Opinion
No. CV99-0155286S
January 30, 2004
PROCEDURAL HISTORY
This case was brought to the court on October 26, 1999. The plaintiff alleged, inter alia, that the defendant town of Watertown breached an implied contract to pay him a salary commensurate with the position of Assistant Superintendent/Acting Department head of the Watertown Water and Sewer Department (hereinafter "WSA"). In count one, the plaintiff alleges that the defendant breached an implied contract, was unjustly enriched and deprived him of the value of his services. In count two, he alleges the defendant breached an implied covenant of good faith and fair dealing. In count three, he alleges the defendant intentionally caused him emotional distress and in count four, that the defendant negligently caused him emotional distress.
On August 29, 2002, the defendant filed a motion for summary judgment as to all counts. (No. 109.) The plaintiff filed an objection on July 2, 2003.
Count One
The defendant argues that the [a]gents of a city, including [its commissions], have no source of authority beyond the charter." Fennell v. Hartford, 238 Conn. 809, 813 (1996). Therefore, the town manager and the council, absent a formal vote or procedure, could not bind the defendant to pay the plaintiff a higher salary.
Fennell, however, is distinguishable in two particulars: first, the plaintiffs alleged the implied contract resulted from language in a pension manual; the instant case does not concern language in a pension manual and, thus, is not an issue. The Fennell court limited its holding to implied contracts based upon pension or employee manuals. Secondly, the retired police officers sought additional retirement benefits; in the instant case the plaintiff seeks compensation for additional duties and responsibilities he allegedly performed for the defendant.
Furthermore, the issues of unjust enrichment and quantum meruit raised by the plaintiff in count one present questions of fact for the trier of fact to decide.
"[A]lthough mere benefits received by a city or town will not alone ordinarily create an implied promise to pay, and an agreement may not be implied contrary to the terms of an express contract, a municipal corporation in a proper case may be liable . . . upon an implied contract as distinguished from an express contract. Implied contracts arise where there is a bargained-for exchange intended by the parties, but no overt expression of agreement." 10 McQuillen Municipal Corporations, § 29.110 p. 96-97 (3d Ed. Rev. 1999). "[I]f the municipality has power to contract by express contract and the contract is not against public policy, and there are no statutory or charter provisions limiting the mode of execution of a similar express contract, it will be liable on an implied contract where it has received benefits . . . Under such circumstances, by reason of benefits received, the liability of the municipal corporation may be based upon quantum meruit . . ." Id., § 29.111, p. 101. "The fiction of an implied promise or agreement, or the theory of a liability based on quantum meruit, cannot be substituted for an express contract which is void for noncompliance with mandatory terms of the statutes or charter . . . in some cases where there is a charter provision or statute or ordinance prescribing the method by which an officer or agent of a municipal corporation may bind the municipality by contract, that method must be followed, and there can be no implied contract or implied liability of the municipal corporation under such circumstances. There is considerable authority, however, to support the rule that a recovery may be allowed in such cases, upon the theory that it is not justice, where a contract is entered into between a municipality and another, in good faith, and the corporation has received benefits, to permit the municipality to retain the benefits without paying their reasonable value, the same as a private corporation or individual would have to do . . . recovery on quantum meruit frequently is permitted where there are irregularities as to directory matters relating to the making of a contract within the corporate powers, and the public has received benefits. Furthermore, recovery has been granted on the theory of quasi contract or unjust enrichment . . . for benefits received for work performed . . ." Id., § 29.112, p. 111-12.
Accordingly this court finds there are genuine issues of material fact as to the existence of an implied contract that does not relate to provisions of an employee manual or pension plan. Accordingly, the court denies the motion for summary judgment as to count one.
Count Two
If an implied contract exists, there also exists an implied covenant of good faith and fair dealing. "It is axiomatic that the implied duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." (Citations omitted.) Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793 (2000). The court having found there are genuine issues of material tact as to whether an implied contract exists, denies the motion for summary judgment as to count two.
Count Three
Connecticut General Statutes § 52-557n(a)(2)(A) bars this claim. The plaintiff has not briefed the issue in his objection. The motion for summary judgment is therefore granted as to count three.
Count Four
The defendant argues there is no liability of an individual municipal employee for the negligent infliction of emotional distress arising out of conduct in the context of a continuing employment relationship. See Perodeau v. Hartford, 259 Conn. 729 (2002). In Perodeau individual employees were named defendants. Although Biello did not name individual employees as co-defendants, Perodeau is applicable for the reason that the municipality is not liable for indemnifying its employees who are not liable to the plaintiff. Furthermore, the plaintiff fails to cite any statutory basis for the abrogation of the doctrine of governmental immunity. Caruso v. Milford, 75 Conn. App. 95, 99 (2003). Therefore, the court grants the motion for summary judgment as to count four.
LEHENY, JUDGE.