Wagner v. Murphy Moving and Storage, Inc.

Full title: PAUL WAGNER v. MURPHY MOVING AND STORAGE, INC

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Mar 6, 2006

2006 Ct. Sup. 4719 (Conn. Super. Ct. 2006)

Opinion

No. CV04-0103847 S

March 6, 2006

MEMORANDUM OF DECISION

KEVIN E. BOOTH, JUDGE.

FACTS

This case arises out of an alleged contract of bailment of personal property belonging to the plaintiff, Paul Wagner, and stored by the defendant, Murphy Moving Storage Company (Murphy). The plaintiff brought this action when he learned that his personal property was missing from his assigned storage lot at the defendant's facility and that the defendant was unable to locate such property. The plaintiff alleges that he is entitled to relief on the grounds that the defendant breached the bailment contract (count one); that the defendant was unjustly enriched (count two); and that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The plaintiff's property moved from one moving and storage company to another through various acquisitions of companies. The facts are both unclear and disputed as to the stored property's path during this series of acquisitions. The court finds as a fact that eventually the stored goods made its way to Gardella Moving Storage, Inc. (Gardella), sometime between 1988 and 1992 and that the items ended up with the defendant toward the end of 1997. The defendant acquired the plaintiff's goods when it purchased Gardella's assets after the seizure of such assets by the Internal Revenue Service (IRS). Gardella was owned by Dennis Knapp, who is the husband of Kathleen Murphy, the owner and president of the defendant Murphy.

There is an extremely wide divergence in the testimony of the parties concerning the plaintiff's claim that in the spring or summer of 1996, he went to check on his items that were in storage with Gardella at Gardella's place of business on Hamilton Street in New Haven, CT. The plaintiff claims that at that time he saw all of the items that were the subject of the alleged bailment and added some additional material to his storage lot. The defendant has submitted considerable testimony that no such visit ever occurred. The court finds that the plaintiff, who is 88 years old, is clearly confused as to some of the circumstances of the visit, nevertheless, the court finds as a fact that the plaintiff did see the items that are the subject of the bailment and added some additional material to his storage lot.

Some time after the defendant took control of Gardella's assets, the plaintiff's property was moved by the defendant from the New Haven location to a location in Clinton, CT. The plaintiff claims that this movement was an anticipatory breach of the contract between the parties. The court finds that the plaintiff permitted his property to be stored with the defendant and made payments to the defendant creating a new bailment with the defendant.

On December 22, 1997, the defendant sent the plaintiff a written storage contract. (Defendant's Exhibit A.) The plaintiff, claiming not to know why the document was sent to him, contacted the defendant. In response, the defendant sent a letter of explanation. (Defendant's Exhibit B.) The letter of explanation suggested that the plaintiff re-inventory his storage unit. However, the contract did not require either an inventory or a re-inventory for the continuation of storage with the defendant. An inventory was necessary to obtain insurance on the plaintiff's property. In the absence of insurance, the contract contained a provision limiting the defendant's liability to $2,000.00. According to Kathleen Murphy's testimony at trial, the contract was a standard form issued by Melvin Printing and used by every storage facility in the area, with no option to alter or adapt the negotiated terms.

In May of 2003, the plaintiff went to the Clinton location to check on his personal property, which he believed was stored with the defendant. At that time, the defendant presented the plaintiff with a storage unit which the defendant claimed was the plaintiff's. The plaintiff insisted that it was not his container because the items inside were not his. Although the defendant never received an inventory prior to the commencement of this action, the plaintiff claimed that the missing property contained a four-drawer file cabinet, 24 cardboard banker boxes, a piece of wooden furniture to hold a small printing press and four wooden screens. The itemized list of contents, which includes several letters to the plaintiff from famous persons, is contained in Plaintiff's Exhibit 11.

Three paragraphs of Defendant's Exhibit A are of particular relevance to this dispute. Paragraph 3(f) provides as follows:

In no event shall the company be responsible for loss or damage to documents, stamps, securities, specie or jewelry or other articles of high and unusual value unless a special agreement in writing is made between the customer and the company with respect to such articles.

Paragraph 10 provides as follows:

The contract represents the entire agreement between the parties hereto and cannot be modified except in writing and shall be deemed to apply to all the property whether household goods or goods of any other nature or description which the company may now or any time in the future store, pack, transport or ship for the owner's account.

