn. at 788 n. 24. The insurer must prove
“with a high degree of certainty” that an exclusion clause is applicable. Kelly v.
Figueiredo, 223 Conn. 31, 37 (Conn. 1992). “A plaintiff cannot recover for bad
faith if the insurer denies a claim that is ‘fairly debatable,’ i.e., if the insurer had
some arguably justifiable reason for refusing to pay or terminating the claim.”
McCulloch v. Hartford Life & Accident Ins. Co., 363 F. Supp. 2d 169, 177 (D. Conn.
2005). While evidence of a mere coverage dispute or the insurer’s mere
negligence in the investigation of a claim does not demonstrate a breach of the
duty of good faith and fair dealing, an insurer may not deny an insurance claim
on the basis of unsupported determinations resulting from its arbitrary failure or
refusal to properly perform its claims examination function. Uberti v. Lincoln
National Life Insurance Co., 144 F. Supp. 2d 90, 104 (D. Conn. 2001). Thus in
order to maintain a bad faith denial of insurance coverage claim a plaintiff must
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show that it is entitled to coverage under the policy which was unjustifiably
denied. In defense of a bad faith claim the insurer must show that it denied
coverage based on applicable coverage exclusion. The Plaintiff has pleaded that
on October 9, 2011, while the Policy was in full force and/or effect, her decedent,
Michael Davis, died from asphyxia by submersion as a result of an automobile
accident and that the manner of death was accidental. She further claims that
Globe refuses to pay the death benefits in accordance with the terms of the
Policy to the named beneficiary. Finally she claims Globe failed to make payment
when it knew no dispute existed as to the cause of Michael Davis’ death, that she
was entitled to payment under the Policy, and that Globe failed to make a good
faith attempt to settle the claim. Thus the Plaintiff claims that Globe not only
failed to pay, but that it did so without good cause knowing that it had no
arguably justifiable reason for refusing to pay the claim, and that despite this
Globe failed to attempt in good faith to settle the claim.
In Uberti, the court applied the public policy embodied in the Connecticut
Unfair Insurance Practices Act (“CUIPA,” codified at Conn. Gen. Stat. § 38a816(6)), to determine the sufficiency of a bad faith denial of insurance claim. 144
F. Supp. 2d at 104. The Court held that a bad faith claim may be predicated upon
one of the many enumerated unfair claim settlement practices defined in CUIPA,
in that case, “refusing to pay claims without conducting a reasonable
investigation based upon all available information.” Id. (citing Conn. Gen. Stat. §
38a-816(6)(D)). The Court recognizes, as discussed below, that a single act does
not constitute a violation of the Connecticut Unfair Insurance Practices Act which
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triggers punitive damages. The prohibited and mandatory acts delineated in that
act embody the public policy of this state as to insurance practices and therefore
may form the basis of a common law bad faith claim for which only compensatory
damages are available. See State v. Acordia, Inc., 310 Conn. 1, 12 --- A.3d ---(Conn. 2013); Buckman v. People Exp., Inc., 205 Conn. 166 (Conn. 1987).
The Unfair Insurance Practices Act also requires insurers “to promptly
provide a reasonable explanation of the basis in the insurance policy in relation
to the facts or applicable law for denial of a claim or for the offer of a compromise
settlement.” Conn. Gen. Stat. § 38a-816(6)(N). The Plaintiff has sufficiently
pleaded that she is entitled to payment under the Policy and that Globe failed
without justifiable reason to pay her claim. While not in her bad faith count, the
Plaintiff claims in her intentional infliction of emotional distress count that the
Defendant failed to promptly provide a reasonable explanation of the basis in the
insurance policy and in relation to the facts or applicable law for denial of a claim
in violation of the above provision. In response, Globe attached as an exhibit to
its Motion to Dismiss its denial of coverage letter in which it merely states that
the exclusion of the accidental death benefit for accidental death caused by the
voluntary use of an illicit drug applies because Michael Davis died while traveling
in a motor vehicle while under the influence of PCP. Globe does not state the
facts upon which it asserts a high degree of certainty that Michael Davis
voluntarily ingested PCP, that he was driving the vehicle, or that his resulting
impairment caused the accident. As a result, the Plaintiff has clearly and

