Ramos v. AmGUARD Insurance Company

Filing 22

ORDER granting 19 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Ruling and Order, the Court GRANTS Defendant's motion for judgment on the pleadings.To the extent that Mr. Ramos can remedy the deficiencies in the factual allegations in his Complaint, he may move for leave to amend the Complaint by September 20, 2024. Signed by Judge Victor A. Bolden on 8/30/2024. (Thompson, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
OSVALDO RAMOS,
Plaintiff,
v.

No. 3:23-cv-1098 (VAB)

AMGUARD INSURANCE COMPANY,
Defendant.
RULING AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS
Osvaldo Ramos (“Mr. Ramos” or “Plaintiff”) has sued AmGuard Insurance Company
(“AmGuard” or “Defendant”) for breach of contract (“First Count”), negligence (“Second
Count”), and violations of the Connecticut Unfair Trade Practices Act (“CUTPA”) and the
Connecticut Unfair Insurances Practices Act (“CUIPA”). Not. of Removal, ECF No. 1-2 (Aug.
18, 2023) (“Compl.”).
Defendant has moved for judgment on the pleadings as to second and third counts of the
Complaint. Mot. for J. on the Pleadings, ECF No. 19 (Oct. 20, 2023) (“Mot.”).
For the following reasons, the Court GRANTS Defendant’s motion for judgment on the
pleadings.
To the extent that Mr. Ramos can remedy the deficiencies in the factual allegations in his
Complaint, he may move for leave to amend the Complaint by September 20, 2024.

I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
A. Factual Allegations
On July 20, 2022, Mr. Ramos purchased a property insurance policy from AmGuard,

insuring his residence in Meriden, Connecticut and himself against covered losses from July 20,

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2022 to July 20, 2023. Compl. at 4 ¶¶ 1, 3–4.1
On August 22, 2022, there was a fire at Mr. Ramos’s residence that allegedly caused real
and personal property damage. Id. at 5 ¶¶ 6–7. Mr. Ramos alleges that the claim arising from the
fire is a covered loss under the policy. Id. ¶ 8.
As of the date of the Complaint, AmGuard has paid Mr. Ramos a total of $2,196.13
toward his claim, despite the covered damages and covered repairs allegedly exceeding the
amount paid. Id. ¶¶ 11–13.
Mr. Ramos alleges that he provided timely notice of his loss and complied with the terms
and conditions of his insurance policy, yet AmGuard has refused to pay him fully for his loss. Id.
at 6 ¶¶ 17–18.
B. Procedural History
On July 26, 2023, Mr. Ramos filed his Complaint in Connecticut Superior Court Judicial
District of New Haven. Compl.
On August 18, 2023, AmGuard removed the case to this Court. Not. of Removal, ECF
No. 1 (Aug. 18, 2023).
On May 5, 2023, AmGuard filed its Answer. Answer, ECF No. 16 (Aug. 30, 2023)
(“Answer”).
On October 20, 2023, AmGuard filed a motion for judgment on the pleadings. Mot.;
Mem. of L. in Support of Mot. for J. on the Pleadings, ECF No. 19-1 (Oct. 20, 2023) (“Mem.”).
On November 10, 2023, Mr. Ramos filed a memorandum of law in opposition to
Defendant’s motion for judgment on the pleadings. Mem. of L. in Opp’n to Mot. for J. on the
Pleadings, ECF No. 20 (Nov. 10, 2023) (“Opp’n”).

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As Mr. Ramos’s Complaint does not use consecutive numbering, the Court will cite to the Complaint by page and
paragraph number.

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On November 24, 2023, AmGuard filed a reply in support of its motion for judgment on
the pleadings. Reply in Support of Mot. for J. on the Pleadings, ECF No. 21 (Nov. 24, 2023)
(“Reply”).

