Opinion
No. CV00 0178768 S
January 29, 2004
MEMORANDUM OF DECISION
FACTS
The Plaintiffs, Ervin Braun and Susan Braun, bring this action against the Defendants Ronald J. Kelly, P.E., Paul Bierman-Lytle, and The Masters Corporation, in three counts.
The Plaintiffs are the owners of property located at 16 Dairy Road, Greenwich.
In January 1992, the Plaintiffs entered into an agreement with The Masters Corporation, acting through its President, Paul Bierman-Lytle (Exhibit 1), for architectural and design services.
The agreement followed consultations and discussions between the Plaintiffs, members of their family, and Bierman-Lytle.
Both the Masters Corporation and Bierman-Lytle had previously worked for the Plaintiffs concerning the relocation of a home on Stoney-Wilde Lane, to 16 Dairy Road, an adjoining property.
Bierman-Lytle supervised the moving and relocation of the house, to the other side of the Plaintiffs' property.
Prior to entering into the agreement in January 2002, the Plaintiffs discussed various designs with Bierman-Lytle, and were furnished with a brochure and promotional materials concerning The Masters Corporation (Exhibit 24).
While Bierman-Lytle is a trained architect, he was not licensed to practice architecture in the State of Connecticut.
Bierman-Lytle and his wife each owned 50 percent of the stock of The Masters Corporation.
In late 1992, after preparing a preliminary design for the home, Bierman-Lytle met with the Defendant Ronald J. Kelly, a structural engineer.
An agreement between Kelly and The Masters Corporation called for Kelly to provide framing sizes and details for the project (Exhibit B).
Kelly completed the signed structural drawings (Exhibit F), which were filed with the Building Department of the Town of Greenwich on March 8, 1993.
Construction of the home began in the spring of 1993, at which time a construction managers agreement between the Plaintiffs and The Masters Corporation was signed. The Masters Corporation acted through its President, Paul Bierman-Lytle.
Promotional materials for The Masters Corporation advertised Bierman-Lytle as a Master Builder.
The Masters Corporation assisted in engaging contractors for the project, selecting appropriate materials, and other functions pursuant to the agreement (Exhibit 2).
In August 1993, Ervin and Susan Braun determined to reduce both the size and cost of the project.
The Plaintiffs decided to assume the role of general contractor for the project, while The Masters Corporation functioned as the construction manager.
At the same time, and prior to the submission of revised plans (Exhibit G) to the Greenwich Building Department, Kelly revised his calculations, in light of a change in the flooring contemplated for the kitchen area.
The change to a "mud job" in the kitchen altered the "deflection criteria" used by Kelly to a figure of L/480.
"Deflection criteria" is a ratio of length (L) divided by a selected number. The "deflection criteria" must be sufficient to accommodate materials used as floor covering.
The higher the "deflection criteria," the less the deflection that will occur, and the stiffer the structure.
Revised plans were submitted to the Greenwich Building Department, and the house was constructed in accordance with those plans.
According to the Plaintiffs, Ervin and Susan Braun, they were told that the structural design would be sufficient to accommodate a radiant heating system in portions of the home.
During the construction phase, The Masters Corporation assisted in engaging contractors for the project, and selecting appropriate materials, pursuant to the agreement.
In May of 1994, the Plaintiff Ervin Braun sent letters to both Kelly and The Masters Corporation, regarding his observation of "sagging" beams (Exhibits 22 23).
Ervin Braun requested a meeting with the architect and the structural engineer to review the structural integrity of the house.
The meeting was held on May 12, 1994, at the Dairy Road site.
Following a review and examination of the home, Kelly explained that there were no significant structural problems present.
Kelly determined that the cause of the sagging was the failure of the contractor, to install blocking under certain posts.
According to Kelly, the floors were covered with plywood at the time of the visit.
While it is clear that radiant heat had not yet been installed at the time of the May 1994 visit, plans and specifications calling for a radiant heating system beneath the floors were available for review.
According to Bierman-Lytle, Kelly informed him that the structural engineering was sufficient to accommodate the floor materials.
Kelly was paid $290.00 following his May 12, 1994 visit, and did not return to the house again.
Many and varied types of floor materials were utilized in the construction of the home.
Marble, granite and limestone were utilized in areas of the main floor and the master bedroom.
Limestone was installed in the foyer and the galley (over radiant heat), as well as the hallway to the kitchen, the dinning area, kitchen and rear hallway.
The study floor is granite (over radiant heat) and the hallway from the master bedroom to the master bath is marble.
The housekeepers bath on the first floor is ceramic tile.
Subsequent to the completion of all construction in May of 1995, the Plaintiffs claim that severe cracking occurred on various floor substances. These could not be remedied by the contractor, Rama Contractors.
