Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00597-IVIRK Document 112-4 Filed 12/07/2004 Page 1 of 4
LEXSEE 2001 CONN. SUPER. LEXIS 1733
Shoreline Care Limited Partnership v. Jansen & Rogan Consulting Engineers, P.C.
et al.
X06CV940155982S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF
WATERBURY, COMPLEX LITIGATION DOCKET AT WATERBURY
2001 Conn. Super. LEXIS 1733
June 20, 2001, Decided
June 20, 2001, Filed
NOTICE: [*1] THIS DECISION IS UNREPORTED those set forth in the tenth, eleventh and twelfth counts of
AND MAY BE SUBJECT TO FURTHER APPELLATE the fourth amended complaint.
REVIEW. COUNSEL IS CAUTIONED TO MAKE AN
INDEPENDENT DETERMINATION OF THE This litigation arose out of the construction of Evergreen
STATUS OF THIS CASE. Woods Continuing [*2] Care Retirement Community in
North Branford, Connecticut (the project). The defendant
DISPOSITION: Motion for summary judgment granted. Weitz Company, Inc. (Weitz) contracted with the
Shorelines' complaint against Janazzo contained in tenth, plaintiff Shoreline Care Limited Partnership (Shoreline)
eleventh and twelfth counts of operative complaint on October 5, 1989, to provide "general contractor
dismissed. services" with respect to Phase I of the project. Weitz
was obligated to perform general contractor work,
LexisNexis(R) Headnotes including the selection of its subcontractors on all
portions of the work. Phase I of the project included the
construction of the community center, nursing wing, and
JUDGES: ROBERT F. McWEENY, J. buildings A and B of this large, lifecare facility.
OPINIONBY: ROBERT F. McWEENY The plaintiff and Weitz on April 30, 1991, entered into a
second contract to complete Phase II of the project,
OPINION: MEMORANDUM OF DECISION RE: which included the completion of the north
JANAZZO HEATING AND AIR CONDITIONING neighborhood. Weitz contracted to perform general
INC.'S MOTION FOR SUMMARY JUDGMENT ( # contractor services, including the selection of its
251.50) subcontractors on Phase II of the work.
The defendant, Janazzo Heating and Air Conditioning, Shoreline also entered into a contract with Technical
Inc. (Janazzo), moves pursuant to Practice Book§ 17-49 Plamring Associates, Inc. (TPA) as its architect for
for summary judgment as to the tenth, eleventh and Phases I and II of the project. TPA is not a party to this
twelfth counts of Shoreline Care Limited Partnership's litigation. The defendant Jansen & Rogan Consulting
(Shoreline) fourth amended complaint filed October 7, Engineers, P.C. (Jansen & Rogan) was hired by TPA to
1997. The tenth count of the complaint is a breach of design the heating, ventilation and air—conditioning
contract claim, the eleventh count is a negligence claim (HVAC) [*3] system.
and the twelfth count is a Connecticut Unfair Trade
Practices Act ("CUTPA") claim. There are no other Weitz, the general contractor on the project,
claims asserted by Shoreline against Janazzo except for subcontracted with the defendant/third-party defendant
J anazzo to fumish the labor, materials and equipment for

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2001 Coma. Super. LEXIS 1733, *
the installation of the HVAC system for Phases I and II Weitz already has been entered following the arbitration
ofthe project. proceeding between Shoreline and Weitz. The motion
also asserts that Sh0reline‘s claims based on negligence
Weitz completed its work on the project by December of and CUTPA are barred by the economic loss rule as well
1992, and was paid in full for its services. Shoreline as by the applicable statutes of limitations. Shoreline has
subsequently notified Weitz that there were defects and opposed the motion for summary judgment.
inadequacies in the HVAC system, and claimed that
Weitz should have notified Shoreline of these design The court heard argument on the motion for summary
defects. Shoreline asserted a claim against Weitz for the judgment on May 14, 2001. The parties were afforded
cost of restructuring the system. On June 7, 1994, the opportunity to file subsequent memoranda, which
Shoreline filed a demand for arbitration, claiming that were filed by May 29, 2001.