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concisely pleaded that Globe failed to provide a reasonable explanation of the
basis in the insurance policy in relation to the facts.
Globe’s failure to state the reasons for its conclusion further supports the
conclusion that the Plaintiff has sufficiently pleaded that Globe denied her
insurance claim on the basis of unsupported determinations resulting from its
arbitrary failure or refusal to properly perform its claims examination function. If
Globe conducted an investigation and it did not reveal that Michael Davis
voluntarily ingested PCP, was driving the accident vehicle, and that Michael’s
voluntary use of PCP was the cause of the accident and his resultant death then
the Plaintiff has sufficiently pleaded that Globe denied her insurance claim based
on unsupported determinations resulting from its arbitrary failure or refusal to
properly perform its claims examination function.
The Plaintiff asserts in her bad faith count that Globe acted in bad faith by
failing to attempt in good faith to settle her claim. Subsection (F) of Section §
38a-816(6) requires insurers to attempt “in good faith to effectuate prompt, fair
and equitable settlements of claims in which liability has become reasonably
clear.” Conn. Gen. Stat. § 38a-816(6)(F). Where an insurer cannot prove “with a
high degree of certainty” that an exclusion clause is applicable, a duty to attempt
in good faith to settle the claim may arise. Kelly, 223 Conn. at 37. Evidence of a
motive to act unreasonably is necessary but not sufficient to proof of bad faith
against an insurer. Craig v. Colonial Penn Ins. Co., 335 F. Supp. 2d 296, 306 (D.
Conn. 2004). Here the face amount of the accidental death rider combined with
Plaintiff’s assertions that her claim was denied without justifiable cause are
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sufficient to establish the requisite motive and factual basis for Plaintiff’s bad
faith claim. Accordingly, the Defendant’s motion to dismiss Count 2 of the
complaint is DENIED.
b. CUIPA Through CUTPA Misrepresentation Claim
The Plaintiff alleges violations of four subsections of the Connecticut
Unfair Insurance Practices Act (“CUIPA”) contained in Conn. Gen. Stat. § 38a816(6),2 by way of the Connecticut Unfair Trade Practices Act (“CUTPA”). Globe
urges the Court to dismiss this claim because Davis has failed to allege that
Globe’s alleged misconduct is more than an isolated act and does not rise to the
level of a general business practice.
CUIPA does not provide a private right of action. However, the Connecticut
Supreme Court has recognized “the existence of a private cause of action under
CUTPA to enforce alleged CUIPA violations.” Mead v. Burns, 199 Conn. 651, 663
(Conn. 1986). The Connecticut Supreme Court has recently affirmed that
“conduct by an insurance broker or insurance company that is related to the
business of providing insurance can violate CUTPA only if it violates CUIPA.”
Acordia, Inc., 310 Conn. at 9. Thus, “if a plaintiff brings a claim pursuant to
CUIPA alleging an unfair insurance practice, and the plaintiff further claims that
the CUIPA violation constituted a CUTPA violation, the failure of the CUIPA claim

