Opinion
DBDCV196029726S
06-18-2019
COMMUNITY ASSOCIATION UNDERWRITERS OF AMERICA, INC. aso Fox Hill Condominium Association Phase 1 v. SPM MAINTENANCE AND CONSTRUCTION, LLC
UNPUBLISHED OPINION
OPINION
D’ANDREA, Robert A., J.
The defendant SPM Maintenance and Construction, LLC (defendant) hereby moves to strike the first and second counts of the plaintiff’s Community Association Underwriters of America, Inc.’s (plaintiff) a/s/o Fox Hill Condominium Association Phase 1 (Fox Hill) three-count complaint, which sound in negligence and breach of contract, respectively. The defendant moves to strike count one because the complaint is time-barred by the three-year statute of repose enshrined in General Statutes § 52-584. The plaintiff alleges that the defendant negligently performed maintenance, repairs, cleaning troubleshooting and other work on a chimney at Fox Hill Condominium Association located at 6-8 Juneberry Lane, Ridgefield, Connecticut on December 9, 2011, thereby causing a fire on December 17, 2016 in the fireplace/chimney system. Based on these pleaded facts, taken as true, the plaintiff is well beyond the three-year statute of repose holding that "no such action may be brought more than three years from the date of the act or omission complained of." General Statutes § 52-584. The defendant moves to strike count two of the complaint, sounding in breach of contract, because it states conclusions of law, and does not sufficiently plead breach of contract. Therefore, the defendant respectfully requests that this court strike counts one and two of the plaintiff’s complaint against the defendant.
DISCUSSION
"[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). "[T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). "The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The second exception "exists ... when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right- it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 345 n.12.
DEFENDANT’S POSITION- COUNT ONE
The defendant claims that the first count should be stricken for failing to comply with General Statutes § 52-584, because the date of the act or omission complained of is beyond the three-year requirement from the filing of the complaint. The allegedly negligent work was performed in 2011, and the complaint was filed in 2019, eight years later. General Statutes § 52-584 is entitled "Limitation of action for injury to person or property caused by negligence, misconduct or malpractice" and provides in pertinent part: "No action to recover damages for injury ... to real property, caused by negligence, ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ... The three-year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three-year period is, therefore, a statute of repose." Rosato v. Mascardo, 82 Conn.App. 396, 401-02 (2004).
DEFENDANT’S POSITION- COUNT TWO
According to the defendant, a motion to strike "is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Place I, LLC v. Ganim, 303 Conn. 205, 213 (2011). "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 15-16, 971 A.2d 90 (2009). In applying these principles to breach of contract claims, Connecticut courts find that "[a]bsent any factual allegations that the plaintiff actually bound itself to perform pursuant to any specific provision of the contract, and that such a performance was not delivered, the defendants cannot maintain an action for breach of contract." (Emphasis added.) Brantley v. Residential Makeover, LLC, Docket No. W10-5033289-S, *5 (July 25, 2012, Fischer, J.). In the case, the plaintiff has made a breach of contract claim that is generalized and lacks specificity, merely claiming that defendant "breached the terms of an enforceable legal agreement" by "acting and/or failing to act as described herein." Simply claiming there is an enforceable legal agreement to act or not act in the allegedly negligent ways in the first count, without citation to an actual contract, express or implied, amounts to a legal conclusion that should be stricken because it does not identify what provisions of the contract were allegedly broken, nor how. By failing to identify how was breached, the defendant is left uncertain as to which alleged acts and/or omissions from the first count are also allegedly contractual violations. The alleged acts and omissions complained of in the first count, incorporated into the second count, only invoke negligence. The lack of reference to an actual agreement to do something between the parties is fatal to count two of the complaint. Contrary to the plaintiff’s assertion in the complaint that the defendant is not prejudiced by the plaintiff’s failure to provide the contract language being targeted, defendant is prejudiced in putting a defense against a nonspecific, conclusory allegation, because it is not certain how the plaintiff believes the contract was allegedly breached, and where in the contract this derives from. The plaintiff’s conclusory allegations in count two of the Complaint should therefore be stricken. Further, a contract claim will not be permitted where it merely makes a negligence claim cloaked contract language. Caffrey v. Stillman, 79 Conn.App. 192, 197 (2003). Placing a contract tag does not change its character. Pelletier v. Galske, 105 Conn.App. 77, 82 (2007). The Connecticut Supreme Court has stated that a "plaintiff may not convert that liability into one sounding in merely by talismanically invoking contract language in his complaint." Gazo v. City of Stamford 255 Conn. 245, 262 (2001). In Gazo, the Supreme Court acknowledged that the plaintiff used language that might ordinarily be sufficient to plead a third-party beneficiary cause action, but ultimately found that the liability to the plaintiff was nevertheless based in tort law. In filing this complaint for breach of contract, the plaintiff could have and should have accessed its insured’s copy of the agreement, and referenced those provisions that were supposedly breached. Instead, the plaintiff alleges a conclusory restatement of the negligence count, which is insufficiently plead. As a result, count two of the plaintiff’s complaint, sounding in breach of contract, should be stricken.
