DUPONT, J.
The plaintiff, Helyn Byrd, appeals from the judgment rendered by the trial court in favor of the defendants, Wendelynne Ortiz and Nationwide Insurance Company of America (Nationwide), after the court granted the defendants' motion to strike all four counts of the plaintiff's revised complaint. The sole issue on appeal is whether the court improperly granted the motion to strike as to counts one and three of the revised complaint alleging claims of negligence.
The following facts, as alleged in the revised complaint, are relevant to our resolution of the issue on appeal. In July, 2005, the plaintiff contacted Ortiz, a licensed insurance agent employed and authorized by Nationwide to sell insurance policies on its behalf, about purchasing an automobile insurance policy for her two vehicles. Ortiz advised the plaintiff to purchase a Nationwide automobile insurance policy with bodily injury liability coverage in the amount of $20,000 per person
In 2009, while riding as a passenger in a vehicle insured under the policy, the plaintiff was involved in an accident with another motor vehicle. The plaintiff brought a claim against the owners of the other vehicle for injuries and damages she sustained as a result of the accident. The owners of the other vehicle maintained automobile insurance with bodily injury liability coverage in the amount of $100,000 per person. The plaintiff settled her claim against the owners for the owners' policy limit of $100,000. The plaintiff alleges that the value of the injuries and damages she sustained exceeded $100,000, and, as a result of Ortiz' negligence in failing to advise the plaintiff properly or to inquire of her about the appropriate amount of uninsured/underinsured motorist coverage, she was without sufficient underinsured motorist coverage to compensate her for her losses.
On November 3, 2010, the plaintiff filed her revised, four count complaint against the defendants, alleging claims of negligence and breach of fiduciary duty. On November 19, 2010, the defendants filed a motion to strike all four counts of the revised complaint. On December 10, 2010, the plaintiff filed an objection to the defendants' motion with respect to counts one and three, alleging claims of negligence. The court heard oral argument on December 13, 2010. In a memorandum of decision dated March 21, 2011, the court granted the defendants' motion to strike, concluding that the revised complaint failed to state a cause of action for negligence because it did not allege fraud or any other inequitable conduct. Thereafter, on May 3, 2011, the court rendered judgment in favor of the defendants. This appeal followed.
The plaintiff claims that the court improperly granted the defendants' motion to strike her claims for negligence. Specifically, the plaintiff argues that (1) the court's reliance on Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 602 A.2d 1007 (1992) was improper and (2) counts one and three of the revised complaint alleged facts sufficient to withstand the defendants' motion to strike. We agree.
"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling... is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint
The plaintiff argues that the trial court's reliance on Harlach, as a ground upon which to grant the defendants' motion to strike her claims for negligence, was improper. We agree.
In its memorandum of decision granting the defendants' motion to strike, the court adopted the defendants' interpretation of Harlach, citing Harlach for the proposition that when a client is aware of the amount of insurance coverage being procured, the client must allege fraud or inequitable conduct to sustain a cause of action for negligence against an insurance agent or insurance company for the agent's failure to recommend sufficient insurance coverage to the client.
In Harlach, our Supreme Court's discussion of the need for fraud or inequitable conduct was confined to its consideration of whether the equitable principle of reformation was available to negate the plaintiff policyholder's written request, to the defendant insurance company, for a lesser amount of uninsured motorist coverage. Harlach v. Metropolitan Property & Liability Ins. Co., supra, 221 Conn. at 186, 190-91, 602 A.2d 1007. The Harlach court stated: "The defendant argues that the trial court has reformed the contract that unambiguously provided uninsured motorist coverage of $20,000 per person and $40,000 per accident because the policyholder
In the present case, the plaintiff's action is not for reformation of a contract of insurance but for negligence; specifically, the insurance agent's failure to inquire into or to advise the plaintiff properly of the sufficient amount of insurance coverage. Harlach is not applicable. We conclude, therefore, that it was improper for the trial court to strike counts one and three of the revised complaint on the ground that those counts did not allege fraud or inequitable conduct.
The plaintiff next claims that counts one and three of the revised complaint state legally sufficient claims for negligence because those counts allege that Ortiz had a duty to exercise reasonable skill, care and diligence to ensure that the plaintiff had proper insurance coverage, that Ortiz breached that duty by not advising the plaintiff to obtain sufficient uninsured/underinsured motorist coverage and that the plaintiff sustained damages as a result of the breach. The defendants maintain that the revised complaint does not state legally cognizable claims for negligence because an insurance agent has no duty to advise an insured of the sufficiency of insurance coverage. Examination of the applicable law and the facts alleged in the revised complaint leads us to conclude that counts one and three allege facts that are legally sufficient to maintain a cause of action for negligence, and thereby to avert the granting of a motion to strike.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... If a plaintiff cannot prove all of those elements, the cause of action fails." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).