Finally, and most importantly, Paragraph 3(e) provides as follows:

Unless a greater valuation is stated herein, the depositor or owner declares that the value in case of loss or damage arising out of storage, transportation, packing, unpacking, fumigation, cleaning or handling of the goods and the liability of the company for any cause for which it may be liable for each or any piece or package and the contents thereof does not exceed and is limited to 30c per lb. per article, or for the entire contents of the entire storage lot does not exceed and is limited to $2,000, upon which declared or agreed value the rates are based, the depositor or owner having been given the opportunity to declare a higher valuation without limitation in case of loss or damage from any cause which would make the company liable and to pay the higher rate based thereon.

It is undisputed that the plaintiff made no declarations, filed no inventory, and paid no increased premium for insurance coverage.

DISCUSSION Waiver or Limitation of Liability

The court finds as a matter of law that the limitation of liability limiting the defendant's liability to $2,000.00 is valid and applicable in this case.

The plaintiff makes a number of arguments urging the invalidity of the limitation. He argues first that the contract provision limiting damages is only applicable if, in fact, the loss of property occurred during the term of the contract. Because the testimony was that the plaintiff had viewed his property at Gardella, that all of the storage at Gardella was transferred to Murphy and that the plaintiff signed the contract in 1998, the court finds that the loss of the property occurred during the term of the contract.

The plaintiff next claims that the move of the property from New Haven to Clinton was a breach of the contract. However, this moving of the property occurred long before the written contract was signed. The court finds that the plaintiff was given reasonable notice that he could either sign the written contract and take out insurance coverage, or he could remove his property and find some other means of storage.

The plaintiff's most serious challenge to the limitation relies on Hanks v. Powder Ridge Restaurant Corp. 276 Conn. 314 (2005). Hanks is now the seminal case in Connecticut on the enforceability of limitations on liability for one's own negligence. The court, in holding that the waiver of liability for injuries sustained at a ski area was violative of public policy, was guided, but not limited to the factors set forth in Tunkl v. Regents of the University of California, 383 P.2d 441 (1963). Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 330. The Tunkl factors are: (1) the agreement concerns a business generally suitable to public regulation; (2) the party seeking a waiver is engaged in a business of great importance to the public, which is often a matter of practical necessity to the public; (3) the party seeking waiver holds himself out to perform this service to the public; (4) as a result of the nature of the transaction, the party seeking waiver has a bargaining advantage over the public; (5) the party seeking waiver provides an adhesion contract with no provision for additional fees to protect against negligence; and (6) the property is placed under the control of the party seeking waiver, subject to the risk of carelessness of that party. Id., 328.

The contract in question, rather than exculpating the defendant from its own negligence, fixes a declared value of the goods in the absence of an inventory and declaration. When a bailment contract fixes the value of bailment and the property is not returned, the bailee may recover the agreed value. Beaudette Graham v. Tator, 107 Conn. 712, 715 (1928). Further, when a contract stipulates that the bailee may insure the goods but further stipulates that in the event of a total loss, liability shall not exceed the valuation stated by the bailor, recovery for the loss is limited to the stated amount. Fire Ass'n. of Philadelphia v. Saks Co., Inc., 223 F.2d 822, 823 (2d Cir. 1955).

The court finds that under the six part Tunkl test, the contract's liability limitation provision does not violate public policy. Specifically, the court finds that the storage business is not generally suitable to public regulation nor that the defendant is engaged in a business of great importance to the public that is often a matter of practical necessity to the public. The defendant is holding itself out to perform its services for the public. The defendant arguably has bargaining advantage over the public, but the public has the full right to protect itself by filing inventories and purchasing insurance coverage. The defendant has not provided an adhesion contract with no provision for additional fees to protect against negligence. In fact, the defendant has specifically provided the possibility of such protection. The property was placed under the control of the defendant, subject tote risk of carelessness of the defendant.

The court concludes that the limitation was neither ambiguous, unconscionable, nor against public policy. The evidence established that the plaintiff possessed knowledge and had carefully examined the contract.

Unlike Hanks, the plaintiff had the opportunity to purchase additional insurance. The court, in Hanks, gave great significance to the fact that the defendants did not offer the plaintiff the opportunity of procuring protection against negligence. In Hanks, the court held that "[n]ot only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost." Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 333. The Hanks court also examined at great length safety concerns, sporting risks, families with children and possible long-term physical injuries. In Hanks, the defendant was attempting to exempt itself from responsibility for severe and life threatening situations, something that the court there found was against public policy. The case before this court has no impact on personal safety.