II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(c), “after the pleadings are closed—but early

enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). In deciding a motion for judgment on the pleadings, the Court applies the same standard
applicable to motions to dismiss brought under Federal Rule of Civil Procedure 12(b)(6). Hayden
v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Accordingly, the “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Id. A court must accept as true all factual allegations in the complaint and draw all possible
inferences from those allegations in favor of the plaintiff. See York v. Ass’n of the Bar of the City
of New York, 286 F.3d 122, 125 (2d Cir.), cert. denied, 537 U.S. 1089 (2002). The issue is not
whether the plaintiff ultimately will prevail, but whether the plaintiff has stated a claim upon
which relief may be granted, such that it should be entitled to offer evidence to support its claim.
See id. (citation omitted).
While a court must accept as true the allegations in a complaint, this requirement “is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although
“detailed factual allegations” are not required, a complaint must offer more than “labels and
conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked
assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).

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In determining a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c), “the court may consider any of the pleadings, including the complaint, the
answer, and any written instruments attached to them.” 2 Moore’s Federal Practice 3D § 12.38
(2016); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (explaining
that a court need not convert a motion to dismiss into a motion for summary judgment when it
considers “‘any written instrument attached to [the complaint] as an exhibit or any statements or
documents incorporated in it by reference’” and noting that “[e]ven where a document is not
incorporated by reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint”)
(quoting Int’l Audiotext Network, Inc. v. am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995))).
Motions for judgment on the pleadings are especially appropriate in contract cases, where
the case turns on legal interpretations of the obligations of the parties. Ricatto v. M3 Innovations
Unlimited, Inc., No. 18 CIV. 8404 (KPF), 2019 WL 6681558, at *4 (S.D.N.Y. Dec. 6, 2019). “If
the allegations of a pleading ‘are contradicted by documents made a part thereof, the document
controls and the court need not accept as true the allegations of the [pleading].’” Id. (quoting In
the Matter of the Trusteeships Created by Tropic CDO I Ltd., 92 F. Supp. 3d 163, 171 (S.D.N.Y.
2015)). “If the contract is unambiguous, the Court may award judgment on the pleadings,
assuming no material facts are in dispute.” Neopharm Ltd. v. Wyeth-Ayerst Int’l LLC, 170 F.
Supp. 3d 612, 615 (S.D.N.Y. 2016).

III.

DISCUSSION
AmGuard argues that the second and third counts, for negligence and CUTPA/CUIPA

violations respectively, fail to state a claim upon which relief can be granted and should be

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dismissed under Rule 12(c) of the Federal Rules of Civil Procedure. Mem. at 6.
The Court will address the second and third counts of the Complaint in turn.
A. The Negligence Claim
“An action in contract is for the breach of a duty arising out of a contract; an action in tort
is for a breach of duty imposed by law.” Gazo v. City of Stamford, 765 A.2d 505, 515 (Conn.
2001). “It is true, of course, that out of a contractual relationship[,] a tort liability, as in
negligence, may arise.” Id. at 515 (quoting Kaplan v. Merberg Wrecking Corp., 207 A.2d 732,
736 (Conn. 1965)).
“The essential elements of a cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury.” Doe v. Saint Francis Hosp. & Med. Ctr., 72
A.3d 929, 947 (Conn. 2013) (quoting Ryan Transportation, Inc. v. M & G Associates, 832 A.2d
1180, 1184 (Conn. 2003)).
AmGuard argues that Mr. Ramos’s negligence cause of action is based wholly on the
alleged breach of contract and that the Complaint fails to allege even threadbare recitals of the
elements of negligence. Mem. at 8.
In response, Mr. Ramos urges the Court to resolve a split of authority and find that the
economic loss doctrine does not bar tort claims brought by an individual policyholder, and thus
allowing him to maintain a negligence claim arising from a contract claim against an insurance
company. Opp’n at 4–5. Mr. Ramos further argues that his negligence claim is separate and
distinct from his breach of contract claim. Id. at 3.
The Court disagrees.
Though the Connecticut Supreme Court has not directly answered this question, it has
made clear that “[u]nless a particular conflict between the rules of contract and tort requires

