Opinion
No. 095022549
September 16, 2010
MEMORANDUM OF DECISION
The plaintiff, Russell Temple Christian Methodist Episcopal Church, brings this action in two counts. The first count alleges that Capital Building Wrecking, LLC (Capital) breached its contract with the plaintiff to perform asbestos removal at the plaintiff's property causing damages. The second count alleges that Capital and Chris Taylor performed the asbestos removal work negligently and thereby caused the plaintiff damages.
The case was tried to the court. Following the close of the evidence, the court scheduled a date by which the parties were permitted to file trial briefs. The plaintiff elected to file such a brief. The defendants did not.
The court finds the following facts. On March 31, 2008, the plaintiff acquired a burnt-out multifamily 2 1/2 story dwelling located at 480-482 Connecticut Avenue in Bridgeport. The plaintiff undertook to refurbish the building and assigned Ed Lomax, a member and trustee of the church, to be project manager. The plaintiff retained a general contractor. On July 8, 2008 the plaintiff and Capital entered into a written contract for asbestos removal for the contract price of $3,600. Taylor signed for Capital as manager. Under "description of work" the contract stated: "Asbestos removal and disposal of ACM as listed on survey provide [sic] by AEC . . ." ACM is an acronym for asbestos containing materials. AEC is Applied Environmental Control, LLC, which had performed a survey of the property in 2007 for the prior owner. The survey was attached to the contract. Under the subheading "Asbestos Containing Material Inventory," the survey provided:
Location Material Type Approximate quantity
Basement-North Side Sheet Insulation Inside Furnace 45 sq. ft Basement-North Side Pipe Insulation 180 l.f. Basement-South Side Paper Insulation on Supply 200 sq. ft Ducts 1st Floor rear Hall, Beige Linoleum 300 sq. ft Kitchen PantryNotably, the basement of the building contained a large red furnace.
The plaintiff paid Capital $2,800 of the $3,600 contract price before Capital began work on the afternoon of July 16, 2008. At that time, the general contractor had already completed a partial renovation of the building from the second floor up. The general contractor had performed no work in the basement. Neither the basement nor the first floor were open to the elements. Prior to Capital beginning work, Lomax observed Taylor giving another employee instructions.
At 8:30 p.m. on July 16, 2008, Lomax observed Taylor driving a backhoe down Connecticut Avenue. Taylor told Lomax that Capital was nearly finished with the job. At about 9:00 p.m., Taylor returned to the property briefly and reported to Lomax that the job had been completed.
Following Capital's departure, substantial asbestos contamination was found in the entire basement area, beyond what had existed before the work, in the rear yard, and in the dumpster located in the rear yard. A few days after Capital's departure, Steve Dahlem of the State Department of Environmental Protection (DEP) contacted Lomax and requested that he meet with DEP inspectors at the property. After inspecting the property, Dahlem found asbestos debris on the remnants of pipes left in the basement, in the yard and in a dumpster. Dahlem ordered the plaintiff to retain an expert to design and implement a plan to clean the basement, yard and dumpster. The plaintiff hired Reliance Environmental LLC to prepare the plan, for which the plaintiff paid $3,950. The plaintiff paid Charles Abatement $11,850 to actually perform the work.
The furnace that had been in the basement was subsequently found in a truck five or six blocks from the plaintiff's building.
The plaintiff brought this action on February 11, 2009.
I
In the first count of its complaint, the plaintiff alleges that Capital breached its written agreement to remove asbestos from the designated areas of the building and caused further damages by failing to properly contain the asbestos on the premises. The plaintiff alleges that it paid Capital $2,800 and that the plaintiff had to hire a substitute contractor to remove the asbestos.
"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.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). The materiality of a contractual breach is a question of fact. See 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, 43 Conn.App. 113, 128, cert. denied, 239 Conn. 949, 686 A.2d 126 (1996). "In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived; (c) the extent to which the party failing to perform will suffer forfeiture; (d) the likelihood that the party failing to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." (Internal quotation marks omitted.) Id., 126, citing 2 Restatement (Second), Contracts § 241 (1981).
