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DOCKET NO: FBT-CV21-6110509-S : SUPERIOR COURT
CHARLES DAVIS : J.D. OF FAIRFIELD
V. : AT BRIDGEPORT
PROGRESSIVE CASUALTY : OCTOBER 17, 2022
INSURANCE COMPANY
MOTION TO SEVER AND STAY
Pursuant to Connecticut Practice Book § 15-1 and § 15-2, the Defendant, PROGRESSIVE
CASUALTY INSURANCE COMPANY (“Progressive”), hereby moves to sever and stay Count
Two of the Plaintiff's Complaint dated September 15, 2021, sounding in bad faith and breach of
contract against Progressive, until Count One sounding in underinusred motorist benefits has been
adjudicated.
The Defendant has attached a memorandum of law in support of their position.
The Defendant,
PROGRESSIVE CASUALTY
INSURANCE COMPANY
By:
Johncarlo R. Cinelli, Esq.
Hanks, Olsen & Sheehan
538 Preston Avenue, Suite 305
Meriden, CT 06450
Tel: (203) 427-2160
Juris No.: 419471
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
DOCKET NO: FBT-CV21-6110509-S : SUPERIOR COURT
CHARLES DAVIS : J.D. OF FAIRFIELD
V. : AT BRIDGEPORT
PROGRESSIVE CASUALTY : OCTOBER 17, 2022
INSURANCE COMPANY
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SEVER AND STAY
I. STATEMENT OF FACTS:
The Plaintiff first began the instant lawsuit by writ, summons and complaint dated
September 15, 2021 with a return date of October 26, 2021. Count One of the Complaint is an
action for underinusred motorist benefits regarding a motor vehicle accident on or about August
1, 2020, in which the Plaintiff alleges he sustained injuries.
In Count Two, the Plaitniff, Charles Davis, has alleged breach of contract, and bad faith,
against Progressive. The Plaintiff alleges that the Plaintiff was insured by the Defendant and in
support of alleging breaching its contractual duty of good faith and fair dealing by acting in bad
faith and/or with sinister motive and/or maliciously and/or with willful or reckless indifference to
the rights of the Plaintiff in one or more of the following ways:
a. The Defendant has refused to pay adequate underinsured motorist benefits
owed to the plaintiff under the insurance contract with the intention of
obstructing or injuring the plaintiffs right to recover the same;
b. The Defendant had not offered to pay adequate underinsured motorist
benefits owed to the Plaintiff under the insurance contract, with the
intention of obstructing or injuring the Plaintiff’s right to recover the same;
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
c. The Defendant has purposely delayed the provision of appropriate
underinsured motorist benefits owed to the Plaintiff under the contract, with
the intension of obstructing or injuring the Plaintiff’s right to recover the
same;
d. That although having had proof of the claim, including the Plaintiff’s
damages, harms, and loses, the Defendant has refused to offer the Plaintiff
sufficient and/or adequate benefits under the contract, with the intention of
obstructing or injuring the Plaintiff’s rights to recover the same; and/or
e. That the Defendant purposely did not consider all of the Plaintiff’s medical
records and bills and/or noneconomic damages in order to evaluate the
claim, even though it could have done so, with the intention of obstructing
or injuring the Plaintiff’s rights under contract.
equitable settlement of the Plaintiff’s claim thereby forcing the Plaintiff to
institute litigation before recovering benefits clearly due under the
policy.
20. As a direct and proximate result of the Defendant’s wrongful conduct and
bad faith, the Plaintiff has been damaged and harmed.
See, Plaintiff’s Complaint, Count Two.
The Defendant, Progressive, moves that Count Two of the Complaint be severed
from the immediate claim of Count One and stayed until Count One has been adjudicated, as the
result of the adjudication of the Count One may obviate the need for any adjudication of the
remaining count.
II. LAW AND ARGUMENT
A. The Defendant Moves to Sever and Stay Count Two Pending Resolution of
Count One of the Plaintiff’s Complaint.
Our court has found that “There are no procedural obstacles to bringing bad faith and
Connecticut Unfair Insurance Practices Act/Connecticut Unfair Trade Practices Act claims
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
together with a claim for uninsured motorist benefits.” Powell v. Infinity Ins. Co., 282 Conn. 594,
2007. “However, this court is aware that first-party actions against insurers, such as uninsured and
underinsured motorist actions, are increasingly accompanied by bad faith claims and
CUTPA/CUIPA actions. Not infrequently, these additional claims are themselves brought in bad
faith, to "up the ante" at pretrial and trial by increasing the insurer's exposure; to exponentially
increase the scope of discovery, with the hope of obtaining the insurer's entire file, including its
work-product investigation; and for purposes of trial strategy. In such cases, the prejudice to the
defendant is evident.” Khanthavong v. Allstate Ins. Co., 1996 Conn. Super. LEXIS 3181.
“Practice Book 133 (now §15-2) provides in pertinent part that in any case in which several
causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the
answer, if it appears to the court that they cannot all be conveniently heard together, the court may
order a separate trial of any such cause of action or may direct that any one or more of them be
deleted from the complaint or answer." Khanthavong v. Allstate Ins. Co, Id. at 20. See also,
General Statutes 52-97.1
1
§ 52-97. Union of legal and equitable causes of action; limitation.