"The existence of a duty of care is a prerequisite to a finding of negligence.... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citations omitted; internal quotation marks omitted.) Lachowicz v. Rugens, 119 Conn.App. 866, 868, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).
The duty of care owed by an insurance agent to his or her client in advising the client on matters of insurance coverage was articulated by this court in Dimeo v. Burns, Brooks & McNeil, Inc., 6 Conn.App. 241, 504 A.2d 557, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986). "An insurance agent has the duty to exercise reasonable skill, care and diligence to see that his client has proper [insurance] coverage.... Where [the agent] undertakes to procure a policy affording protection against a designated risk, the law imposes
In Dimeo, this court considered the duty owed by an insurance agent to her client where the client, in an action against the agent and the insurance company, alleged, inter alia, that the agent negligently had failed to advise the client to purchase sufficient uninsured/ underinsured motorist coverage. Id., at 242, 504 A.2d 557. On appeal, the client argued that the court's charge to the jury did not adequately define the duty of care the insurance agent owed to the client. Id., at 243-44, 504 A.2d 557. This court reviewed the trial court's charge to the jury and disagreed, finding that the instructions given with respect to the agent's duty of care were "legally correct" and properly "adapted to the issues in the case...." Id., at 245, 504 A.2d 557.
"The court instructed the jury that selling insurance is a specialized field with specialized knowledge and experience, and that an agent has the duties to advise the client about the kind and extent of desired coverage and to choose the appropriate insurance for the client. The court told the jury that the client ordinarily looks to his agent and relies on the agent's expertise in placing his insurance problems in the agent's hands. The court instructed the jury that, if the agent performs these duties negligently, he is liable therefor, just as other professionals are. The court also instructed that the standard of care is not that of ordinary negligence but the knowledge, skill and diligence of insurance agents in Connecticut in [that time period], in similar cases. The court further instructed the jury, on the basis of the expert testimony produced in the case ... that an agent has the duty to explain uninsured motorist coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client. The court concluded this part of the charge by instructing the jury that the proper amount of coverage in this case would have been $300,000. These instructions were legally correct, adapted to the issues in the case, and clearly and fairly presented the case to the jury." (Emphasis added.) Id., at 244-45, 504 A.2d 557.
We are satisfied that Dimeo contains an accurate statement of the duty of care that an insurance agent owes to his or her client in advising the client with respect to uninsured/underinsured motorist coverage. We conclude, as a matter of law, that Ortiz had a duty to explain underinsured/uninsured motorist coverage to the plaintiff, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount of coverage based on the plaintiff's individual circumstances and to attempt to procure that amount of coverage and offer it to the plaintiff.
The facts alleged in counts one and three of the revised complaint allege duty, breach of that duty, causation and actual injury. If provable, these facts would support causes of action for negligence against each defendant. See Angiolillo v. Buckmiller, supra, 102 Conn.App. at 711, 927 A.2d 312. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. at 252, 990 A.2d 206. We conclude, therefore, that the court improperly granted the motion to strike counts one and three of the revised complaint.
The judgment is reversed as to counts one and three of the revised complaint alleging negligence and the case is remanded with direction to deny the motion to strike as to counts one and three and for further proceedings according to law;
In this opinion the other judges concurred.
In Todd v. Malafronte, 3 Conn.App. 16, 22, 484 A.2d 463 (1984), this court held that the duty of care described in Ursini applied to insurance agents as well as insurance brokers. In Dimeo v. Burns, Brooks & McNeil, Inc., supra, 6 Conn.App. at 244-45, 504 A.2d 557, this court cited Todd in articulating the duty of care owed by an insurance agent to his or her client, determining that the trial court had properly charged the jury as to that duty where the jury considered the client's claim that the agent negligently had failed to advise the client to purchase sufficient uninsured/underinsured motorist coverage.
In the present case, we conclude that the plaintiff's allegations are sufficient to withstand the defendants' motion to strike. In so doing, our analysis is confined to whether the facts alleged in the revised complaint, taken as true and in the light most favorable to sustaining their legal sufficiency, establish a cause of action for negligence. See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. at 252-53, 990 A.2d 206. It is axiomatic, however, that the denial of a motion to strike does not conclude the litigation. To prevail on the merits, the plaintiff must prove the facts she has alleged.