Humphrey v. Hunter

Full title: DAMIAN HUMPHREY v. JOHN HUNTER

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Jun 12, 2007

2007 Ct. Sup. 10480 (Conn. Super. Ct. 2007)

Opinion

No. CV 07-5008969

June 12, 2007

MEMORANDUM OF DECISION ON MOTION TO STRIKE

WAGNER, JERRY, J.T.R.

In this three-count complaint arising out of the purchase of a residential property containing undisclosed asbestos, the first count is based on defendant seller's failure to comply with the asbestos disclosure report required by Conn. Gen. Stat. § 20-327b.

On March 22, 2007, defendant filed this motion to strike the first count on the ground that it failed to allege that defendant made a "knowing" misrepresentation.

Conn. Gen. Stat. § 20-327b of the Uniform Property Condition Disclosure Act requires that, prior to a land sale contract, a residential condition report must be provided by a vendor to a prospective purchaser. Section 20-327b(d)(2)(A) requires the seller to certify that "[t]o the extent of the seller's knowledge as a property owner, the seller acknowledges that the information contained above is true and accurate for those areas of the property listed."

In Giametti v. Inspections, Inc., 76 Conn.App. 352, 357-60, 824 A.2d 1 (2003), the Appellate Court held that to impose statutory liability under § 20-327b, a plaintiff must prove that the vendor had actual knowledge of his misrepresentation. The Giametti court performed a statutory interpretation and concluded that "§ 20-327b reinforces reaching the conclusion that "the information to be disclosed is limited to representations of fact about which the vendor has actual knowledge." Id. 360.

Since count one fails to allege that the defendants had actual knowledge of the misrepresentation, the count is legally insufficient.

The plaintiff argues that count one satisfies the requirements for a claim of negligent misrepresentation and is therefore sufficient, but a claim brought pursuant to § 20-327b is an independent statutory action which has been addressed by this motion to strike and does not preclude a common law action for misrepresentation already contained in count three. See Giametti v. Inspections, Inc., supra, 76 Conn.App. 362.

Motion to strike count one of the complaint is granted.