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Macomber v. Travelers Property and Casualty Corp.9/3/2002
because ''it received undisclosed rebates in connection with the purchase of the annuity used to fund the structured settlement.'' The plaintiffs also alleged that, even before receiving any rebate, Travelers Casualty paid Travelers Annuity $6569.51, not $6667, for the previously described structured settlement.
Contending that the defendants' rebating and short changing schemes were illegal, the plaintiffs brought this ten count complaint. The plaintiffs alleged that they had entered into structured settlements with the defendants ''under materially false and misleading circumstances because defendants misrepresented the fundamental nature and terms of the structured settlements'' by failing to disclose the actual cost and true value of the structured settlements to the plaintiffs after taking into account the rebating and short-changing schemes. The plaintiffs specifically alleged that, had the defendants disclosed these practices, they would not have agreed to the structured settlements as configured, but would have negotiated for higher settlement amounts.
The plaintiffs complaint sounded in the following nine counts against all of the defendants alleging: (1) breach of the implied duty of good faith and fair dealing; (2) breach of fiduciary duty; (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (4) violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-316; (5) fraud; (6) negligent misrepresentation; (7) civil conspiracy; (8) conversion; and (9) unjust enrichment. Additionally, a tenth count sounded against Travelers Casualty only, alleging breach of contract. The defendants moved to strike the plaintiffs' complaint in its entirety, arguing that the plaintiffs had failed to assert a legally cognizable injury . The trial court granted the defendants' motion, concluding that '' ach of the counts of the omplaint must fail because, regardless of how the plaintiffs choose to characterize the defendants' conduct, they have not asserted that they suffered any damage because they received the exact amounts which they agreed to and expected to receive under the structured settlement agreements. . . . he suffering of some damage by the plaintiffs is a necessary element of all causes of action alleged in the omplaint.'' The plaintiffs did not amend their complaint, and the trial court rendered judgment for the defendants striking the complaint. This appeal followed.
I.
The first issue that we must decide is whether the trial court improperly concluded that the plaintiffs did not allege any redressable harm. The plaintiffs contend that the trial court improperly struck their complaint because it focused only on the income stream that the plaintiffs had negotiated to receive and had failed to consider that the payment plan that the plaintiffs had agreed to ''was induced by a representation as to its cost, and that the cost was not accurately reported to the plaintiffs in good faith.'' We agree.
Wenote first that, in deciding this appeal, we consider only whether the trial court properly determined that the plaintiffs had failed to allege any cognizable damages. Therefore, we do not consider, for example, whether the plaintiffs can prove that in fact they had been harmed. In other words, we do not consider whether the defendant in fact had made any misrepresentations as to the cost of the annuity; whether, but for such misrepresentation, the plaintiffs would not have accepted the settlements; and whether, as a result of the alleged misrepresentations, the plaintiffs have received an annuity with a reduced value and a reduced income stream resulting therefrom.
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