Perry v. Gov't Emps. Ins. Co.

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JEFFREY PERRY, Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, and AMY MARINACCIO, Defendants.

No. 3:22-cv-910 (KAD)

United States District Court, D. Connecticut

July 2, 2024

MEMORANDUM OF DECISION RE: MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (ECF NO. 96)

KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE

This negligence action arises out of the procurement of insurance by Plaintiff Jeffrey Perry (“Perry” or “Plaintiff”) from Defendant Government Employees Insurance Company (“GEICO”) through its agent Defendant Amy Marinaccio. Plaintiff seeks leave to amend his complaint to update the extent of his injuries, to add factual allegations learned through discovery, and to add a cause of action under the Connecticut Unfair Trade Practices Act (“CUTPA”) premised upon violations of the Connecticut Unfair Insurance Practice Act (“CUIPA”) as well as a common law claim for negligent misrepresentation. Defendants oppose the motion. For the reasons that follow, the motion for leave to amend is GRANTED in part. (ECF No. 96)

Standard of Review

A plaintiff may amend his complaint once as a matter of right within twenty-one days after service of the complaint or, if a responsive pleading is required, within twenty-one days after service of the responsive pleading. Fed.R.Civ.P 15(a)(1); Blaine v. UConn Health Care, No 3:18-cv-00359 (MPS), 2018 WL 3448165, at *1 (D. Conn. July 17, 2018). In all other cases, the plaintiff may amend his complaint with consent of the defendant or with the Court's leave.

Fed.R. Civ. P. 15(a)(2). Generally, leave to amend should be “freely give[n].” Id.; accord Foman v. Davis, 371 U.S. 178, 182 (1962). However “[l]eave may be denied for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” TechnoMarine SA v. Giftports Inc., 758 F.3d 493, 505 (2d Cir. 2014) (internal quotation marks omitted). “An amendment is considered futile if the amended pleading . . . would be subject to a successful motion to dismiss.” Faryniarz v. Ramierz, 62 F.Supp.3d 240, 249 (D. Conn. 2014) (quotation marks omitted).

Allegations and Procedural History

The Court assumes the parties' familiarity with the underlying allegations and repeats only those necessary for deciding the instant motion. Perry is a customer of and is insured by GEICO. On or about April 13, 2020, Perry contacted GEICO because he was purchasing a new car which would be registered in Connecticut. He sought to consult with a licensed insurance agent to evaluate his coverage needs. Perry spoke to Amy Marinaccio, a GEICO employee and licensed insurance agent, who advised him regarding his automobile coverage.

GEICO advertises that it specializes in insurance “customized to fit you,” that it provides customers with all the automobile insurance that they need, and that its agents are “here to help you get the type of insurance you need,” encourages its customers to “contact one of our local insurance agents in Fairfield County” because “GEICO Insurance Agents in Connecticut offer sound, professional advice . . . to help you find the right coverage for your needs,” and those agents could help customize a policy that includes carrying “higher limits for extra protection.”

On June 7, 2020, Perry was in a car accident with an underinsured motorist and suffered serious injuries. Perry's limited uninsured/underinsured motorist coverage as well as his umbrella/excess insurance coverage were inadequate to compensate him for his injuries. The operative Amended Complaint includes claims of negligence against both Defendants.

Perry now seeks to amend his Amended Complaint to provide additional facts regarding his injuries as well as GEICO's advertising during the relevant time period. Perry also seeks to add a CUTPA/CUIPA count and a negligent misrepresentation count based upon the now expanded allegations of deceptive and misleading advertising. Other than the updated allegations regarding Perry's injuries, the new factual allegations were learned through discovery, in part following Magistrate Judge Garcia's order granting Perry's motion to compel, as well as through Defendant Marinaccio's deposition.

Discussion

Defendants object to the amendments as untimely and argue that Plaintiff has not shown good cause to amend at this late juncture, and asserts, in the alternative, that the amendments are futile because the alleged misrepresentations-mere puffery-fail to state a viable CUTPA/CUIPA violation, and because negligent misrepresentation shares the same elements and allegations as the CUIPA claims, that claim is likewise futile. Defendants also argue that the amendment would be unduly prejudicial to them.

