In the State of Connecticut, as with the majority of U.S. jurisdictions, an implied duty of good faith and fair dealing is inferred in all contracts regarding each party’s performance and the enforcement of the contract provisions. Restatement (Second), Contracts § 205 (1979). Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party. E.A. Farnsworth, Contracts (1982) § 7.17, 526-28. When a party to a contract decides to bring a lawsuit including an action for breach of the covenant of good faith and fair dealing, they are required to prove three essential elements, including:

[F]irst, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which [the defendant] injured the plaintiff's right to receive benefits the plaintiff reasonably expected to receive under the contract, the defendant was acting in bad faith. Roberson v. Werner O. Kunzli, Gott, LLC, 2006 WL 2949113, *4 (Conn. Super. 2006).

According to Connecticut courts, while defining the terms used in conjunction with the elements of a breach of the covenant of good faith and fair dealing claim, “[b]ad faith means more than mere negligence; it involves a dishonest purpose ... Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.” Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 576-77 (2004).

The State of Connecticut is a fact pleading state. This means that when drafting a complaint or answer in a lawsuit, each pleading or document filed with the court is required to “contain a plain and concise statement of the material facts on which the pleader relies.” Connecticut Practice Book § 10-1. The purpose of this requirement is to allow the defending party to determine whether the alleged facts support the legal conclusions, and therefore allow the defendant an opportunity to deny any controlling facts in issue. Smith v. Furness, 117 Conn. 97, 99 (1933).

A motion to strike is a mechanism by which a party may test the legally sufficiency of a cause of action. Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992). In determining whether a motion to strike should be granted by the court, the sole question considered is “whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense.” County Federal Savings & Loan Association v. Eastern Associates, 3 Conn. App. 582 (1985). Due to the fact pleading requirement in Connecticut, conclusory allegations of law will not withstand a motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).

Within the Connecticut Superior Court, there exists a split of authority regarding what factual allegations are necessary to constitute a claim for bad faith. On one side of this split, the majority of courts have held that specific allegations of bad faith are required in a plaintiff’s pleading. In the wrongful termination case of Maxwell v. Westbrook Technologies, the only allegation that the plaintiff, Paul Maxwell, put forth to support his claim of bad faith, was that the Westbrook Technologies did not provide any rationale for its failure to pay severance benefits, despite various representations that it would. In ruling on the legal sufficiency of the claim, in regards to a motion to strike, the court stated that “[t]hough the plaintiff's allegations, if proven, may show that the defendant refused to fulfill its obligations under the agreement, they are insufficient to show any dishonest purpose or sinister motive on the part of the defendant.” 2009 WL 3366276, *4 (Conn. Super. 2009); see also Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 05 4002121 (January 13, 2006, Pickard, J.) (“[i]n order to prevail on a claim of bad faith, it is necessary for the complaint to allege a specific act that was performed purposefully, with a sinister intent”); Bernard v. Buendia, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003054 (July 20, 2005, Doherty, J.) (merely alleging that defendant acted “unreasonably and in bad faith” found to be conclusory and insufficient to support claim for breach of covenant of good faith and fair dealing).

On the other side of this split, Connecticut Superior Courts have stated that a plaintiff need only allege sufficient facts or allegations from which it may be reasonably inferred that the defendant breach the implied covenant of good faith and faith dealing. In another employment related suit, the case of Algiere v. Utica National Insurance, the court denied a motion to strike based on failure to comply with the fact pleading requirement. In its decision, the court explained, that although the plaintiff did not allege that the defendant acted in bad faith or with a sinister motive, she alleged that the defendant knowingly, willfully, deliberately and repeatedly ignored the workers' compensation commission orders. According to the court in Algiere, these facts were sufficient to “reasonably infer that an improper motive or reckless indifference of the interest of others existed.” Superior Court, Docket No. CV 04 0569670 (February 7, 2005, Jones, J.); see also McGill v. Mutual of Omaha Ins. Co., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 0104343 (September 28, 2004, Quinn, J.) (“plaintiffs need only allege sufficient facts or allegations from which it may reasonably be inferred that the defendant breached the implied covenant of good faith and fair dealing”).

The Connecticut Supreme Court has yet to resolve this conflict within the Superior Courts. This lingering divide has left counsel for litigants guessing regarding the correct standard to apply when drafting and challenging a cause of action alleging bad faith, such as a claim for breach of the implied covenant of good faith and fair dealing. It seems that attorneys and their clients will be forced to continue to tread lightly until a resolution is granted from the courts on high.