Opinion
DBDCV186025176S
04-05-2019
NORDIC BUILDERS, INC. v. TRADEMARC CONSTRUCTION, INC.
UNPUBLISHED OPINION
OPINION
D’Andrea, J.
The issue before the court is whether counts two and three of the plaintiff’s third amended complaint sounding in negligence and breach of express and/or implied warranty should be stricken because they are legally insufficient, in that they fail to state a cause of action upon which relief may be granted. The defendant contends that the second count for negligence is legally insufficient in that it is barred by the economic loss doctrine. Additionally, the defendant argues that the third count for breach of express and/or implied warranty is legally insufficient in that it sets forth an independent cause of action for breach of implied contract, and Connecticut does not recognize breach of implied contract as a standalone cause of action independent from breach of contract. In response, the plaintiff argues that the second count is legally sufficient because a count for breach of contract and negligence may be independent remedies and courts have never applied the economic loss doctrine to a construction case; and that the third count is an argument for causes of action in the alternative, and permitted by the Connecticut Practice Book, and thus is legally sufficient to withstand a motion to strike.
FACTS
As to both counts, the plaintiff alleges that the parties entered into an oral contract for the installation of a cedar roof on the plaintiff’s home located at 375 West Road, New Canaan, Connecticut, and the plaintiff alleges that the defendant installed said cedar roof with incorrect galvanized fasteners, either negligently or knowingly in complete disregard of current building codes and roofing standards. The plaintiff alleges that the defendant failed to comply with all existing building codes, regulations and fastener guidelines that require use of stainless steel fasteners on any structure located within fifteen miles of a body of salt water. The plaintiff also alleges that the defendant breached an express warranty to construct and install the roof on the plaintiff’s home in a workmanlike manner. Additionally, the plaintiff alleges that the defendant breached the implied warranty through the following: (1) the construction was not free from faulty materials; (2) the construction improvement was not done according to sound engineering standards; (3) the construction was not done in a workmanlike manner; and (4) the construction did not provide an implied warranty of habitability at its completion. As a result, the plaintiff incurred damages for the removal and replacement of the cedar roof.
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
I
Count Two: Negligence
Our Supreme Court has held that "the economic loss doctrine bars negligence claims that arise out of and are dependent on breach of contract claims that result only in economic loss." Ulbrich v. Groth, 310 Conn. 375, 410, 78 A.3d 76 (2013). "The economic loss doctrine bars negligence claims for commercial losses arising out of the defective performance of contracts ... The rationale for the doctrine is that, because parties to a contract are free to allocate the risks, insure against potential losses, and adjust the contract price as they [deem] most wise ... courts will not extricate them from their bargain and substitute a common-law tort remedy." (Citations omitted; internal quotation marks omitted.) Id., 390 n.14. Although Connecticut appellate courts have not yet addressed the applicability of the doctrine as applied to construction cases, Connecticut superior courts have had the opportunity to directly address this issue. In Mastrobattisto, Inc. v. Nutmeg Utility Products, Inc. Superior Court, judicial district of New Britain, Docket No. CV-15-6028626-S (February 23, 2017, Wiese, J.) (61 Conn.L.Rptr. 864), the court made a detailed outline of whether the economic loss doctrine applies to construction cases.
"[T]he economic loss doctrine is routinely applied to eliminate tort claims as a result of construction contracts[.] ... Three rationales have been used to eliminate tort liability based on the economic loss doctrine in construction contracts: (1) it maintains the fundamental boundaries of tort and contract law by limiting the economic loss arising in construction projects to the remedies provided by the parties’ contracts; (2) the doctrine is essential to the dynamics of the construction arena. If tort and contract remedies were permitted to overlap, uncertainty and unpredictability in allocating risk would increase and impede future business activity; and (3) the law of tort is primarily concerned with the protection of persons and property from losses resulting from injury while the policy considerations underlying contract law is the protection of expectations bargained for, such as profits." (Internal quotation marks omitted.) Id. "Others have found either that the economic loss doctrine has not been recognized in Connecticut or that the application of the ruling in Flagg [Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 (1988), overruled in part by Ulbrich v. Groth, supra, 310 Conn. 408-09, ] is limited to claims arising from the sale of goods." (Citations omitted; internal quotation marks omitted.) Mastrobattisto, Inc. v. Nutmeg Utility Products, Inc. supra, 61 Conn.L.Rptr. 867.