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The Court notes that, in paragraph 15c and d of the fifth page of her complaint,
the Plaintiff has erroneously alleged violations of Conn. Gen. Stat. §§ 38a-816(h)
and (n), which do not exist. The Court assumes, based on the statute and on the
allegations of the complaint, that Plaintiff intended to allege violations of Conn.
Gen. Stat. §§ 38a-816(6)(H) and (N).
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is fatal to the CUTPA claim.” Id. at 10. Furthermore, the Connecticut Supreme
Court has recently held that a plaintiff cannot bring an independent CUTPA claim
alleging an unfair insurance practice unless the practice first violates CUIPA, as
“the legislative determinations as to unfair insurance practices embodied in
CUIPA are the exclusive and comprehensive source of public policy in this area.”
Id. at 12.
Section 38a-816 of the CUIPA proscribes “unfair methods of competition
and unfair and deceptive acts or practices in the business of insurance,”
including “unfair claim settlement practices.” Conn. Gen. Stat. §38a-816(6).
Unfair claim settlement practices constitute a CUIPA violation when they are
“[c]ommitt[ed] or perform[ed] with such frequency as to indicate a general
business practice.” Conn. Gen. Stat. §38a-816(6). Specifically, the Plaintiff
alleges that Globe has violated subsections (C), (D), (H), and (N), which prohibit
an insurance provider from:
(C) failing to adopt and implement reasonable standards for
the prompt investigation of claims arising under insurance
policies; . . .
(D) refusing to pay claims without conducting a reasonable
investigation based upon all available information; . . .
(H) attempting to settle a claim for less than the amount to
which a reasonable man would have believed he was entitled
by reference to written or printed advertising material
accompanying or made part of an application; . . . [or]
(N) failing to promptly provide a reasonable explanation of the
basis in the insurance policy in relation to the facts or
applicable law for denial of a claim or for the offer of a
compromise settlement.
Conn. Gen. Stat. §§ 38a-816(6)(C), (D), (H), (N).
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Pursuant to CUIPA’s requirement that an unfair claim settlement practice
be committed or performed with such frequency as to indicate a general business
practice to be actionable under CUIPA, “claims of unfair settlement practices
under CUIPA require a showing of more than a single act of insurance
misconduct.” Mead, 199 Conn. at 659. See also Acordia, Inc., 310 Conn. at 13
(“this court held in Mead that, because a single failure to pay a valid insurance
claim in violation of § 38a–816 (6)(D) does not violate CUIPA, it does not violate
CUTPA”); Lees v. Middlesex Ins. Co., 229 Conn. 842, 849 (Conn. 1994) (“In
requiring proof that the insurer has engaged in unfair claim settlement practices
‘with such frequency as to indicate a general business practice,’ the legislature
has manifested a clear intent to exempt from coverage under CUIPA isolated
instances of insurer misconduct.”); Quimby v. Kimberly Clark Corp., 28 Conn.
App. 660, 672 (Conn. App. Ct. 1992) (“for a plaintiff to allege CUIPA . . . violations
successfully the plaintiff must allege more than a singular failure to settle a
plaintiff's claim fairly. The plaintiff must allege that the defendant has committed
the alleged wrongful acts with such frequency as to indicate a general business
practice”); W. v. Allstate Ins. Co., FSTCV125013961S, 2013 WL 1277174, at *2
(Conn. Super. Ct. Mar. 7, 2013) (“A plaintiff alleging an ‘unfair claim settlement
practice’ pursuant to General Statutes § 38a–816(6), CUIPA, however, cannot
circumvent the requirement that conduct must be a ‘general business practice,’
and instead allege an isolated act of misconduct, even though that could
potentially suffice for a CUTPA claim”); Ensign Yachts, Inc. v. Arrigoni, 3:09-CV209 (VLB), 2010 WL 918107 (D. Conn. Mar. 11, 2010) (quoting Lees, supra).

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Here, the Plaintiff has alleged four CUIPA violations stemming from the
denial of her claim for accidental death benefits under the Policy. She has failed
to allege that this singular act of alleged misconduct, however, amounts to a
general business practice such that her CUIPA claim would be viable. Instead,
Plaintiff alleges misconduct that amounts to a nearly word-for-word recitation of
four unfair claims practices as enumerated by Conn. Gen. Stat. § 38a-816(6),
without any further allegation that the defendant has acted similarly in the
handling of any other claim by any other claimant, and without any allegation that
the alleged misconduct constituted a general business practice or occurred with
any frequency. Such conclusory allegations do not suffice. The Court therefore
dismisses Plaintiff’s CUIPA claim for failure to plead a “general business
practice.” See Hawkeye, LLC v. Zurich Am. Ins. Co., 3:10-CV-899 JCH, 2011 WL
1216408, at *1-2 (D. Conn. Mar. 29, 2011) (dismissing 38a-816(6) claim where
plaintiff cited to eight cases filed against insurer of unfair claims settlement
behavior, several of which appeared substantively similar, but where plaintiff
failed to explain status of cases; “[c]ourts in this district have consistently
dismissed claims under section 38a–816(6) that failed to include factual
allegations sufficient to make a claim of a ‘general business practice’ plausible”);
Lees, 229 Conn. at 849 (“The gravamen of the plaintiff's claim is that the
defendant unfairly failed to settle her claim, and her claim alone. We conclude
that the defendant’s alleged improper conduct in the handling of a single
insurance claim, without any evidence of misconduct by the defendant in the
processing of any other claim, does not rise to the level of a ‘general business

