Gauvreau Enterprises v. Lane Constr. Corp., No. 0383386 (Nov. 8, 1990)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE SECOND COUNT The plaintiff brings this action to recover for services performed at the request of and for the benefit of Lane Construction Corporation and Premium Materials, Inc., the general contractor and subcontractor respectively of the State of Connecticut Project No. BI-JA-189F. The action is brought in two counts, the first against the contractor and subcontractor and the second count against the defendant Seaboard Surety Company (Seaboard) in a claim under General Statutes 49-41, a claim against the surety of the payment bond. Seaboard has CT Page 3549 moved to strike the second count on the grounds that it is not legally sufficient and fails to state a claim upon which relief can be granted.

The plaintiff has not complied with P.B. 155 by filing a memorandum of law. This may be because the count would have to be amended at any rate since, although directed against Seaboard, alleges the surety to be Fireman's Fund Insurance Companies.

It should be pointed out as well that one of the arguments made on the motion to strike relies on facts not contained in the allegations of the second count. Since for the purposes of such motion only the well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted, Mead v. Burns, 199 Conn. 651, 655, the court would be unable to consider that "on or about August 17, 1990, plaintiff sent notice to defendants of its claim. "

The court, as stated above having found the allegations of the second count fail to state a claim upon which relief can be granted against Seaboard, grants the motion to strike the second count.

CORRIGAN, J.