PLAINTIFF’S POSITION- COUNT ONE
Regarding the count one, plaintiff sufficiently pleads that defendant’s negligence included failures relating to maintenance and failure to warn relating to the chimney at issue, duties that extend beyond the December 9, 2011 repair date. As defendant was an entity related to the management company at the property, discovery is needed to determine the exact nature of defendant’s ongoing maintenance duties. Granting motion to strike would deny plaintiff the opportunity to develop facts regarding more recent commissions of negligence as well as defendant’s ongoing maintenance duties under Connecticut’s "continuing course of conduct" doctrine. Plaintiff has sufficiently plead defendant’s negligence relating to maintenance and failure to warn, ongoing obligations that implicate Connecticut’s continuing course of conduct doctrine.
In count one, plaintiff alleges negligence against defendant relating to its repair, maintenance, and failure to warn of hazards relating to a chimney. The motion to strike zeroes in on the December 9, 2011 date proffered as the date wherein defendant undertook certain repairs. What defendant’s motion ignores is that the complaint does not only plead a faulty repair on that date, but contain allegations of failures to "perform maintenance, repairs, cleaning, troubleshooting," failure to "address, identify, and/or otherwise cure," failure to "properly complete work, maintenance and/or repairs," failure to "notify Fox Hill of the fire hazard," among other acts and failures that at the very least necessarily imply a continuing duty that extended beyond the 2011 date. Connecticut’s courts have extended the tort statute of limitations in cases where the wrongdoer fails to warn the injured party of his negligence. The tortfeasor’s silence is considered a continuing course of conduct, and the limitations period does not begin to run until the course of conduct is completed. Cross v. Huttenlocher, 185 Conn. 390, 400 (1981). For the doctrine to apply, the wrongdoer must have a duty to warn that continued after the commission of the original wrong. Connell v. Colwell, 214 Conn. 242, 254 (1990). This requires either the existence of a special relationship between the parties, or some later wrongful conduct that is related to the earlier act. Fichera v. Mine Hill Corp., 207 Conn. 204, 210 (1988). Here defendant is tasked with continuing maintenance obligations at the property that creates a special ongoing relationship to plaintiff’s subrogor, and has arguably committed later wrongful conduct in the form of its failures to warn, failures to correct earlier faulty work, etc. At the very least, plaintiff should be permitted to conduct discovery and develop a factual record relating to defendant’s obligations and failures.
PLAINTIFF’S POSITION- COUNT TWO
Regarding count two, defendant’s motion seeks to take advantage of plaintiff’s position as an entity standing in the shoes of its subrogor. Plaintiff is not and was never a party to the contract at issue. Accordingly, plaintiff has no copy of it and cannot plead to specific provisions. Defendant was a party to the contract, presumably has a copy of it and is not prejudiced by plaintiff’s inability to provide it. Plaintiff should not be penalized for not possessing a copy of a legally-binding contract that defendant was a party to, likely has, and allegedly violated. Defendant essentially seeks to profit from plaintiff’s position as a subrogating insurance carrier. Plaintiff cannot be expected to have a copy of the contract in its possession. Defendant almost certainly has, or has access to, the contract. Defendant seeks to shut down plaintiff’s contract claim before plaintiff has had an opportunity to request the contract from defendant in discovery. In the interests of justice, and in furtherance of the principle that cases should be adjudicated on their merits, this should not be allowed. The case law cited by defendant is distinguishable on the simple grounds that the parties in those cases were parties to the contracts at issue, none involved subrogating entities, as in this case. Connecticut case law appears to be lacking in cases wherein a plaintiff sued based on a contract to which it was not itself a party. Plaintiff relies on longstanding principles of fairness and meritorious adjudication of cases to urge this court to allow contract claim to withstand defendant’s motion. Therefore, at this early pre-discovery stage of litigation, plaintiff argues that it has more than sufficiently pled its negligence and contract claims, and accordingly, defendant’s motion to strike should be denied.
