Opinion
No. CV-040092553
December 20, 2004
MEMORANDUM OF DECISION
On March 1, 2004, the plaintiff filed a six-count complaint against the defendants. The first count against Grella Well Drilling, Inc. was withdrawn prior to trial. The remaining five counts against Robert O'Donnell individually, Robert O'Donnell d/b/a O'Donnell Bros. Inc., Deborah O'Donnell individually, Deborah O'Donnell d/b/a O'Donnell Bros. Inc., and O'Donnell Bros. Inc. were tried to the court on December 8, 2004.
BACKGROUND
This action arises out of the purchase of a new home located at 6 West Park Road, Plymouth, Ct. by the plaintiff on December 10, 1999 from the defendants Robert and Deborah O'Donnell (hereinafter the O'Donnells). The O'Donnells had contracted with O'Donnell Bros. Inc. (hereinafter O'Donnell Bros.) to build a residential home on property owned by them on the Six West Park Road property. O'Donnell Bros. subcontracted with Grella Well Drilling Inc. (hereinafter Grella) to drill a well on the property. Defendant's exhibit A shows Grella obtained the first well permit on August 29, 1996. The parties stipulated that at the time of the closing the O'Donnells presented the plaintiff with a Certificate of Occupancy that included the well was in good working order. The plaintiff testified that immediately after the purchase of the property he experienced problems with the well. The water pressure was low, the water was brown, filled with silt and the recovery time after a shower or use of the washing machine was up to two hours. The plaintiff testified that he contacted both Grella and the O'Donnell's about this problem. Mr. Grella testified that he tried to resolve this problem by raising the pump and "tracking the well." As a result of the attempts to cure the well it collapsed and a second well needed to be dug. On August 29, 2000 Grella obtained a permit to dig the second well. The plaintiff, Grella and the O'Donnell's agreed to share the cost of this second well equally each paying one-third of the cost. The second well was dug in a grassy area behind the house, which the plaintiff was moving as lawn. The plaintiff testified that this well functioned properly and he had no problems with it. Sometime in October 2001, the plaintiff discovered this second well was not on his property but on property that was part of the Mattatuck State Forest owned by the State of Connecticut which abutted his property. The plaintiff then attempted to resolve the matter with the State of Connecticut by purchasing an easement but was unable to consummate a deal. In 2004 the defendant decided to sell his property and in order to sell the property was required to dig a third well and abandon the second well. On April 5, 2004, Grella obtained a third well permit for this property and dug the third well on April 13, 2004. The second well was then abandoned. The plaintiff paid Grella the sum of $7,820.60 for this third well and sold the property in June 2004.
Defendant's Exhibit B, which shows the permit was applied for on August 29, 2000, and approved on August 30, 2000.
Plaintiff's Exhibit 2, a copy of Grella's bill dated April 26, 2000 marked paid. Which included the cost of capping well # 2.
ISSUE
The issue before the court is did the defendants breach the contract by providing a well that was defective (the first well) and providing a second well that was not located on the property sold to the plaintiff by the O'Donnells. The plaintiff's position is that the defendants' failure to supply him with a usable well constituted a breach of their contract with him and as result of their breach they are responsible for the cost of the third well. The defendant's position is that they provided a working well and are not responsible for the cost of well number three.
DISCUSSION
In deciding if the defendants breached the contract the court must first look to the terms of the contract itself. The contract between the plaintiff and the O'Donnell's was signed by the parties on October 25, 1999. On page three and four of the contract the sellers agree to complete thirty specific items prior to the closing. The only mention of the well is in number three which indicates a well pump will be supplied. The court finds nowhere in the contract does the contract require the sellers to provide the plaintiff with a usable well, though since this was new construction that assumption can be made that the house would include a usable well. The defendant's position is that they did just that as evidenced by the issuance of a Certificate of Occupancy which included approval of the well. The court agrees with the defendants. The court finds the defendants did provide the plaintiff with a working well. "One of the few general rules which can safely be formulated is that there is no implied warranty on the part of a driller that the well will be productive, or, if productive, as to either the quantity or quality of the water obtained . . . but there is an implied warranty on his part that he will perform the work in a workmanlike manner, with such skill as may ordinarily be expected from those who undertake such work . . ." Note, 90 A.L.R.2d 1346, 1352 Sec. 1 "It has been generally held that in the absence of a provision in a well drilling contract guaranteeing the results of the undertaking there is no implied warranty on the part of the driller as to the quantity of water which will be obtained." Id., p. 1353 Sec. 4 and cases cited; p. 1375 Sec. 18. "It has been generally held that in the absence of provision in a well drilling contract specifying the quality of the water to be procured, there is no implied warranty on the part of the driller as to the quality of such water." Kocian v. Devito, 251 A.2d 516, 5 Conn. Cir. 339, 342 (1968). In this action there is no evidence the first well was not dug in a workmanlike manner, nor was there anything in the contract that specified the quantity or quality of the water. In fact, on page five of the contract the plaintiff specifically waived his right to a water test as to the potability of the water and the recovery period of the well. The plaintiff also contends the defendants are liable under the New Home Warranty Act, Connecticut General Statutes 47-116 through 47-121. On page two of the contract under other conditions it states "1 year warranty to be given the buyers in writing by builder and signed by builder as per Connecticut state law." If such a writing was made it was not presented as evidence. The plaintiff's position is because he notified the O'Donnell's within one year of the closing that the first well was a problem and the O'Donnell's participated in payment for the second well they are still responsible four plus years later to provide him a well under this statute. The court finds the New Home Warranty act does not apply for two reasons. First under both the express warranty statute 47-117(d) and the implied warranty statute 47-118(e) the warranty terminates one year after either the delivery of the deed or the taking of possession by the purchaser. In either event the time period has expired. Second under General Statute 47-118(b) the implied warranty section shall not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed. In this case the court finds a reasonably prudent purchaser would have had a simple water test performed which would have alerted the plaintiff to the problem with well number one. As previously noted the plaintiff had this opportunity and waived it. As to well number two the court finds a reasonably diligent purchaser would have required the sellers to provide a plot plan showing the boundaries of the property or would have himself obtained a plot plan to insure the second well was properly located.
Plaintiff's exhibit 1, is a five-page copy of the contract.
The court finds the plaintiff has not sustained his burden of proof under either the breach of contract theory, nor under the New Home Warranties Act, judgment may enter in favor of the defendants on all counts.
Brunetti, J.