Opinion
No. AAN-CV07-5002729S
December 7, 2009
MEMORANDUM OF DECISION
FACTS
The operative complaint in this action is the revised complaint filed by the plaintiff, Andrzej Antos, on July 11, 2007. The revised complaint contains five counts, of which only counts two and five are relevant to this motion. In count two, the plaintiff alleges negligence against the defendant Connecticut Property Management, Inc. (CPM); in count five, he alleges a claim against CPM under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In the remaining counts, the plaintiff alleges various causes of action against the defendants Graham Foster and Jennifer Foster.
Specifically, in count one, the plaintiff alleges negligence against Graham Foster. In count three, the plaintiff alleges a premises liability claim against Graham Foster and Jennifer Foster. Finally, in count four, the plaintiff alleges a claim under CUTPA against Graham Foster.
The facts relevant to counts two and five, as the plaintiff alleges in the revised complaint, are as follows: CPM, a corporation registered in Connecticut, was the general contractor for a construction project (project), namely, the construction of an addition to a residential home located at 36 Crooked Mile Road in Darien, Connecticut (the property). CPM "owned, operated, possessed, controlled, managed and/or maintained" the construction site. Sometime prior to February 7, 2006, CPM hired Jaroslaw Korwek, doing business as Jerry's Home Improvement, as a subcontractor to perform certain construction services on the property.
Korwek, who is also referred to in the pleadings as "Jerry Korwek," is an apportionment defendant in this case. The Foster defendants brought an apportionment complaint against Korwek; the plaintiff has brought no direct claim against Korwek.
The plaintiff further alleges that on October 6, 2005 CPM's treasurer, Graham Foster, confirmed that CPM would require proof of workers' compensation insurance from any subcontractors it hired. In violation of General Statutes § 31-286b, CPM did not require proof that Jerry's Home Improvement had workers' compensation insurance before hiring it. According to the revised complaint, Jerry's Home Improvement in fact did not have workers' compensation insurance.
The Second Injury Fund appeared in this case as an intervening plaintiff on August 1, 2007. It alleges in its complaint that, because Jerry's Home Improvement lacked workers' compensation insurance, it was required to make compensatory payments to the plaintiff pursuant to General Statutes § 31-355. It further alleges that it is entitled to be compensated for those payments from any judgment recovered by the plaintiff.
Finally, the plaintiff alleges that while working on the project as an employee of Jerry's Home Improvement on February 7, 2006, he suffered severe injuries when he fell approximately fifteen feet when a ladder slipped out from under him. The plaintiff claims that his injuries occurred due to various negligent acts and omissions of the agents and employees of CPM, and that the actions of CPM's agents and employees also constituted unfair or deceptive trade practices and therefore violated CUTPA. The plaintiff seeks money damages, punitive damages under CUTPA and attorneys fees under CUTPA.
CPM filed the present motion for summary judgment on May 4, 2009. CPM also submitted a memorandum of law in support of the motion along with responses to requests for admissions by Graham Foster and Jennifer Foster, and an excerpt of Graham Foster's deposition testimony. The plaintiff filed his memorandum of law in opposition on September 4, 2009, with various exhibits, including an excerpt of Graham Foster's deposition. The court heard the motion at short calendar on September 8, 2009.
DISCUSSION
"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact [however] the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
CPM moves for summary judgment as to the second and fifth counts in negligence and CUTPA respectively on the ground that it "owed no duty to the plaintiff because it did not own, possess, or control the premises where the plaintiff was allegedly injured." In its memorandum of law, CPM asserts that because it did not act as the general contractor of the project, had nothing to do with the home renovation project, and did not own the property at 36 Crooked Mile Road, it had no duty to the plaintiff and is, therefore, not liable for negligence or under CUTPA. In response, the plaintiff counters that there exist genuine issues of material fact as to whether CPM operated, possessed, controlled, managed or maintained the property, notwithstanding its lack of ownership. The plaintiff further argues that he has submitted evidence that Graham Foster was acting on behalf of CPM when he undertook the project. Lastly, the plaintiff contends that Graham Foster kept a subfile for documents related to the project and that these documents relate either to CPM directly or Graham Foster acting on behalf of CPM. It is not disputed by CPM that Graham Foster undertook the project.
The crux of the parties' dispute over the involvement of CPM in the project is essentially whether Graham Foster was acting as an agent of CPM when he committed the alleged wrongful acts that resulted in the plaintiff's injuries. "It is well settled that a corporation can act only through its agents . . . Furthermore, it is a general rule of agency law that the [principal] in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent's employment." (Citation omitted; internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 572-73, 845 A.2d 417 (2004). Therefore, because it is a corporation, CPM can only be liable here if the persons who committed the alleged wrongful acts were acting as CPM's agents.