The court finds in favor of the plaintiff on the first count. Specifically, the court finds that Capital materially breached its contract with the plaintiff and caused asbestos debris to be dispersed about the premises, depriving the plaintiff of the benefit that was contracted for and creating a condition that was worse than that which existed before Capital arrived on the premises. Although Taylor claimed that the furnace had already been removed when Capital began work, the court does not find this testimony credible.
The court now turns to the issue of damages. "It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach . . . It is on this ground that . . . when an owner receives a defective or incomplete building, any part of the price that is as yet unpaid is deducted from the cost of completion that is awarded to him . . . Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach." (Citations omitted; internal quotation marks omitted.) Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991).
"For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste . . . The court may consider evidence demonstrating that repairs undertaken by [a] plaintiff were necessary to restore the facility to the condition that it would have been in had it been constructed as warranted." (Citation omitted; internal quotation marks omitted.) Naples v. Keystone Building Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010). "The plaintiff has the burden of proving the extent of the damages suffered . . . Although the plaintiff need not provide such proof with [m]athematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . . [T]he determination of damages is a matter for the trier of fact . . ." Id., 224-25.
The plaintiff paid Capital $2,800 for the removal and disposal of asbestos. The material breach of the contract by Capital made the plaintiff's asbestos abatement problem worse by disbursing debris about the premises, and led to additional payments of $3,950 to Reliance Environmental, LLC to prepare an asbestos removal plan and $11,850 to Charles Abatement to actually perform the work. In total, the plaintiff has paid $18,600 for a contract valued at $3,600. The difference in value between the contract and the cost the plaintiff ultimately had to pay is $15,000. The court finds that proper compensation to the plaintiff for Capital's breach of contract is $15,000. This amount places the plaintiff in the same economic position it would have been in had Capital fully performed pursuant to the terms of the original contract.
II
The second count of the plaintiff's complaint alleges that both Capital and Taylor were negligent in their performance of the contract. Specifically, the defendants were negligent because (i) they "did not properly contain asbestos within the original area of contamination, but rather allowed the asbestos to spread to other portions of the yard and premises of the plaintiff," (ii) Taylor "failed to properly supervise the work being done in order to prevent the asbestos from spreading to other portions of the plaintiff's premises," (iii) "the defendants held themselves out to be experts in the area of asbestos removal and subsequently failed to use the level of skill required to properly perform the work" and (iv) they "failed to warn the plaintiff . . . of the dangers existing at the job site in order to prevent the asbestos contamination from spreading to other parts of the plaintiff's premises."
"Negligence is a breach of duty." (Internal quotation marks omitted.) Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990). The duty to use care may arise from a contractual relationship between the parties. Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975); Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952). "[T]he same course of conduct may sound both in tort and in contract." Hill v. Williams, 74 Conn.App. 654, 660, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). "In such cases, however, the duty relates to the performance of the contract. See Scribner v. O'Brien, Inc., 169 Conn. 389, 401, 363 A.2d 160 (1975)." Abington Mutual Fire Ins. Co. v. Somers Oil Co., 38 Conn.Sup. 625, 628, 458 A.2d 403 (1983).
There was both lay fact testimony and expert opinion evidence from Lomax, Dahlem and Vidya Trivedi, an environmental engineer employed by Reliance, which the court credits and which supports a finding that the defendants were negligent. Taylor's testimony further supports a finding that whoever removed the furnace did so negligently.
In his testimony, Taylor suggested that the plaintiff was negligent because it had not applied for and received a demolition permit. The defendants have not filed any pleadings claiming comparative negligence. Accordingly, the plaintiff had no burden under the law to prove that it exercised reasonable care; it is presumed. See Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn.App. 448, 458-61, 998 A.2d 1228 (2010). Moreover, because the plaintiff's building was being renovated, not demolished, the plaintiff was not required to obtain a demolition permit.