14

practice’ as required by § 38a–816(6)”); Quimby, 28 Conn. App. at 672 (“Here, the
plaintiff's complaint is based wholly on the defendant's alleged failure to settle
only the plaintiff's workers’ compensation claim properly. She makes no
allegations that the defendant has similarly failed to settle similar claims
presented by other claimants properly and, accordingly, has failed to allege
properly that the defendant has committed the alleged wrongful acts ‘with such
frequency as to indicate a general business practice.’ Her claim, therefore, must
fail.”); Starview Ventures, LLC v. Acadia Ins., CV065003463S, 2006 WL 3069664, at
*3 (Conn. Super. Ct. Oct. 17, 2006) (unfair claim settlement could not survive
motion to strike where “the plaintiff's fourth count does not allege that Acadia
has treated other claimants unfairly in a manner that constitutes a general
business practice. Even construing that count of the complaint in a light most
favorable to the nonmoving party, the plaintiff's allegations merely establish
multiple acts of misconduct relating to a single insurance transaction,” and
where “a majority of superior courts have determined that allegations of unfair
claims settlement practices in the handling of different components of the same
claim are insufficient to demonstrate a general business practice in violation of
CUIPA or CUTPA.”). But see Wirth v. Progressive Cas. Ins. Co., CV095012844S,
2010 WL 654392 (Conn. Super. Ct. Feb. 14, 2010) (claim was sufficient where
plaintiff alleged that “[t]he defendant's unfair conduct occurred with such
frequency so as to indicate a general business practice in that the conduct was
carried out repeatedly in various and different manners over a prolonged period
of time” and that “[t]he frequency of the defendant’s unfair settlement practices,

15

as evidenced in their dealings with both this plaintiff as well as others, indicates a
general business practice of the defendant, in violation of CUTPA.”).
Lastly, Globe argues that Davis’ CUTPA claim must fail because it does not
satisfy the “cigarette rule” because a simple breach of contract may not serve as
a basis for a CUTPA claim.
It is well settled that in determining whether a practice violates
CUTPA we have adopted the criteria set out in the cigarette
rule6 by the federal trade commission for determining when a
practice is unfair: (1) [W]hether the practice, without
necessarily having been previously considered unlawful,
offends public policy as it has been established by statutes,
the common law, or otherwise-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
businesspersons].... All three criteria do not need to be
satisfied to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of the
criteria or because to a lesser extent it meets all three.
Am. Car Rental, Inc. v. Comm'r of Consumer Prot., 273 Conn. 296, 305-06 (Conn.
2005) (internal quotation marks and citation omitted). The Connecticut Supreme
Court addressed the cigarette rule in the context of insurance related practices
claims recently in State v. Acordia, Inc., 310 Conn. 1 (Conn. 2013):
Under the first prong of the cigarette rule, whether a business
practice violates CUTPA depends on 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—whether, in other
words, it is within at least the penumbra of some common-law,
statutory, or other established concept of unfairness....’
Because CUIPA provides the exclusive and comprehensive
source of public policy with respect to general insurance
practices, we conclude that, unless an insurance related
practice violates CUIPA or, arguably, some other statute
16

regulating a specific type of insurance related conduct, it
cannot be found to violate any public policy and, therefore, it
cannot be found to violate CUTPA.
310 Conn. at 12. Thus, although Plaintiff has sufficiently pleaded that Globe
unjustifiably denied her claim without explanation in violation of Connecticut law,
had she established a broader practice of such denials her CUIPA claim would
survive. Having asserted a single act, however, her CUTPA claim must fail. For
the foregoing reasons, Plaintiff’s CUIPA and CUTPA claims in count 3 are
DISMISSED.
c. Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress, a
plaintiff must demonstrate “(1) that the actor intended to inflict emotional distress
or that he knew or should have known that emotional distress was the likely
result of his conduct; (2) that the conduct was extreme and outrageous; (3) that
the defendant's conduct was the cause of the plaintiff's distress; and (4) that the
emotional distress sustained by the plaintiff was severe.” Watts v. Chittenden,
301 Conn. 575, 586 (Conn. 2011) (quoting Appleton v. Bd. of Education, 254 Conn.
205, 210 (Conn. 2000)). “Whether a defendant's conduct is sufficient to satisfy the
requirement that it be extreme and outrageous is initially a question for the court
to determine.... Only where reasonable minds disagree does it become an issue
for the jury.” Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 527 (Conn.
2012). See also Cassotto v. Aeschliman, 130 Conn. App. 230, 235 (Conn. App. Ct.
2011) (same); Winter v. Northrup, 334 F. App'x 344, 347 (2d Cir. 2009) (same). “[I]n
assessing a claim for intentional infliction of emotional distress, the court
17