Weitz had breached the contract. Shoreline sought
arbitration of all disputes under the Phase I and Phase Il "Summary judgment shall be rendered forthwith if the
agreements. Weitz agreed to arbitrate the Phase Il pleadings, affidavits and any other proof submitted show
disputes, but refused to arbitrate any claims arising out of that there is no genuine issue as to any material fact and
the Phase I agreement. Weitz successfully pursued an that the moving party is entitled to judgment as a matter
injunction preventing the arbitration of any dispute of law . . . In deciding a motion for summary judgment,
involving Phase I in Weitz C0. v. Shoreline, /994 Conn. the trial court must view the evidence in the light most
Super. LEXIS 2779, Superior Court, judicial district of favorable to the nomnoving [*6] party . . . The party
New Haven at New Haven, docket number 365509 seeking summary judgment has the burden of showing
(November 3, 1994) (Booth, J.) affd, Weitz Company, the absence of any genuine issue [of] material facts
Inc. v. Shoreline Care Limited Partnership, 39 Conn. which, under applicable principles of substantive law,
App. 64/, 666 A.2d 835 (/995). [*4] entitle him to judgment as a matter of law . . . and the
party opposing such a motion must provide an
The arbitration on Shoreline's claims against Weitz evidentiary foundation to demonstrate the existence of a
arising out of Phase ll of the project took approximately genuine issue of material fact . . ." (Citations omitted.)
22 days to complete. The arbitrators issued their award Appleton v. Board of Education, 254 Conn. 205, 209,
on January 18, 1996, assessing no damages against 757 A.2d /059 (2000). "A material fact is a fact that will
Weitz. The award of no damages was confirmed by make a difference in the result of the case . . . The facts
judgment entered in Weitz Company Inc. v. Shoreline at issue are those alleged in the pleadings . . . (Citations
Care Limited Partnership, Superior Court, judicial omitted; intemal quotation marks omitted.)
district of New Haven at New Haven, docket number Mountaindale Condominium Assn. v. Zappone, 59 Conn.
365509 (February 18, 1997) (Hodgson, J,). App. 3//, 3/5, 757 A.2d 608 (2000). "In ruling on a
motion for summary judgment, the court's function is not
In March of 1996, Shoreline moved to cite in Weitz as a to decide issues of material fact, but rather to determine
defendant in this pending action, commenced against whether any such issues exist." Nolan v. Borkowski, 206
Jansen & Rogan in November of 1994. The motion to Conn. 495, 500, 538 A.2d 1031 (/988). "Summary
cite in Weitz was granted, and Shoreline filed a third judgment may be granted where the claim is barred by
amended complaint on April 30, 1996. the statute of limitation." Dailv v. New Britain Machine
Co., 200 Conn. 562, 566-70, 5/2 A.2d 893 (/986). [*7]
On May 20, 1997, Weitz filed a motion to implead
J anazzo for indemnification ( # 163), which was granted The court grants the motion for summary judgment as to
in June 1997. On October 7, 1997, Shoreline moved the breach of contract claim contained in the tenth count
pursuant to General Statutes § 52-/ 02a for permission of the fourth amended complaint.
to assert a direct action against Janazzo ( # 171). The _
resulting complaint is the fourth amended complaint that It is clear from an examination of the facts alleged in the
is the subject of this motion for summary judgment. tenth count that Shoreline itself did not enter into the
contract on which it is suing Janazzo; rather, the contract
Janazzo moves for summary judgment on the basis that which Shoreline claims Janazzo breached was the
Shoreline is [*5] not a third-party beneficiary of the Weitz/Janazzo contract, in two parts. The complaint at
Janazzo/Weitz contract and thus does not have standing paragraph 24 refers to the August 22, 1990 contract for
to maintain its breach of contract claim set forth in the the Phase I HVAC system; paragraphs 25 and 26 refer to
tenth count. Janazzo also asserts that the breach of the January 9, 1992 subcontract regarding Phase II
contract claim as to the Phase Il contract is barred by the HVAC system. Shoreline seeks to enforce the
doctrine of res judicata because a judgment in favor of Weitz/Janazzo contracts as a third-party beneficiary.