Attached to the plaintiff's memorandum of law as Exhibit A is a copy of an excerpt of Graham Foster's deposition, in which he admitted he "has some sort of management role" with CPM and that, specifically, he is the treasurer and a director of CPM. Furthermore, Exhibit B of CPM's memorandum of law is a copy of another excerpt from the same deposition in which Graham Foster admits that his current employment is with CPM as a "manager."
No evidence, however, was submitted to show that Jennifer Foster or any other person involved with the project had an agency relationship with CPM. Thus, in order to prevail on its motion for summary judgment on the ground that it was not associated with the project, CPM must demonstrate that Graham Foster either lacked authority to undertake the project on behalf of CPM or was not acting within the scope of his employment with CPM.
In support of its motion for summary judgment, CPM provides copies of two requests for admissions in which Graham Foster and Jennifer Foster admit that they personally and jointly owned the property and that CPM had no ownership interest in the property. CPM also provides an excerpt of Graham Foster's deposition transcript in which he testified that he was the "manager" of CPM and that CPM was a "[p]roperty and management company" that managed single-family homes and one commercial property. In his deposition, Graham Foster also testified that CPM had never acted as a general contractor for construction projects, that CPM did not enter into a contract with Jerry's Home Improvement, and that it was not otherwise involved in the project. Graham Foster further attested that he and Jennifer Foster hired Jerry's Home Improvement and paid them from a personal account.
CPM's evidence is insufficient to warrant summary judgment. First, it has not provided evidence that would establish the absence of a genuine issue of material fact as to whether Graham Foster had authority from CPM to undertake the project. "An agent's authority may be actual or apparent . . . Actual authority exists when [an agent's] action [is] expressly authorized by resolution of the board of directors . . . [is] impliedly authorized by the board of directors . . . or . . . although not authorized, [is] subsequently ratified by the board of directors." (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., supra, 81 Conn.App. 573. "Apparent authority is that semblance of authority [that] a principal through his own acts . . . causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 850-51, 817 A.2d 683 (2003).
The bulk of CPM's evidence is made up of categorical assertions by Graham Foster, namely, that CPM had never acted as a general contractor, had never entered into a contract with Jerry's Home Improvement, did not own the property, and was not involved in the project. These conclusory assertions are insufficient to establish the absence of a genuine issue of material fact. The remaining relevant evidence indicates that Graham Foster, along with Jennifer Foster, owned the property, hired Jerry's Home Improvement and paid it from a personal account, and does not indicate that CPM did not approve or ratify Graham Foster's activities or hold Graham Foster out as having authority to undertake the project, nor does it indicate that the plaintiffs could reasonably believe Graham Foster had such authority.
Second, there remains a genuine issue of material fact as to whether Graham Foster was acting within the scope of his employment with CPM. An agent acts within the scope of his or her employment when he or she is "engaged in the service of the [principal]." Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968). "[I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered . . ." Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968). There are no further details provided as to the nature of CPM's property management business besides Graham Foster's deposition testimony that CPM manages twenty-five residential homes and one commercial property in Fairfield County, Connecticut, nor are there further details of Graham Foster's role with CPM. There is no evidence describing CPM's business activities that would suggest that the project does not further CPM's interests. In short, there is nothing to compel a reasonable fact finder to conclude that Graham Foster was not serving or advancing the interests of CPM in undertaking the project.
Moreover, although the plaintiff made no objection, it should be noted that the admissions of Graham Foster and Jennifer Foster found in the requests for admissions attached by CPM technically cannot be considered in support of the motion for summary judgment against the plaintiff. See Sagamore Ins. v. Deming, Superior Court, judicial district of New Haven, Docket No. CV07 5011800 (August 6, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 137). "A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment. See Practice Book § 13-24 . . ." (Citation omitted.) East Haven Builders Supply Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). Such judicial admissions are, however, binding only on the party making them and not on other parties. See Sagamore Ins. v. Deming, supra, 46 Conn. L. Rptr. 137 (citing Palombizio v. Murphy, 146 Conn. 352, 150 A.2d 825 (1959)). Regardless, even if such evidence were considered, it would not have affected the court's conclusion.
CONCLUSION
The evidence provided by CPM does not show the absence of a genuine issue of material fact as to either count two or count five. It is an issue of fact as to whether Graham Foster had authority from CPM to undertake the project and whether he was acting within the scope of his employment with CPM. Therefore, the motion for summary judgment is denied as to both counts.
CT Page 718