The plaintiff further claims that the defendant violated CUTPA. The plaintiff's CUTPA claim incorporates by reference the breach of contract claim made in count one of the complaint. The plaintiff makes no additional or new allegations.

"[T]o recover under CUTPA for a simple breach of contract, the plaintiff must show substantial aggravating circumstances . . . Under [CUTPA] intent to deceive is not relevant." (Internal quotation marks omitted.) Thames River Recycling v. Gallo, 50 Conn.App. 767, 784 (1998) (upholding trial court's jury instructions containing such language); see Princeton Capital Finance Co., LLC v. Webster Bank, Superior Court, judicial district of Hartford, Docket No. CV 99 0590676 (February 4, 2002, Peck, J.) ( 31 Conn. L. Rptr. 360) ("this court agrees with the vast majority of Superior Court decisions concluding that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]"). The plaintiff's allegation of negligence referenced in its breach of contract claim is insufficient to show a CUTPA violation. While acts of negligence can be the basis of CUTPA claims, those negligence acts must still satisfy the criteria set forth in the "cigarette rule." A-G Foods Inc., v. Pepperidge Farm, Inc., 216 Conn. 200, 215 (1990). Our Supreme Court has held that negligence while injurious to a consumer has to amount to an "immoral, unethical, oppressive, or unscrupulous practice." (Internal quotation marks omitted.) Id., 217. While the plaintiff makes numerous allegations concerning unscrupulous practice, the most serious of those claims is that the limitation on liability is unconscionable and ineffective. The court simply does not agree with the plaintiff on this matter. None of the other claims, in the opinion of the court, rise to the level required by the cigarette rule. The court questioned at trial whether it would be appropriate for the court to issue a mandatory injunction requiring an examination of all the boxes at the defendant's facility that were previously stored at Gardella for the purpose of attempting to locate the plaintiff's possessions. At trial, the court had not concluded whether the limitation contained in the contract was valid and enforceable.

The plaintiff must show the lack of an adequate remedy at law to obtain an injunction. Stocker v. Waterbury, 154 Conn. 446, 449 (1967). Under Connecticut law, if a bailment contract fixes the value of the bailment, and the property is not returned, the tailor may recover the agreed value. Beaudette Graham v. Tator, supra, 107 Conn. 715. Since the court has found the limitation enforceable, the plaintiff has an adequate remedy at law in the recovery of the agreed upon $2,000.00. In addition, in attempting to weigh the equities, which would be required for the issuance of an injunction, the defendant has shown that opening all the containers would involve a significant expenditure of cost, time and potential risk of customer loss. The defendant argues that if it were to open its customers' storage containers, the defendant would need to contact its customers and request that its customers schedule a time to open their container. Further, the defendant argues that it would need to halt all warehouse access for a minimum of two to three months to orchestrate this endeavor. To inspect each container, in an effort to identify all "Gardella Containers," all of the storage containers would need to be physically moved so that the exterior stencil could be identified. The court determines that the plaintiff has an adequate remedy at law. Further, even in the absence of an adequate remedy, the potential exposure of the defendant to costs, expenses and possible lawsuits, incident to opening all of the containers, would cause such great harm to the defendant that the issuance of a mandatory injunction would not be equitable.

Defendant argues that the plaintiff's testimony as to the value of his property is impermissible on the grounds that it is hearsay and an expert opinion. The defendant concedes in its brief that an individual can testify about the value of personal property based upon his own knowledge. Plaintiff's Exhibit 11 contains an itemization of the articles claimed to be in the possession of the defendant. The total of those items is shown by the plaintiff to be $79,740.00. Some of the claims include correspondence from prominent people; Senator Paul Douglas, $1,000.00, President Ian Morrison, $500.00; Angus Maclean Thuermer, $20,000; John W. Hill, $10,000.00. The plaintiff was not disclosed as an expert and admitted in his testimony that many of his conclusions as to value were arrived at by consulting experts or written materials. When all hearsay is eliminated, the court finds that the plaintiff had an insufficient basis to sustain his estimate of $79,740.00. The court has found that the defendant's damages are limited by contract to $2,000.00 and the court is persuaded that the defendant's testimony adequately supports an award in the amount of $2,000.00.

CONCLUSION

The court finds for the plaintiff on count one of his complaint and awards damages in the amount of $2,000.00, plus court costs. The court finds for the defendant on count two of the complaint because it finds no unjust enrichment over and above the contractual agreement. The court finds for the defendant on count three of the complaint because the plaintiff has not borne his burden of proving a CUTPA violation.