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otherwise, a plaintiff may choose to proceed in contract, tort, or both.” Stowe v. Smith, 441 A.2d
81, 84 (Conn. 1981). Additionally, both the District of Connecticut and several Connecticut
Superior Courts have recognized negligence claims in cases concerning denial of coverage. See
Corner House Condo. Ass’n v. State Farm & Cas. Co., No. HHD-CV-13-6068831-S, 2018 WL
2418969, at *3 (Conn. Super. Ct. May 10, 2018) (denying motion to strike a negligence claim
against an insurance company for refusing to fully compensate the plaintiff for the damage to
their property); Smith v. Home State Ins. Co. Spc., No. 3:10-CV-1046 (RNC), 2013 WL
12284914, at *1 (D. Conn. Mar. 31, 2013) (denying summary judgment where an insurance
company alleged that plaintiff could not recover on a theory of negligence against the company);
Afifi v. Standard Fire Ins. Co., No. NNH-CV-11-6017083-S, 2011 WL 5307371, at *3–4 (Conn.
Super. Ct. Oct. 21, 2011) (explicitly rejecting the argument that a negligence claim could not be
brought against the insurance company, because a duty of care may arise); Razor’s Auto Body &
Servs., LLC, CV-09-5010129S, 2009 WL 2872848, at *2 (Conn. Super. Ct. Aug. 11, 2009)
(permitting both negligence and breach of covenant of good faith and fair dealing claims to
proceed in a case concerning denial of coverage) (quoting Hutchinson v. Farm Fam. Cas. Ins.
Co., 867 A.2d 1, 7 n.4 (Conn. 2005)).
Thus, the Court turns to whether Mr. Ramos has sufficiently alleged the elements of a
negligence claim.
In his Complaint, Mr. Ramos realleged the facts alleged in the first count—the breach of
contract claim—and alleges the following additional facts:
AmGUARD was negligent in the adjustment and handling of the
Claim in that:
a. It negligently hired, monitored, and/or supervised its
agents, servants, and employees who conducted
inspections, appraisals, and evaluations of the subject
premises and the damages associated with the Plaintiff’s
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loss. Specifically, AmGUARD negligently supervised
its agents, servants, and employees who evaluated the
loss in that it did not adequately or timely perform postloss inspections, and respond to the Plaintiff concerning
the August 22, 2022 Claim.
b. It failed to timely respond to and assist the Plaintiff.
c. It failed to take steps to ensure that the premises would
not become further damaged.
d. It negligently created issues in an effort to try and find a
basis in the policy to not pay the Claim.
Compl. at 6 ¶ 15. Mr. Ramos also alleges that he was “damaged and harmed” as a result of
AmGuard’s negligence. Id. ¶ 16.
Mr. Ramos has not alleged any duty—contractual, statutory, or otherwise—but rather, he
asserts that AmGuard was negligent in the handling of his claim and that he was harmed by that
negligence. In failing to allege any duty owed to him by AmGuard, Mr. Ramos has failed to
sufficiently allege a negligence claim. Cf. Rose v. United Prop. & Cas. Ins. Co., No. 3:21-CV01217 (VAB), 2022 WL 4115635, at *7 (D. Conn. Sept. 9, 2022) (finding moot “any arguments
concerning Plaintiffs’ failure to sufficiently allege all of the elements of a negligence claim”
where the plaintiffs added allegations to their proposed Amended Complaint that the defendant
owed its insureds a duty of good faith, among other things); see also id., ECF No. 28-1 ¶¶ 22, 33
(Dec. 16, 2021).
Accordingly, the Court will grant Defendant’s motion for judgment on the pleadings as to
the second count of Mr. Ramos’s Complaint.
B. The CUTPA/CUIPA Claim
A plaintiff may bring a private cause of action under the Connecticut Unfair Trade
Practices Act, “CUTPA,” to enforce alleged violations of the Connecticut Unfair Insurance
Practices Act, “CUIPA.” Kim v. State Farm Fire & Cas. Co., No. 3:15-CV-879 (VLB), 2015