"The more persuasive argument is that the economic loss doctrine is not limited to claims arising under the UCC, and that the doctrine applies to construction contracts. Firstly, as discussed, a recent Supreme Court decision noted that one of the principles of the economic loss doctrine is whether a tort claim for economic damages is viable when there is some other contract between the parties, such as a service contract, that allocates or could have allocated the risks of economic loss." (Internal quotation marks omitted.) Mastrobattisto, Inc. v. Nutmeg Utility Products, Inc. supra, 61 Conn.L.Rptr. 868. "Secondly, even though the court in Flagg applied the economic loss doctrine to the sale of goods under the UCC, the court relied, in large part, on a federal case from Virginia, Princess Cruises, Inc. v. General Electric Co., 950 F.Supp. 151 (E.D.Va. 1996). In Princess Cruises, Inc., the court explicitly stated that [t]he economic loss doctrine has since been applied to contracts for repair services ... and contracts for services rendered as part of the construction or manufacture of products." (Internal quotation marks omitted.) Mastrobattisto, Inc. v. Nutmeg Utility Products, Inc. supra, 61 Conn.L.Rptr. 868. "Finally, public policy considerations are in favor of applying the economic loss doctrine to the present facts. More specifically, [t]he rationale for the doctrine is that, because parties to a contract are free to allocate the risks, insure against potential losses, and adjust the contract price as they [deem] most wise ... courts will not extricate them from their bargain and substitute a common-law tort remedy ... In addition, [a]n expansion of the economic loss doctrine has also been found to be more compelling in cases where [t]he parties are sophisticated corporations familiar with the type of [goods or] services rendered, and the consequences ... likely to result from a failure to perform the contract as promised." (Citations omitted; internal quotation marks omitted.) Id. "Thus, for the foregoing reasons, the economic loss doctrine prohibits recovery in tort for economic damages, where the basis for the tort claim is the breach of a construction contract, such as the contract in the present case." Id.
In the present matter, the plaintiff has alleged that an express contract was formed for installation and construction of a cedar roof on the plaintiff’s home. Additionally, the plaintiff has alleged negligence and seeks damages which are economic in nature. Therefore, based on the foregoing, the court holds that count two of the third amended complaint sounding in negligence is barred by the economic loss doctrine, and therefore, the motion to strike count two is granted.
II
Count Three: Breach of Express and/or Implied Warranty
Although Connecticut appellate courts have not yet addressed whether a breach of an express or implied warranty may be brought as an independent cause of action, Connecticut superior courts have addressed this issue. In Amica Mutual Ins. Co. v. Abar Development, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5032593-S (April 3, 2013, Wilson, J.) the court concluded that Connecticut courts have not recognized an independent cause of action for common-law breach of implied warranties outside the context of a breach of contract claim. In Perl v. Eagle’s Wing, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-08-5004560-S (May 11, 2011, Holzberg, J.) (51 Conn.L.Rptr. 625), the court granted the defendants motion for summary judgment to the plaintiff’s claim for breach of warranty, holdings that "Connecticut jurisprudence makes clear that breach of the implied warranty to perform services in a workmanlike manner is not an independent cause of action ..." "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[.] ... No authority has been found in which an implied warranty to perform the services in a workmanlike manner has been given status as an independent cause of action; rather, such a claim has been viewed as a breach of contract." (Internal quotation marks omitted.) Perl v. Eagle’s Wing, LLC, supra, 51 Conn.L.Rptr. 627; see New Hampshire Ins. v. Hartford Sprinkler, Superior Court, judicial district of Hartford, Docket No. CV-05-4007221-S (March 10, 2008, Wagner, J.T.R.) (45 Conn.L.Rptr. 177). The court noted, however, that the plaintiffs had adequately pleaded breach of this implied warranty in their first count sounding in breach of contract, and therefore, the claim remained in the case under count one. Perl v. Eagle’s Wing, LLC, supra, 51 Conn.L.Rptr. 627.
In the present matter, count three of the plaintiff’s amended complaint alleges that the defendant breached an express warranty to construct and install the roof on the plaintiff’s home in a workmanlike manner. Additionally, the plaintiff alleges that the defendant breached the implied warranty through the following: (1) the construction was not free from faulty materials; (2) the construction improvement was not done according to sound engineering standards; (3) the construction was not done in a workmanlike manner; and (4) the construction did not provide an implied warranty of habitability at its completion. Count three is essentially nothing more than a claim for the potential breaches directly related to the breach of contract claim. The plaintiff has failed to include these allegations in count one, but were used in count three in an attempt to create a separate cause of action. Putting these allegations in an additional count does not remove them from a simple breach of contract case.
Based on the foregoing, count three of the third amended complaint is not a separate cause of action, and therefore, the motion to strike count three is granted.
CONCLUSION
Based on the foregoing, the motion to strike counts two and three of the plaintiff’s third amended complaint is GRANTED.