In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action,
and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they
shall all be brought to recover, either (1) upon contract, express or implied, or (2) for injuries, with or without force,
to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to
character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the
rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages
for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a
party in some representative or fiduciary capacity, or (7) upon claims, whether in contract or tort or both, arising out
of the same transaction or transactions connected with the same subject of action. The several causes of action so
united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
“Practice Book 283 (now §15-1) similarly provides, in relevant part: "In all cases, whether
entered upon the docket as jury cases or court cases, the court may order that one or more of the
issues joined be tried before the others." Khanthavong v. Allstate Ins. Co, Id. See also, General
Statutes 52-205.2
Pursuant to these provisions, the Khanthavong court ordered that the trial of the bad faith
counts, along with actions for CUTPA/CUIPA, be bifurcated from the trial of the uninsured
motorist action. Khanthavong v. Allstate Ins. Co, Id. “[A]nd, since discovery has been held to be
an aspect of the trial; cf. Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917); Donaghue v.
Nurses Registry, Inc., 40 Conn. Supp. 196, 197, 485 A.2d 945 (1984); Helfferich v. Farley, 36
Conn. Supp. 333, 334, 419 A.2d 913 (1980); the Khanthavong court further ordered that discovery
relating to those counts be deferred until after the trial of the uninsured motorist action.
Khanthavong v. Allstate Ins. Co, Id. at 21.
The Defendant, Progressive, seeks the same prevention of prejudice and respectfully
requests the same relief in this matter, which will not cause any prejudice or undue burden to the
plaintiff as all of his claims are preserved.
affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any
case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the
answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate
trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer.
2
§ 52-205. Court may determine order in which issues shall be tried.
In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of
the issues joined be tried before the others.
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
III. CONCLUSION
WHEREFORE, the defendant, Progressive respectfully requests that the Court sever
Plaintiff’s Count Two, and order a stay of Count Two pending the resolution of the Count One of
the plaintiff’s Amended Complaint.
The Defendant,
PROGRESSIVE CASUALTY
INSURANCE COMPANY
By:
Johncarlo R. Cinelli, Esq.
Hanks, Olsen & Sheehan
538 Preston Avenue, Suite 305
Meriden, CT 06450
Tel: (203) 427-2160
Juris No.: 419471
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
CERTIFICATION
I certify that a copy of this document was or will immediately be mailed or delivered
electronically or non-electronically on October 17, 2022, to all counsel and self-represented parties
of record and that written consent for electronic delivery was received from all counsel and self-
represented parties of record who were or will immediately be electronically served.
Name and address of each party and attorney that copy was or will immediately be mailed
or delivered to:
Bertram W. McDowell, Jr., Esq.
Bert McDowell Injury Law, LLC
1450 Barnum Avenue
Suite 201
Bridgeport, CT 06610
(203) 690-1030
____________________________________
Johncarlo R. Cinelli, Esq.
HANKS, OLSEN & SHEEHAN
538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599
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DOCKET NO: FBT-CV21-6110509-S : SUPERIOR COURT CHARLES DAVIS : J.D. OF FAIRFIELD V. : AT BRIDGEPORT PROGRESSIVE CASUALTY : OCTOBER 17, 2022 INSURANCE COMPANY MOTION TO SEVER AND STAY Pursuant to Connecticut Practice Book § 15-1 and § 15-2, the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY (“Progressive”), hereby moves to sever and stay Count Two of the Plaintiff's Complaint dated September 15, 2021, sounding in bad faith and breach of contract against Progressive, until Count One sounding in underinusred motorist benefits has been adjudicated. The Defendant has attached a memorandum of law in support of their position. The Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY By: Johncarlo R. Cinelli, Esq. Hanks, Olsen & Sheehan 538 Preston Avenue, Suite 305 Meriden, CT 06450 Tel: (203) 427-2160 Juris No.: 419471 HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 DOCKET NO: FBT-CV21-6110509-S : SUPERIOR COURT CHARLES DAVIS : J.D. OF FAIRFIELD V. : AT BRIDGEPORT PROGRESSIVE CASUALTY : OCTOBER 17, 2022 INSURANCE COMPANY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SEVER AND STAY I. STATEMENT OF FACTS: The Plaintiff first began the instant lawsuit by writ, summons and complaint dated September 15, 2021 with a return date of October 26, 2021. Count One of the Complaint is an action for underinusred motorist benefits regarding a motor vehicle accident on or about August 1, 2020, in which the Plaintiff alleges he sustained injuries. In Count Two, the Plaitniff, Charles Davis, has alleged breach of contract, and bad faith, against Progressive. The Plaintiff alleges that the Plaintiff was insured by the Defendant and in support of alleging breaching its contractual duty of good faith and fair dealing by acting in bad faith and/or with sinister motive and/or maliciously and/or with willful or reckless indifference to the rights of the Plaintiff in one or more of the following ways: a. The Defendant has refused to pay adequate underinsured motorist benefits owed to the plaintiff under the insurance contract with the intention of obstructing or injuring the plaintiffs right to recover the same; b. The Defendant had not