WL 6675532, at *5 (D. Conn. Oct. 30, 2015) (citing Mead v. Burns, 509 A.2d 11, 17–18 (Conn.
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1986)). CUTPA/CUIPA claims “are premised on finding a breach of contract.” Kim v. State
Farm Fire & Cas. Ins. Co., 751 Fed. Appx. 127, 128 n.1 (2d Cir. 2018); Roberts, 264 F. Supp.
3d at 416 (“Similarly, ‘a claim for violation of CUTPA/CUIPA cannot succeed in the absence of
a viable claim for breach of contract.’”); Zulick v. Patrons Mut. Ins. Co., 949 A.2d 1084, 1091
(Conn. 2008) (“The foregoing analysis disposes of the plaintiffs’ claim that the trial court
improperly rendered summary judgment in favor of the defendant on the plaintiffs’ CUTPA and
CUIPA claims. Because we have concluded that the defendant’s interpretation of the policy’s
coverage limitation was correct, there can be no genuine issue of material fact as to whether the
application of that interpretation as a general business practice constituted oppressive, unethical
or unscrupulous conduct in violation of the statutes.”).
In determining whether a practice violates CUTPA, the criteria set out in the Federal
Trade Commission’s so-called cigarette rule guides the inquiry:
(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].’
Zulick, 949 A.2d at 1092 n.11 (quoting Ventres v. Goodspeed Airport, LLC, 881 A.2d 937, 969
(Conn. 2005)).
“CUIPA identifies and prohibits a number of ‘unfair methods of competition and unfair
and deceptive acts or practices in the business of insurance.’” Kim, 2015 WL 6675532, at *5
(citing Conn. Gen. Stat. § 38a-316.) “Among these are ‘[u]nfair claim settlement practices’ such
as ‘not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in
which liability has become reasonably clear.’” Id. (quoting Conn. Gen. Stat. § 38a-316(6)(F)).
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To prevail on a CUIPA claim, a plaintiff must show that “the unfair settlement practice was
committed or performed with such frequency as to indicate a general business practice.”
McCulloch v. Hartford Life & Accident Ins. Co., 363 F. Supp. 2d 169, 182 (D. Conn. 2005).
AmGuard argues that Mr. Ramos failed to allege that AmGuard’s engaged in proscribed
conduct with sufficient frequency to indicate general business practice and that Mr. Ramos was
subjected to said conduct. Mem. at 10–11.
In response, Mr. Ramos argues that he intends to further develop this claim through the
discovery process, however, he has alleged the necessary elements of a CUTPA/CUIPA claim.
Opp’n at 7.
The Court disagrees.
In his Complaint, Mr. Ramos alleges the following:
AmGUARD has committed, and continues to commit, the acts
referred to below as to the Plaintiff and as to other AmGUARD
insureds and policyholders with such frequency as to constitute a
general business practice of insurance misconduct in violation of
CUPIA [sic] which violation constitutes a CUTPA violation:
a. Misrepresenting pertinent facts at issue with respect to
the Claim and with respect to policyholders which arise
under insurance policies issued by AmGUARD.
b. Failing to acknowledge and act with reasonable
promptness upon communications with respect to the
Claim and with respect to the claims of other
policyholders which arise under insurance policies
issued by AmGUARD.
c. Failing to adopt and implement reasonable standards for
the prompt investigation of claims arising under
insurance policies with respect to the Plaintiff's Policy
and with respect to policies issued to other AmGUARD
policyholders.
d. Refusing to pay claims and not conducting a reasonable
investigation based upon all available information with
respect to the Claim and with respect to claims of other
policyholders which arise under AmGUARD issued
insurance policies.
e. Failing to act in good faith to effectuate prompt, fair, and
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f.