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2001 Conn. Super. LEXIS 1733, *
where the language is clear and unambiguous, as here, it
Our Supreme Court recently has had the opportunity to becomes a question of law for the court. Connecticut
review a third—party beneficiary issue in Gazo v. National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d
Stamford, 255 Conn. 245, 765 A.2d 505 (2001). The 684 (1992); [*10] Thompson & Peck, Inc. v. Harbor
court affirmed that the law regarding the creation of Marine Contracting Corp., 203 Conn. 123, 130-31, 523
contract rights in third parties in Connecticut is . . . well A.2d 1266 (1987). "Where there is definitive contract
settled . . . The ultimate test to be applied [in determining language, the detemrination of what the parties intended
whether a person has a right of action as a third—party by their contractual commitments is a question of law."
beneficiary] is whether the intent of the parties to the Mulligan v. Rio, 229 Conn. 716, 740, 643 A.2d 1226
contract was that the promisor should [*8] assume a (1994).
direct obligation to the third-party [beneficiary] and . . .
that intent is to be determined from the terms of the ln Gateway Co. v. DiNoia, 232 Conn. 223, 230-32, 654
contract read in the light of the circumstances attending A.2a' 342 (1995), the Connecticut Supreme Court found
its making, including the motives and purposes of the that the determination of whether a party was a third-
parties . . . party beneficiary under a lease agreement was a question
of law because the language of the lease agreement was
The requirement that both contracting parties must intend "clear and undisputed." The pertinent portion of the
to confer enforceable rights with respect to the third contract at issue in this case (the Weitz/Janazzo
party rests in part at least, on the policy of certainty in contracts) is equally clear and undisputed. Shoreline was
enforcing contracts. That is, each party to a contract is not an intended beneficiary of the Weitz/Janazzo
entitled to know the scope of his or her obligations contract. The motion for summary judgment on the tenth
thereunder. That necessarily includes a range of potential count of the fourth amended complaint is granted. nl
third persons who may enforce the terms of the contract.
Rootiiig iiic iiiiigc .0f poiiiiiiiiii tiiiid. panics .iii the nl Having decided that Shoreline lacks
intention of both parties, rather than the intent of just one . . .
of the parties, is a sensible way of minimizing the risk Staiidiiig to iisscii . 3 coiitiaci .ciaim against
that a contracting party will be held liable to one whom `iaiiiiZZO’ the com Wiii not Cictiiiiiiiiic Whether ics
he neither knew nor le itimatel could be held to know Jiiliiiiata picciiidcs Siioiciiiic S contract ciaim
i 8 Y » -
Wsuii uitimmiy be its mia Griggs. eet efpheee H efthe eeeteee
(Citations omitted.) 255 chan. at 261-62. In this ease, [ill]
eee eeeeeet eeeeeeeee eeeeieeeuy eteeleee e mt isss is in its mm rei summa. iii mm
contractual relationship between the subcontractor th t th 1. d CUTPA 1 . yi dg h
(Janazzo) and the owner (Shoreline). The ii C iicg igiiiicc im C aims assciiic iii i 6
Weitz/Shoreline [*9] contract provides at Article 5.3 Cicviiiitii ami iiivciiiii counts aic baiicd by the ePP"°"bl°
entitled "Subcontractual Relations" that "the Contractor ;?;ii1;;Saz;i§ii§;iT;i§gfcfgiiigcggiggiilgtggugginilaflii
ijijigk;q;;i;C$?§1ging§i;);O?l;a§§i;éOgiugigioiifigic Eilfilig Srhoreline alleges that Janazzo's negligent acts occurred
to the Contractor by terms of the Contract Documents . . Om August 22’ i990 iiimugii `iiiiic iii i993' scc tciitii
." The general contract further provides in Article 1.1.2 COiiiii’ paiagiapiis i-4O’ incorporated iii the cicvcmh and
that "the Contract Documents shall not be construed to iwciiiii cOiimS' `iiiiiazzo assciis that the Statutes of
i mtmiai iiimsiip it any thi . . . ti) eeeeeeeee.eee.eete mee Feeerteeeleee 7z1994»Weee
between the owhst and the siihstiiitittstsi . . ln this the . p""“"ff "?“‘*"?id ‘“b‘"*"‘°‘l p‘°°°°d‘“$S aga“‘?*