First the Court concludes that Plaintiff has demonstrated good cause for the amendments because he acted with reasonable diligence in obtaining the information. See Borozny v. Raytheon Techs. Corp., Pratt & Whitney Div., No. 3:21-cv-1657 (SVN), 2023 WL 7037523, at *2, *7 (D. Conn. Oct. 26, 2023) (rejecting claim that plaintiffs could have been more diligent in investigating publicly available information where plaintiffs sought to amend following resolution of a discovery dispute). Here, Plaintiff acted diligently in moving to amend after learning new facts based on discovery produced by Defendants and shortly after the deposition of Defendant Marinaccio. Additionally, some of the discovery that supports Plaintiff's proposed amendments was turned over after Plaintiff's successful motion to compel. See id. (“Defendants cannot delay production of discovery and then fault Plaintiffs for acting late”). Plaintiffs' motion for leave to amend will therefore not be denied for any lack of diligence on his part.

The Court also finds that Defendants will not be unduly prejudiced by the proposed amendments, because the Amended Complaint already contains allegations concerning GEICO's allegedly misleading advertising. The proposed amendment, though expanding the nature and scope of those allegations, includes information that has always been known to GEICO. The Court also concludes that it is not unduly prejudicial for Plaintiffs to add a claim for which attorneys' fees and/or punitive damages can be awarded. Cf. Stein v. Needle, No. 3:19-cv-1634 (VLB), 2021 WL 5889343 at *3 (D. Conn. December 13, 2021) (increased exposure alone not a justification for denial for leave to amend). Although GEICO is exposed to a greater claim for damages, the core nature of the suit remains the same.

As to Defendants' claim that the proposed amendment is futile because Plaintiff cannot plausibly allege a CUTPA/CUIPA violation or a negligent misrepresentation claim, the Court agrees, but only in part.

Although CUIPA itself does not provide for a private right of action, “[a] plaintiff may assert a private cause of action based on a substantive violation of CUIPA through CUTPA's enforcement provision.” Belz v. Peerless Ins. Co., 46 F.Supp.3d 157, 165 (D. Conn. 2014) (quotations omitted). “To succeed in such a CUTPA claim, a plaintiff must show that the defendant engaged in an act prohibited by CUIPA's substantive provisions, and that the act proximately caused the harm alleged.” Id. at 165 (citing McCulloch v. Hartford Life and Accident Ins. Co., 363 F.Supp.2d 169, 181 (D. Conn. 2005)). Plaintiff's proposed Count Three alleges a violation of CUIPA, specifically, violations of Conn. Gen. Stat. § 38a-816(1)(a) and Conn. Gen. § 38a-816(2). Plaintiff also seeks to add a common law claim for negligent misrepresentation.

“Section 38a-816(1) prohibits misrepresentations and false advertising of insurance policies. Section 38a-816(2) prohibits false information and advertising generally.” Heyman Associates No. 1 v. Insurance Co. of State of Pa., 231 Conn. 756, 794, 653 A.2d 122 (1995). The Connecticut Supreme Court has held that to allege a violation of § 38a-816(1)(a), a plaintiff must allege the elements of negligent misrepresentation: “(1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.” Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626 (2006).^[1]And, specifically, Plaintiff must:

[A]llege which benefit, advantage, condition, or term of the [specific policy] the Defendant has misrepresented or how the Defendant has actually misrepresented that specific policy benefit or provision directly or through a false advertisement. The need to identify a specific policy benefit or provision is manifest under the plain language of the statute.

Thomas v. Vigilant Ins. Co., 594 F.Supp.3d 499, 514-15 (2022).

Plaintiff argues that GEICO negligently misrepresented to the public at large the scope and applicability of its umbrella coverage and that the umbrella coverage Plaintiff obtained did not provide the coverage as advertised. Plaintiff does not cite the Court to any authority approving a claim under § 38a-816(1)(a) for misrepresentations about a specific policy premised on statements made to the public at large. To the contrary, Connecticut courts have consistently held that § 83-816(1)(a) applies to situations in which a misrepresentation was made to the insured directly about the policy being procured, while § 83a-816(2) applies to misrepresentations disseminated to the public. See, e.g., Thomas, 594 F.Supp.3d at 514 (holding that “Plaintiff has failed to allege which benefit, advantage, condition, or term of the Masterpiece Policy that Defendant misrepresented or falsely advertised or how the Defendant has actually misrepresented that specific policy benefit or provision directly or through a false advertisement”) (emphasis added); Meneo v. Sound Fin. Grp.,...