offered to pay adequate underinsured motorist benefits owed to the Plaintiff under the insurance contract, with the intention of obstructing or injuring the Plaintiff’s right to recover the same; HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 c. The Defendant has purposely delayed the provision of appropriate underinsured motorist benefits owed to the Plaintiff under the contract, with the intension of obstructing or injuring the Plaintiff’s right to recover the same; d. That although having had proof of the claim, including the Plaintiff’s damages, harms, and loses, the Defendant has refused to offer the Plaintiff sufficient and/or adequate benefits under the contract, with the intention of obstructing or injuring the Plaintiff’s rights to recover the same; and/or e. That the Defendant purposely did not consider all of the Plaintiff’s medical records and bills and/or noneconomic damages in order to evaluate the claim, even though it could have done so, with the intention of obstructing or injuring the Plaintiff’s rights under contract. equitable settlement of the Plaintiff’s claim thereby forcing the Plaintiff to institute litigation before recovering benefits clearly due under the policy. 20. As a direct and proximate result of the Defendant’s wrongful conduct and bad faith, the Plaintiff has been damaged and harmed. See, Plaintiff’s Complaint, Count Two. The Defendant, Progressive, moves that Count Two of the Complaint be severed from the immediate claim of Count One and stayed until Count One has been adjudicated, as the result of the adjudication of the Count One may obviate the need for any adjudication of the remaining count. II. LAW AND ARGUMENT A. The Defendant Moves to Sever and Stay Count Two Pending Resolution of Count One of the Plaintiff’s Complaint. Our court has found that “There are no procedural obstacles to bringing bad faith and Connecticut Unfair Insurance Practices Act/Connecticut Unfair Trade Practices Act claims HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 together with a claim for uninsured motorist benefits.” Powell v. Infinity Ins. Co., 282 Conn. 594, 2007. “However, this court is aware that first-party actions against insurers, such as uninsured and underinsured motorist actions, are increasingly accompanied by bad faith claims and CUTPA/CUIPA actions. Not infrequently, these additional claims are themselves brought in bad faith, to "up the ante" at pretrial and trial by increasing the insurer's exposure; to exponentially increase the scope of discovery, with the hope of obtaining the insurer's entire file, including its work-product investigation; and for purposes of trial strategy. In such cases, the prejudice to the defendant is evident.” Khanthavong v. Allstate Ins. Co., 1996 Conn. Super. LEXIS 3181. “Practice Book 133 (now §15-2) provides in pertinent part that in any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be deleted from the complaint or answer." Khanthavong v. Allstate Ins. Co, Id. at 20. See also, General Statutes 52-97.1 1 § 52-97. Union of legal and equitable causes of action; limitation. In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either (1) upon contract, express or implied, or (2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a party in some representative or fiduciary capacity, or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 “Practice Book 283 (now §15-1) similarly provides, in relevant part: "In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others." Khanthavong v. Allstate Ins. Co, Id. See also, General Statutes 52-205.2 Pursuant to these provisions, the Khanthavong court ordered that the trial of the bad faith counts, along with actions for CUTPA/CUIPA, be bifurcated from the trial of the uninsured motorist action. Khanthavong v. Allstate Ins. Co, Id. “[A]nd, since discovery has been held to be an aspect of the trial; cf. Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917); Donaghue v. Nurses Registry, Inc., 40 Conn. Supp. 196, 197, 485 A.2d 945 (1984); Helfferich v. Farley, 36 Conn. Supp. 333, 334, 419 A.2d 913 (1980); the Khanthavong court further ordered that discovery relating to those counts be deferred until after the trial of the uninsured motorist action. Khanthavong v. Allstate Ins. Co, Id. at 21. The Defendant, Progressive, seeks the same prevention of prejudice and respectfully requests the same relief in this matter, which will not cause any prejudice or undue burden to the plaintiff as all of his claims are preserved. affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer. 2 § 52-205. Court may determine order in which issues shall be tried. In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others. HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 III. CONCLUSION WHEREFORE, the defendant, Progressive respectfully requests that the Court sever Plaintiff’s Count Two, and order a stay of Count Two pending the resolution of the Count One of the plaintiff’s Amended Complaint. The Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY By: Johncarlo R. Cinelli, Esq. Hanks, Olsen & Sheehan 538 Preston Avenue, Suite 305 Meriden, CT 06450 Tel: (203) 427-2160 Juris No.: 419471 HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599 CERTIFICATION I certify that a copy of this document was or will immediately be mailed or delivered electronically or non-electronically on October 17, 2022, to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self- represented parties of record who were or will immediately be electronically served. Name and address of each party and attorney that copy was or will immediately be mailed or delivered to: Bertram W. McDowell, Jr., Esq. Bert McDowell Injury Law, LLC 1450 Barnum Avenue Suite 201 Bridgeport, CT 06610 (203) 690-1030 ____________________________________ Johncarlo R. Cinelli, Esq. HANKS, OLSEN & SHEEHAN 538 PRESTON AVENUE, SUITE 305, MERIDEN, CT 06450 (203) 427-2160 (866) 540-7599