DEFENDANT’S POSITION- COUNT ONE- REPLY TO PLAINTIFF
Plaintiff relies on the continuing course of conduct doctrine to argue that this court should view the allegations of the complaint as necessarily and impliedly claiming a continuing duty on the part of the defendant. The only claims that can be inferred from a complaint are those that are necessarily implied. Even broadly construed, the plaintiff’s allegations do not allege anything approaching a continuing course of conduct sufficient to toll the statutes of limitations. The continuing course of conduct doctrine is used to determine tolling of the statutes of limitations, and reflects the policy that "during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and yet be remedied." Golden v. Johnson Memorial Hospital, 66 Conn.App. 518, 525 (2001). With respect to the continuing course of conduct doctrine, the court must determine whether the plaintiff has sufficiently alleged that the defendant: "(1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 375 (2000). In direct contradiction to the plaintiff’s contention that the failure to warn and correct faulty work constitutes later wrongful conduct, the Connecticut Supreme Court unequivocally stated the following: "To support a finding of a ‘continuing course of conduct’ that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. In such situations, however, the continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing." Connell v. Colwell, 214 Conn. 242 (1990) at 254-55. If the plaintiff’s argument were adopted, then a plaintiff could overcome the statute of limitations/repose against any defendant in any premises liability case simply by alleging a failure to warn about a condition, even if the repair were conducted infinitely long ago. The plaintiff alternatively asks this court to infer from its pleadings some "special relationship" between the parties that would create an ongoing duty towards the maintenance of the subject chimneys, adding that the defendant was supposedly tasked with "continuing maintenance obligations at the property." Nowhere in the complaint does the plaintiff indicate that defendant was tasked with continuing maintenance obligations at the property that would be sufficient to toll the statute of limitations. Even if this court decides the plaintiff impliedly alleged that defendant performed subsequent maintenance at the property, such an allegation does not form the basis for a "special relationship" as anticipated by Connecticut case law. This is especially true concerning the allegedly faulty chimneys, to which defendant’s duty concluded after performing the repair work in 2011. A "special relationship must be something out of the ordinary and of such a level to defeat the very sound and entrenched policies behind the statute of limitations." Grey v. Stamford Health Systems, Inc., Docket No. CV 01-0182783-S, 2005 WL 1545302, *5 (June 6, 2005, Dooley, J.) . Renaming the relationship between a repair contractor and a property owner who regularly engage in business, as rising to the level of a "special relationship" sufficient to toll the statutes of limitations, regardless of whether any further wrongful conduct was performed as to the specific faulty condition, would render the statutes of limitations meaningless in most repair-contract relationships. It is enough to say that the plaintiff has failed to sufficiently allege such a special relationship in its pleadings and the count should be stricken.
DEFENDANT’S POSITION- COUNT TWO- REPLY TO PLAINTIFF
Finally, the plaintiff asks this court to deny the motion to strike the second count of the complaint on the basis that it is an insurance carrier and subrogor that "cannot be expected to have a copy of [the contract] in its possession." Plaintiff attempts to distinguish the carefully curated case law, but offers no alternative case law, nor persuasive law from another jurisdiction, for its proposition that insurance carriers, as subrogors, are somehow absolved from the need to specifically plead breach of contract, as in count two of its complaint. Defendant notes that while the pleading rules in Connecticut are loose, the plaintiff still needs to bring a prima facie case for breach of contract, which it cannot do without reference to the contract itself. How can the plaintiff bring a case for breach of contract without knowledge of the terms of the contract it is alleging that defendant breached? The repair work took place in 2011, the fire occurred on December 17, 2016, and this complaint was filed more than two years later, on January 4, 2019. At any intervening point, the plaintiff could have simply asked its client for a copy of the subject contract and avoided insufficiently pleading the present count of its complaint. Based on the foregoing, the defendant respectfully requests this court overrules the plaintiff’s objection, and grant the motion to strike counts one and two of the plaintiff’s complaint.