performs a gatekeeping function. In this capacity, the role of the court is to
determine whether the allegations of a complaint, counterclaim or cross
complaint set forth behaviors that a reasonable fact finder could find to be
extreme or outrageous. In exercising this responsibility, the court is not fact
finding, but rather it is making an assessment whether, as a matter of law, the
alleged behavior fits the criteria required to establish a claim premised on
intentional infliction of emotional distress.” Hartmann v. Gulf View Estates
Homeowners Ass'n, Inc., 88 Conn. App. 290, 295 (Conn. App. Ct. 2005); Gagnon v.
Housatonic Valley Tourism Dist. Comm'n, 92 Conn. App. 835, 847 (Conn. App. Ct.
2006) (same).
Liability for intentional infliction of emotional distress
requires conduct that exceeds all bounds usually
tolerated by decent society.... Liability has been found
only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the
actor, and lead him to exclaim, Outrageous! ... Conduct
on the part of the defendant that is merely insulting or
displays bad manners or results in hurt feelings is
insufficient to form the basis for an action based upon
intentional infliction of emotional distress.
Perez-Dickson, 304 Conn. at 527 (quoting Appleton, 254 Conn. at 210–11). See
also Cassotto, 130 Conn. App. at 236 (“Although the defendants’ alleged behavior
no doubt was hurtful and distressing to the plaintiff, plaintiffs must necessarily

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be expected and required to be hardened to a certain amount of rough language,
and to occasional acts that are definitely inconsiderate and unkind”). Moreover,
“wrongful motivation by itself does not meet the standard for intentional infliction
of severe emotional distress; rather, it is the act itself which must be
outrageous.” Perez-Dickson, 304 Conn. at 528 (citation omitted).
Globe argues that Davis’ emotional distress claim must be dismissed
because nowhere has Plaintiff alleged behavior that has exceeded all bounds
usually tolerated by decent society. Davis has failed to respond to Globe’s
argument for dismissal in any way in her opposition brief, which is devoid of any
mention of her emotional distress claim. Thus, the Court deems this claim to be
abandoned. Paul v. Bank of Am., N.A., 3:11-CV-0081 JCH, 2011 WL 5570789, at *2
(D. Conn. Nov. 16, 2011) (“When a party ‘offer[s] no response’ to its opponent's
motion to dismiss a claim, that claim is abandoned”) (internal citation omitted);
W.R. v. Conn. Dep't of Children & Families, 3:02CV429 (RNC), 2003 WL 1740672, at
*2 n.5 (D. Conn. Mar. 24, 2003) (claim for damages under state law claims deemed
abandoned where plaintiffs failed to respond to arguments for dismissal in
defendants’ motion to dismiss); Martinez v. City of New York, 11 CIV. 7461 JMF,
2012 WL 6062551, at *1 (S.D.N.Y. Dec. 6, 2012) (“A court ‘may, and generally will,
deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed.’”) (internal citation omitted);
Lipton v. Cnty. of Orange, NY, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (same).
Plaintiff’s apparent abandonment of this claim finds support in the law as
her complaint fails to allege facts sufficient to constitute the requisite degree of
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extremis either in Globe’s conduct or her response. In Carroll v. Allstate Ins. Co.,
262 Conn. 433, 815 (Conn. 2003), the Connecticut Supreme Court vacated a
judgment following a jury verdict in favor of the insured on his emotional distress
claim in a case in which the insured made a fire damage claim, which the insurer
denied after the insurer challenged the insured’s claim of an accidental fire, hired
an investigator who conducted an inadequate investigation, and erroneously
concluded that the fire was caused by arson. In addition, Plaintiff claims simply
that she suffered “emotional distress,” not severe emotional distress. [Dkt. 1,
Compl. ¶ 19]. See Stevens v. Allstate Ins., No. CV00071957S, 2002 WL 237330
(Conn. Super. Ct. Jan. 24, 2002) (insurer's failure to promptly pay insured's
property damage claim under homeowner's insurance policy did not give rise to
cause of action against insurer for intentional infliction of emotional distress;
insurer's conduct was not extreme and outrageous, and insured did not allege
that he sustained severe emotional distress). Plaintiff’s intentional infliction of
emotional distress claim in count 4 is thus DISMISSED.
V.

Conclusion
For the foregoing reasons, Defendant’s [Dkt. #19] Motion to Dismiss the

Complaint in part is GRANTED in part and DENIED in part. Specifically, Plaintiff’s
claims for CUIPA and CUTPA violations and intentional infliction of emotional
distress in counts 3 and 4 are dismissed, while Plaintiff’s claim for breach of the
covenant of good faith and fair dealing in count 2 remains live. Plaintiff’s breach
of contract claim in count 1, which was not addressed in Defendant’s motion, is
also extant.
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IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 27, 2013 

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