Opinion
No. CV06-5001339 S
October 31, 2007
MEMORANDUM OF DECISION
The plaintiff, Middlesex Mutual Assurance Company, commenced this suit against the defendant, Lemon Builders, LLC, by service of process on August 31, 2006. The amended, and now operative, complaint, filed March 12, 2007, alleges the following facts. The plaintiff, Middlesex Mutual Assurance Company, insured Timothy and Nancy Haviland, under a homeowner's insurance policy. In January 1998, the plaintiff's insureds entered a contract with David Lemon, president of the defendant, Lemon Builders, LLC, to construct a new home in Old Saybrook. The defendant completed construction and received payment. On or about January 14, 2004, a pipe froze within the insureds' home, causing damage to real and personal property. The plaintiff paid the damage amount, $648,604.23, in accordance with the insurance policy.
The plaintiff alleges the damage caused by the frozen pipe was the result of the defendant's breach of an implied warranty to build the home in a skillful and workmanlike manner, as the defendant failed to properly insulate the pipe to protect against such occurrence. On February 2, 2007, the defendant filed an answer and special defense, asserting the plaintiff's claim was barred by expiration of the implied warranty found in General Statutes § 47-118(e), and by the applicable statute of limitations found in § 47-121.
The New Home Warranties Act, chapter 827 of the General Statutes, is codified in §§ 47-116 to 47-121, inclusive. Section 47-118(e) provides: "The implied warranties created in this section shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first; and (2) in the case of an improvement not completed at the time of delivery of the deed to the purchaser, one year after the date of the completion or one year after taking of possession by the purchaser, whichever occurs first."
General Statutes § 47-121 provides in relevant part: "[T]he issuance by the building department of any municipality of a certificate of occupancy for any newly constructed single-family dwelling shall carry an implied warranty to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code or the customary application and interpretation of the building code of such municipality. No action shall be brought on such implied warranty but within three years next from the date of the issuance of such certificate of occupancy."
The defendant filed the present motion for summary judgment on February 22, 2007, asserting the same expiration of warranty and statutes of limitation grounds. Attached to the defendant's motion, inter alia, is the affidavit of Lemon and a copy of the certificate of occupancy. The plaintiff filed an objection to the defendant's motion on May 3, 2007. The defendant replied to the plaintiff's objection on June 11, 2007, and the plaintiff filed a rebuttal to the defendant's reply on August 13, 2007. The matter was heard on the short calendar on September 4, 2007.
DISCUSSION CT Page 18292
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 177 (2006)."Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
In support of its motion the defendant attaches the affidavit of Lemon who affirms that: the defendant entered into an oral agreement with the plaintiff's insureds to build a home on their property; the defendant's work on the property was completed on or prior to issuance of the certificate of occupancy on July 1, 2000; the plaintiff's insureds took possession of the completed home on or about July 4, 2000; the defendant did not deliver a deed to the plaintiff's insureds because they already owned the property. The defendant also attaches a copy of the certificate of occupancy issued by the Borough of Fenwick, Old Saybrook's building and zoning department. The certificate is dated July 1, 2000. It contains four official signatures, three of which are dated July 1, 2000, with the remaining signature dated October 10, 2000.
The defendant argues that the implied warranty in General Statutes § 47-118(e) expired one year following the delivery of the property to the plaintiff's insureds. Accordingly, by the time the pipes froze on January 14, 2004, this warranty no longer existed. The defendant contends that under General Statutes § 47-121, any action for breach of implied warranty must be brought within three years from the date of issuance of the certificate of occupancy, in this case July 1, 2000. Because the present action was not brought until August 31, 2006, the defendant argues it is time barred. Finally, the defendant points out that under General Statutes § 52-576, an action sounding in breach of contract must be brought within six years of the date that the cause of action accrues. Again, because the action was brought more than six years from the issuance of the certificate of occupancy, the defendant maintains it is time barred and summary judgment should enter.
In opposition, the plaintiff counters that it relies not on statutory warranties, but on a common-law warranty and the implied condition of every service contract that the service will be performed in a workmanlike manner. The plaintiff also cites General Statutes § 47-120 which states: "The warranties created in this chapter shall be in addition to any other warranties created or implied in law." The plaintiff argues that the pipes froze on the first instance of below-freezing weather after the completion of construction and that the loss runs from the date of the damage to the insureds' home, not from the date of occupancy. Citing to the case of Heath v. Palmer, 915 A.2d 1290 (Vt. 2006), the plaintiff maintains that a common-law implied warranty lasts a "reasonable length of time." The plaintiff contends that determination of what was a reasonable time for the plaintiff's insureds to have discovered the allegedly faulty insulation of their pipes constitutes a genuine issue of material fact precluding summary judgment in favor of the defendant.
As to the defendant's argument that a six-year statute of limitations applies pursuant to General Statutes § 52-576, the plaintiff points to the signature on the certificate of occupancy dated October 10, 2000. The plaintiff argues that the date of completion was October 10, 2000 and not July 1, 2000, as the defendant claims.
General Statutes § 52-576(a) provides in relevant part: "No action . . . on any simple or implied contract . . . shall be brought but within six years after the right of action accrues . . ."
1. Breach of Contract
"It is an implied condition of every service contract that the service will be performed in a workmanlike manner . . . A breach of this implied condition would be a breach of contract." (Citation omitted.) Ferrigno v. Pep-Boys — Manny, Joe Jack of Delaware, Inc., 47 Conn.Sup. 580, 582, 818 A.2d 903 (2003). In order to determine whether the plaintiff's cause of action here is barred by the six-year statute of limitations in General Statutes § 52-576, it must be determined when the plaintiff's cause of action accrued.
In Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 177, 62 A.2d 771 (1948), the plaintiff brought an action against the defendant for breach of contract stemming from the defendant's allegedly negligent insulation of the plaintiff's building. Although the defendant had completed work in 1935, the plaintiff did not become aware of the negligent manner of installation until 1945, when the walls of the building began to crack and leak. Id. The applicable statute of limitations on such contract actions, found in General Statutes, 6005 (the predecessor to today's § 52-576), was six years from the date when the cause of action accrued. Id., 179. The plaintiff argued that her cause of action did not accrue until 1945, when the damage became apparent. Id. The Supreme Court disagreed, finding the cause of action accrued instead when the faulty work was completed. Id., 180. The court noted the well established rule that "ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." Id., 179.
h the present case, Lemon affirms in his affidavit that the defendant's work, which would include insulation of pipes, was completed on or about July 1, 2000, the date the certificate of occupancy was issued. Therefore, the plaintiff's cause of action accrued, at the latest, on that date. The plaintiff argues that the presence of the October 10, 2000 signature on the certificate of occupancy evidences a genuine issue of material fact as to when the plaintiff's cause of action accrued. This admittedly unexplained date does not, however, contradict Lemon's sworn statement that the defendant's work was completed by July 1, 2000. In other words, there is no evidence that the defendant's allegedly negligent insulation of the plaintiff's insureds' pipes took place any later than July 1, 2000. Under General Statutes § 52-576, and in the absence of any allegation of fraudulent concealment; Kennedy v. Johns-Manville Sales Corp., supra, 135 Conn. 179-80; the statute of limitations on the plaintiff's cause of action ran until July 1, 2006. Because the plaintiff did not bring suit until August 31, 2006, the court finds its claim to be time barred.
2. Breach of Implied Warranty
Chapter 827 of the General Statutes concerns express and implied warranties on new homes. Section 47-118(a) provides that a newly constructed home contains implied warranties from the contractor to the purchaser that the home is "(1) [f]ree from faulty materials; (2) constructed according to sound engineering standards; (3) constructed in a workmanlike manner, and (4) fit for habitation . . ." The implied warranties created by § 47-118 terminate "(1) [i]n the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first; and (2) in the case of an improvement not completed at the time of delivery of the deed to the purchaser, one year after the date of the completion or one year after taking of possession by the purchaser, whichever occurs first." General Statutes § 47-118(e). Section 47-121 provides that the issuance of a certificate of occupancy by the building department of a municipality carries an implied warranty that the home complies with the building code of that municipality. The section further specifies that "[n]o action shall be brought on such implied warranty but within three years next from the date of the issuance of such certificate of occupancy." General Statutes § 47-121.
In Cashman v. Calvo, 196 Conn. 509, 511, 493 A.2d 891 (1985), the Supreme Court clarified that the one-year period contained in General Statutes § 47-118(e) does not limit the period within which an action based on breach of warranty must be brought. Instead, the statute defines the period during which an action for breach of warranty must arise. Id. In discussing when such a cause of action arises, the court stated: "we consider a cause of action under General Statutes § 47-118 to arise when the purchasers discover that a breach of the warranties entitling them to recompense has occurred. This interpretation is consistent with § 47-118(b), which limits the warranties to only those defects not apparent to a reasonably diligent purchaser at the time of the contract of sale. If the defect becomes reasonably discoverable within the one year term provided by § 47-118(e), the purchaser may claim a breach of the warranty, and the action on that breach, like any other action, need not be brought immediately, but only before it is barred by some statutory limitation." Id., 511.
Unlike § 47-121, which requires actions for breach of the implied warranty attached to the issuance of a certificate of occupancy be brought within three years of such issuance, § 47-118 does not contain a statute of limitations. The trial court in Cashman had opined that either the three-year limitation period of § 47-121 or the six-year limitation period of § 52-576 should apply. Cashman v. Calvo, supra, 196 Conn. 513. As it was unnecessary to resolution of the case at hand, the Supreme Court offered no opinion on what limitation period applies to actions brought under § 47-118. Id. Similarly, for the purposes of the present case, the court need not decide what period of limitations applies. The incident giving rise to the plaintiff's claim, the freezing of the plaintiff's insureds' pipes, occurred on January 14, 2004, and thus did not occur within the one-year period designated by § 47-118.
The plaintiff insists it relies not on statutory warranties, but on a common-law warranty that service contracts be performed in a workmanlike manner. In support of its argument, the plaintiff cites to the case of Heath v. Palmer, supra, 915 A.2d 1293, where the Vermont Supreme Court stated: "the general rule is that the duration of the implied warranty of habitability and good workmanship is determined by a `standard of reasonableness.'" The plaintiff also cites General Statutes § 47-120, which states that the warranties described by chapter 827 "shall be in addition to any other warranties created or implied in law."
This court disagrees with the plaintiff's arguments in this regard. First, the plain language of the New Home Warranties Act, General Statutes §§ 47-116 to 47-121, directly addresses the factual situation presented by the present case. Section 47-118(a) provides for an implied warranty on new home construction that the work is free from faulty materials, constructed according to sound engineering standards, constructed in a workmanlike manner, and fit for habitation. As previously noted, § 47-118(e) provides that such warranties are limited to one year. Although § 47-120 does indicate that the warranties contained in the New Home Warranties Act are in addition to other warranties created or implied by law, the plaintiff cites no Connecticut case, nor does the court's research find any case law, which would indicate that both a common-law warranty and the statutory warranties of §§ 47-116 through 47-121 apply to a scenario such as the present one. This court will not adopt an additional common-law warranty of habitability and good workmanship based solely on the law of another jurisdiction.
CONCLUSION
For the preceding reasons, the defendant's motion for summary judgment is hereby granted.