instance, the subcontractor Janazzo knew and could rely Weitz The eleeeee ee th? iiibitmtion pmcccdmgg ee m
upon the express terms of its contract (Which this action, were that Weitz subcontractor Janazzo knew
incorporated the general contract) with Weitz that no Oi Siioiiid have kiiowii Of the HVAC? dcsigii dciiciciicics
contractual relationship of any kind would be created but faiied io icpoii them Siioieiiiic asserts that tiic
between Jamzzo and Shorclmfh statrlue offlrmrtgtrlpnslwas tolled lby Eubsequentvxrepzgr
wor per omre y anazzo at t e vergreen oo s
Janazzo contends and this court agrees that Shoreline faciiity Occumiig up te Oeteeee °fi994‘
was not a third-party beneficiary to the Weitz/Janazzo
contract; Shoreline consequently lacks standing to assert n2 General Statutes § 52-584, entitled
a claim that Janazzo violated its contract with Weitz. "limitation of action for injury to person or
Although ordinarily the question of contractual intent property," provides a two-year limitation period
presents a question of fact for the ultimate factfinder, "from the date when the injury is first sustained

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2001 Conn. Super. LEXIS 1733, *
or discovered or in the exercise of reasonable defendant" Id., 527. Consequently, Shoreline tiled its
care should have been discovered, and except that fourth amended complaint Lmder General Statutes § 52-
no such action may be brought more than three 102a after the statute of limitations had run as to
years from the date of the act or omission Janazzo. Shorelines' negligence and CUTPA claims
complained of. . ." [*12] against Janazzo are time-barred. n4 The motion for
summary judgment on the eleventh and twelfth counts is
granted. n5
113 General Statutes § 42-lmgm provides n4 Shoreline seeks to avoid this result by
with respect to CUTPA Claims that Han action reliance on General Statutes § 52-584a which
brought under this section may not be brought mvides that ,,110 action Shall be [Hou ht
more than three years after the occurrence of a P . . ' ' .' . g
. . . ,, against any architect, professional engmeer . . .
Vlolamm Ofthls Chaptcn performing or furnishing the design, plamiing . . .
or construction of . . . such improvement more
. . . ,, . than seven years after substantial completion of
l$`§.J$lZ §“.§fII?Z?tl$.`£l.J§0§€a§€?aS‘§a.’I.°f.§Z1‘iia§Z ;;;g,uj§¤I;;;j;;g"linfllggjiogtanggoyggfssugg
allege actual reliance upon the repairs being made as the actions and docs not extend Ether applicable
basis for not filing a lawsuit." Beckenstein v. Potter & Statutes of limitations R A Civitello C0 V City
Carrier, Inc., 191 Conn. 150, 159, 464 A.2d 18 (1933). 0fNeW Haven 6 Coén ZI2 50442él, 542
Shoreline has not asserted what repairs were made by (1986) [*14] ' ' P ` ’ '
Janazzo up to October 1997, nor has Shoreline alleged `
any reliance on those repairs so as to cause it to delay
tiling a claim directly against J anazzo.
The court finds that the statute of limitations for the 3;vii;]/lingngc23§;t1;h2;;§;1;;;qii3i;?t;; TSC?
Shoreline's claims against Janazzo in negligence expired th rt .11 t dd h 1. . f h’
pursuant to statute in June of 1995 and regarding B cou. Wl no il mss t 6 applcamm 0 t C
CUTPA in June of 1996. The application of the statutes Ccommlc loss docmna
of limitations as to Shoreline's claims against Janazzo are
not affected by the fact that this litigation was
commenced in 1994. The Connecticut Appellate [*13] CONCLUSION
Court in Vincent v. Litchfield Farms, Inc., 21 Conn. App. Th t. f . d . d
524, 574 4.24 834 (1990), held that on me basis amaze ° ‘?‘°{°“ °‘. S“‘““?a‘7 J“ gmcm ‘? gr?‘““’ ·
Mm) ofthe Federal Rules Of Civil Procedure, on which Shorelines complaint against Janazzo contained in the
Connecticut’s impleader statute is based, "there was no tcmh’ lllwcnih and twelfth counts Of the Opemnvc
intent on the part of the legislature to enlarge the rights Complamt is dlsmlsscd
of an original plaintiff or to extend the time in which he
or she might bring a direct action against a third-party ROBERT F` MCWEENY2 J'