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Macomber v. Travelers Property and Casualty Corp.9/3/2002
is true as to all facts which are open to discovery upon reasonable inquiry.'' (Internal quotation marks omitted.) Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977). A duty to disclose will be imposed, however, ''on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.'' (Internal quotation marks omitted.) Id. Based on the plaintiffs' allegations that Travelers Casualty made affirmative misrepresentations as to the cost of the annuities, we conclude that, whether Travelers Casualty had a duty to disclose its agreements with various annuity brokers so that the plaintiffs could make an informed decision regarding whether to accept Travelers Casualty's annuity offer, and if so, whether it violated that duty, are questions of mixed fact and law that would require a more detailed factual matrix than is disclosed by the plaintiffs' allegations. Because such a factual basis is not present, these questions cannot be answered satisfactorily on this motion to strike. Although we agree with the trial court that, as a general proposition, an insurer has no duty to disclose its actual cost in purchasing an annuity, in this case, given the plaintiffs' allegations, such a duty may have arisen. Suffice it to say that the allegations are sufficient to withstand the defendants' motion to strike.
Turning to the short-changing allegations, the defendants contend that the plaintiffs ''cannot demonstrate how [Travelers Casualty's] alleged reduced 'cost' in purchasing annuities somehow translates into additional value that plaintiffs should have received in their settlements.'' In other words, the defendants assert, because the plaintiffs still will receive the same income stream to which they previously agreed, they have not been harmed. This argument fails to acknowledge, however, that the plaintiffs have alleged that Travelers Casualty agreed to do two things: (1) purchase an annuity that would provide designated periodic payments; and (2) spend an agreed upon amount to purchase that annuity. Consequently, even if Travelers Casualty is making the agreed upon payments, it still has breached its agreement with the plaintiffs to spend a certain amount on the annuity. As explained previously, under this scenario, the plaintiffs may be entitled to damages calculated on the basis of a larger annuity, in both cost and income stream, and to the amount that the plaintiffs spent in excess attorneys' fees.
II.
Although we have determined that the plaintiffs' allegations can be read so as properly to state a claim for relief, the defendants have asserted alternate grounds of affirming the motion to strike as to each count. We turn, therefore, to an examination of each of the defendants' alternate grounds.
A. Count One
In count one of their complaint, the plaintiffs asserted that they enjoyed a contractual relationship with the defendants that gave rise to a duty of good faith and fair dealing. The plaintiffs further asserted that the defendants, in engaging in the conduct that we previously have described, breached that duty. Upon reviewing the entire complaint, however, we conclude that the plaintiffs have failed to plead sufficient facts to support this cause of action.
''It is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984); see also 2 Restatement (Second), Contracts ยง 205 (1979) (' very contract imposes upon each party a duty of good faith and fair dealing in its performance and its
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