COURT ANALYSIS
As to count one, after a review of the plaintiff’s December 6, 2018 complaint, the court is of the opinion that the plaintiff’s reliance on the continuing course of conduct doctrine is misplaced. This court can only consider the allegations of the complaint, and any claims that can be inferred from a complaint that are necessarily implied. Even broadly construed, as stated by the defendant, the plaintiff’s allegations do not allege facts for a finding by the court of a continuing course of conduct sufficient to toll the statute of limitations. The continuing course of conduct doctrine reflects the policy that "during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and yet be remedied." Golden v. Johnson Memorial Hospital, 66 Conn.App. 518, 525 (2001). As correctly stated by the defendant, with respect to the continuing course of conduct doctrine, the court must determine whether the plaintiff has sufficiently alleged that the defendant: "(1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 375 (2000). While plaintiff may claim that failure to warn and correct faulty work constitutes later wrongful conduct, the Connecticut Supreme Court stated: "To support a finding of a ‘continuing course of conduct’ that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. In such situations, however, the continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing." Connell v. Colwell, 214 Conn. 242 (1990) at 254-55. The plaintiff can point to no specific obligation, whether oral or written, that obligates the defendant to maintain and/or repair the chimney on an ongoing basis. Statements in the complaint such as "the fire occurred because defendant failed to properly and competently maintain and repair"; "upon information and belief, defendant preformed maintenance, repairs"; defendant’s failure to properly complete ... maintenance and/or repairs"; "defendant owed a non-delegable duty to perform the inspection"; and "defendant owed ... a non-delegable duty to ... to properly and adequately inspect, maintain, troubleshoot and/or repair the chimney," without more, are insufficient to toll the statutes of limitations. Plaintiff cannot overcome this by claiming that it is a subrogor, not party to the "contract at issue," therefore, it should be given an opportunity to obtain discovery. The insured of the plaintiff, Fox Hill, was not only an insured, but also a client of the plaintiff. The fire occurred at Fox Hill on December 17, 2016, and the complaint of the plaintiff was filed December 6, 2018, nearly two years later. Plaintiff had more than sufficient time to meet with its insured and client, and obtain all details regarding any written or oral contract with the defendant to perform continuing inspection, maintenance, or repairs on the chimney since the original repair date of December 9, 2011.
In the absence of any written or oral contract with the defendant to perform continuing inspection, maintenance, or repairs on the chimney, the plaintiff alternatively asks this court to infer from its complaint some "special relationship" between the parties that would create an ongoing duty towards the maintenance of the subject chimneys, adding that the defendant was supposedly tasked with continuing maintenance obligations at the property. Nowhere in the complaint does the plaintiff indicate that defendant was tasked with continuing maintenance obligations at the property that would be sufficient to toll the statutes of limitations. Even if this court were to find that defendant performed subsequent maintenance at the property, such an allegation, in and of itself, does not form the basis for a "special relationship" as anticipated by Connecticut case law. Without more, the defendant’s duty ended after performing the repair work in December of 2011. A "special relationship must be something out of the ordinary and of such a level to defeat the very sound and entrenched policies behind the statute of limitations." Grey v. Stamford Health Systems, Inc., Docket No. CV 01-0182783-S, 2005 WL 1545302, (June 6, 2005, Dooley, J.). As accurately stated by the defendant, merely renaming the relationship between a property repair contractor and a property owner, as rising to the level of a "Special relationship" sufficient to toll the statutes of limitations, regardless of whether any further wrongful conduct was performed as to the specific faulty condition, would render the statutes of limitations meaningless in nearly all repair-contract relationships. The Court finds that the plaintiff has failed to sufficiently allege such a special relationship in its pleadings and the defendant’s motion to strike is hereby granted.
As to count two, after a review of the plaintiff’s December 6, 2018 complaint, the court is of the opinion that the plaintiff’s request to deny the motion to strike the second count of the complaint on the basis that the plaintiff is an insurance carrier and subrogor, and that as such, it "cannot be expected to have a copy of the contract in its possession," cannot legally be granted, The defendant points out that the plaintiff offers no Connecticut case law, nor persuasive case law from another jurisdiction, for its position that insurance carriers, as subrogors, are somehow absolved from the need to specifically plead breach of contract. Defendant concedes that while the pleading rules in Connecticut are loose, the plaintiff still needs to bring a prima facie case for breach of contract, which it cannot do without reference to the contract itself, or at least some form of contractual obligation. As stated above, the court finds that the plaintiff makes no reference to any written or oral contract between Fox Hill and the defendant. A case for breach of contract, without any of the terms of the contract it is alleging that was breached, cannot survive. The repair work took place in December of 2011, the fire occurred on December 17, 2016, and this complaint was dated nearly two years later. It is not unreasonable to require the plaintiff to have contacted its insured, Fox Hill, and requested a copy of any written contract, or written communications, or terms of an oral contract, in order to allow the plaintiff to sufficiently plead the second count of its complaint. Based on the foregoing, this court finds that the plaintiff’s second count is insufficient, and the motion to strike count two of the plaintiff’s complaint is granted.
Based on the foregoing, the defendant’s motion to strike the first and second counts of the plaintiff’s complaint is GRANTED.