The court finds that Capital acted negligently in purporting to remove the asbestos from the plaintiff's property. Specifically, Capital did not properly contain asbestos within the original area of contamination and allowed the asbestos to spread to the yard and other parts of the plaintiff's premises.
The remaining question is whether Taylor is responsible for the dispersal of asbestos. Taylor testified that he was merely Capital's salesman and had nothing to do with the performance of the contract, although he was on the premises during the job. Although Lomax did not observe the work being performed in the basement, he did observe Taylor instructing an employee as a supervisor would before the work was started. After most of the work was performed in the basement, Lomax observed Taylor driving a backhoe down the street. When Dahlem questioned Taylor about what had happened to the boiler and connecting pipes, Taylor responded that they had been covered, put in a dumpster and were en route to an authorized landfill. However, Taylor refused to identify the landfill or the entity that had performed air sampling after the work. Although Taylor is neither an officer of Capital, nor a licensed asbestos supervisor or project manager, Taylor has had experience in asbestos removal since the mid 1990s and clearly knew a great deal about asbestos removal.
"Under principles of agency law, an agent may be individually liable for torts committed by him, even though the agent contends that such acts were committed on behalf of the principal." Brown v. Ellis, 40 Conn.Sup. 165, 169, 484 A.2d 944 (1984). "[T]he actual perpetrator of a positive and obvious wrong can never exonerate himself from personal liability by showing that he was acting as the agent or servant of another, or even by his superior's command." Bennett v. Ives, 30 Conn. 329, 334 (1862); see also Scribner v. O'Brien, Inc., supra, 169 Conn. 404 ("Where . . . an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby").
"It is fundamental that circumstantial evidence may be as cogent and convincing as direct evidence . . ." (Internal quotation marks omitted.) State v. Taylor, 153 Conn. 72, 78, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S.Ct. 1372, 16 L.Ed.2d 442 (1966).
The court finds that Taylor is liable for his negligence as alleged in the second count.
The court again turns to the issue of damages. In cases involving injury to property caused by negligence, the basic principle of damages is fair, just and reasonable compensation for the actual loss sustained. Cadwell v. Canton, 81 Conn. 288, 292, 70 A. 1025 (1908). "Specifically, in Connecticut, [d]amage to real estate is measured by the diminution in value to the plaintiff's property caused by the tortious acts of the defendant. Diminution in value may be determined by the cost of repairs, so long as the cost does not exceed the former value of the property and the repairs do not enhance the value higher than it was prior to the damage." (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 371 n. 9, 952 A.2d 73 (2008). On the second count, the court finds that fair, just and reasonable compensation to the plaintiff is the cost of repairs, which is the cost of the new abatement study performed by Reliance and the cleanup services rendered by Charles Abatement Services, that is, $15,800.
The court finds the issues for the plaintiff on the defendants' counterclaim, which sought the remaining unpaid balance of $800 on the original contract price. Judgment shall enter for the plaintiff on the counterclaim.
The court finds the issues for the plaintiff on both counts of the complaint. Judgment shall enter in favor of the plaintiff and against the defendants in the amount of $15,000, plus interest of $1,500.00.
Interest is calculated at five percent per annum for two years. General Statutes § 37-3a sets a maximum rate of prejudgment interest at ten percent. See Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 765-66, 699 A.2d 81 (1997); White Oak Corp. v. Dept. of Transportation, 217 Conn. 281, 297, 585 A.2d 1199 (1991). Economic conditions during the past two years do not warrant an award of prejudgment interest of ten percent. Employing the criteria used in part V of Shelton v. Wiacek Farms, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 4001956 (Feb. 24, 2009, Levin, J.), I find that an interest rate of five percent per annum is reasonable and just.