g.
h.

i.
j.

k.
l.

equitable settlements of claims in which liability has
become reasonably clear with respect to the Claim and
with respect to claims of other AmGUARD
policyholders arising under AmGUARD policies.
Conducting an investigation with a view towards
ignoring evidence or information which would tend to
show that the Claim and claims of other policyholders
which arise under AmGUARD issued insurance policies
should be paid and honored.
Focusing on creating, fabricating, or trying to obtain
information to deny or delay the payment of the Claim
and claims of other policyholders.
Compelling insureds, including Plaintiff, to institute
litigation or other proceedings to recover amounts due
under an insurance policy by substantially underpaying
the claims.
Failing to comply with reasonable requests for
information requested by the Plaintiff or their agents and
other insurers or their agents.
Unduly narrowly interpreting insurance policy
provisions in an effort to delay or deny claims instead of
analyzing such provisions with a view toward being fair
and reasonable to its insureds.
Withholding pertinent information in an effort to use said
information as grounds to delay or ignore the Claim and
the claims of other policyholders.
Failing to conduct a reasonable investigation based upon
all available information with respect to the Claim and
with respect to the claim of other policyholders.

Compl. at 8–10 ¶ 22. Mr. Ramos also cites to seven lawsuits alleging that it evidences the
frequency at which AmGuard has committed the alleged acts. Id. at 10–11 ¶ 23.
Mr. Ramos asserts twelve CUIPA violations, six of which are generally recitations of the
unfair settlement practices enumerated in Conn. Gen. Stat. §§ 38a-816(6)(A)–(D), (F), (G). And
none of the twelve allegations of misconduct “allege specific conduct Defendant engaged in
corresponding with each violation.” Bilyard v. Am. Bankers Ins. Co. of Fla., No. 3:20CV1059
(JBA), 2021 WL 4291173, at *3 (D. Conn. Sept. 21, 2021).
In his Complaint, Mr. Ramos alleged that he “ha[d] diligently satisfied his obligations

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under the Policy, following up and attempting to communicate with AmGUARD via emails and
phone calls, providing AmGUARD with the requested information, and attempting to resolve
this matter[,]” but that Defendant had “fail[ed] to act in good faith and adequately respond to the
Plaintiff.” Compl. at 6 ¶¶ 14–16. This, however, adds little more to the statutory language in §§
38a-816(6)(B) and (F). And Mr. Ramos’s “CUIPA claim must allege not only that Defendants
engaged in a business practice of prohibited conduct as defined by the statute but also that
Defendant subjected him to that conduct.” Bilyard., 2021 WL 4291173, at *4.
Additionally, in Belz v. Peerless Ins. Co., the court identified factors to be considered in
determining whether a plaintiff has made facially plausible factual allegations of a general
business practice. 46 F. Supp. 3d 157, 166 (D. Conn. 2014) (“Relevant factors may include: the
degree of similarity between the alleged unfair practices in other instances and the practice
allegedly harming the plaintiff; the degree of similarity between the insurance policy held by the
plaintiff and the policies held by other alleged victims of the defendant’s practices; the degree of
similarity between claims made under the plaintiff’s policy and those made by other alleged
victims under their respective policies; and the degree to which the defendant is related to other
entities engaging in similar practices.”). Mr. Ramos, however, has not set forth the factual
allegations necessary to assess any of these factors—in other words, assess the similarity
between the conduct that Mr. Ramos’s alleges that he faced and the conduct by the alleged
victims in the cases Mr. Ramos includes in his Complaint. See also Klaneski v. State Farm Mut.
Auto Ins. Co., No. 3:22-cv-1456 (VAB), 2023 WL 4304928, at *7 n.2 (noting that courts in this
District have dismissed CUIPA/CUTPA claims that might survive in state court because of the
application of “the standard announced in Iqbal and Twombly, which requires more than the bare
conclusory allegations accepted by the state court.” (citation and internal quotation marks

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omitted)).
Accordingly, the Court will grant Defendant’s motion for judgment on the pleadings as to
the third count of Plaintiff’s Complaint.
IV.

CONCLUSION
For the reasons explained above, the Court GRANTS Defendant’s motion for judgment

on the pleadings.
To the extent that Mr. Ramos can remedy the deficiencies in the factual allegations in his
Complaint, he may move for leave to amend the Complaint by September 20, 2024.
If no proposed amended pleading is filed by that date, the Court will dismiss the Second
and Third Counts of Mr. Ramos’s Complaint.
SO ORDERED at New Haven, Connecticut, this 30th day of August, 2024.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

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