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Macomber v. Travelers Property and Casualty Corp.9/3/2002
uity and retained the remaining $97.49 without notifying Huaman. As with the rebating allegations, the plaintiffs did not allege that Huaman owned or was ever in possession of any portion of the $6667 that Travelers agreed to spend for her annuity. The plaintiffs also did not point to specific, identifiable money to which they had a right of possession. Consequently, the plaintiffs' conversion count regarding the short-changing scheme must be stricken.
I. Count Ten
Count ten of the plaintiffs' complaint alleged that the '' efendants will be unjustly enriched if they are allowed to retain the monies derived from their wrongful conduct.'' The defendants claim that this count should be stricken because the ''plaintiffs do not allege (as they must) how they were misled or harmed in any material way . . . .'' As we explained in part I of this opinion, the plaintiffs' allegations sufficiently stated a legally cognizable claim for damages. Therefore, count ten of the plaintiffs' complaint is sufficient to survive a motion to strike.
III.
Finally, the defendants assert that, even if this court denies their motion to strike the complaint in its entirety, the claims as to Travelers Group and Smith Barney should be stricken because the plaintiffs have not alleged any facts to support their allegations against these two defendants. As to Smith Barney, the defendants contend that the plaintiffs failed to allege that either of their structured settlements was entered into during the time period that Smith Barney allegedly had a commission sharing arrangement with Travelers Casualty, namely, from 1994 to the present. With respect to Travelers Group, the defendants claim that the ''plaintiffs do not identify any action (or inaction) on the part of [Travelers Group]'' other than being the corporate parent for the other defendants. We disagree with the defendants' characterization of the plaintiffs' allegations.
Turning first to Smith Barney, the plaintiffs alleged that Smith Barney entered into a commission sharing arrangement with Travelers Casualty in January, 1994. The plaintiffs further alleged that Huaman's ''settlement was embodied in, among other things, a September 27, 1994, Infant Compromise Order'' entered by a New York court. Lastly, the plaintiffs' complaint alleged that Smith Barney was the insurance broker that collected and forwarded to Travelers Casualty a portion of the rebate it received from arranging Huaman's annuity. Given these statements, the plaintiffs properly have alleged that Smith Barney was involved in procuring Huaman's structured settlement for Travelers Casualty.
As for the claims against Travelers Group, the plaintiffs alleged that, as part of the rebating scheme, '' otwithstanding the obvious encouragement to sell annuities, [Travelers Casualty, Travelers Annuity, and Travelers Group] instructed claims adjusters to avoid the use of certain phrases when selling annuities in a blatant effort to avoid the consequences which might result from the acknowledgement of the conduct which adjusters were encouraged to engage in.'' Contrary to the defendants' assertion, the plaintiffs have alleged specific action on the part of Travelers Group to further the rebating scheme alleged by the plaintiffs. Consequently, we find no merit to the defendants' argument that the counts against Smith Barney and Travelers Group should be stricken.
The judgment is reversed with respect to counts three, four, six, seven, eight and ten of the plaintiffs' complaint and the case is remanded to the trial court with direction to deny the motion to strike as to those counts, and for further proceedings according to law; the judgment is affirmed
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