This action was commenced against The Masters Corporation, Paul Bierman-Lytle, and Ronald J. Kelly.
Trial was conducted on September 10, 11, 12 and 16, 2003, and the parties submitted proposed findings of fact and conclusions of law on October 10, 2003.
PLAINTIFFS' CLAIMS
The Plaintiffs' complaint, dated June 6, 2000, is pled in three counts.
Count one alleges breach of contract against The Masters Corporation and Paul Biermen-Lytle, while Count three claims that those defendants were negligent.
The breach of contract claims alleged against the Defendant Bierman-Lytle in Count one were dismissed at trial, following a finding that the evidence presented was insufficient to support piercing the corporate veil. KLM Industries, Inc. v. Tylutki, 75 Conn. App. 27, 34-35 (2003); Hersey v. Lonrho, Inc., 73 Conn. App. 78, 87 (2002).
Count two is a negligence claim, directed to the Defendant Ronald J. Kelly.
In their Answer, dated March 25, 2002, the Defendants The Masters Corporation and Bierman-Lytle claim that the Plaintiffs' cause of action is barred by the applicable statute of limitation.
They also claim, by way of special defense, that the Plaintiffs' own negligence bars recovery, that the Plaintiffs failed to prove a deviation by either Defendant from the applicable standard of care, and that any negligence was not the proximate cause of the Plaintiffs' damages.
The Defendant Ronald J. Kelly, P.E. alleges, by way of special defense, that the cracks resulted from the negligence of the Plaintiffs, and the negligence of other parties, named for purposes of apportionment.
Apportionment Defendants include Rama Contractors Corp., Tucker Mechanical, LLC, and Vincent Repaci, d/b/a/ Advanced Air Conditioning Heating.
APPLICABLE STATUTES OF LIMITATIONS DOES NOT BAR CLAIMS OF NEGLIGENCE OR BREACH OF CONTRACT
The Masters Corporation and Paul Bierman-Lytle claim that the Plaintiffs' action is not timely, and violates the Statute of Limitations.
This claim is not well taken.
Section 52-584a of the General Statutes reads:
(a) No actions . . . whether in contract or tort . . . (1) to recover damages (A) for any deficiency in the design planning, contract administration, supervising, observation of construction or construction of any improvement to real property; (B) for injury to property, real or personal, arising out of such deficiency shall be brought against any architect or professional engineer . . . more than seven years after substantial completion of such improvement . . .
The Defendants argue that Bierman-Lytle was not a licensed architect, and therefore is not covered by the provisions of § 52-584a, CGS.
This contention ignores the provisions of § 20-290 of the General Statutes, which exempts from the licensing requirements the furnishing of architectural services for "the construction, or alteration of a residential building, to provide dwelling space . . ."
Based upon that exemption, the provisions of § 52-584a, CGS apply to The Masters Corporation and Paul Bierman-Lytle.
This action, in which the writ, summons and complaint were served on June 21, 2000, is timely brought by the Plaintiffs.
PLAINTIFFS FAILED TO PROVE NEGLIGENCE BY EITHER KELLY OR BIERMAN-LYTLE
At trial, both the Plaintiffs and the Defendants presented expert testimony on the issues of negligence, and causation.
Dr. Kareem Adeeb, a professional engineer, testified on behalf of the Plaintiffs.
The Defenant Ronald J. Kelly countered with the testimony of Carl Cianci, a professional engineer, while Dr. Brian Skinner, a Professor of Geology, and Donald Baerman, an architect, were called by the Defendants The Masters Corporation and Bierman-Lytle.
The Defendants Ronald J. Kelly and Paul Bierman-Lytle also testified.
In addition to the courtroom testimony, a view of the premises at 16 Dairy Road was conducted.
The view revealed extensive cracking of the flooring materials, in numerous areas of the house.
Cracks were not confined to a particular flooring material, but were visible in limestone, granite, marble and ceramic tile.
Cracking was noticeable in the foyer, kitchen area, hallway behind the kitchen, the housekeepers bath on the first floor, as well as the landing in the garage, and the family room hearth.
The master bedroom suite and the hallway displayed cracking, as did the study and the hallway leading to the study.
The Plaintiffs claim that the cause of this cracking was excessive deflection.
Through Dr. Adeeb, they claimed that Kelly should have applied an L/720 or L/600 factor, in order to avoid deflection.
They claim that had the proper deflection criteria been used, a stiffer floor structure would have resulted, and cracking would have been avoided.
They further claim that The Masters Corporation and Bierman-Lytle failed to properly manage the construction of the project, and failed to provide proper structural engineering services, or furnish adequate information to the structural engineer.
Kelly claimed he was not informed that radiant heat would be used in a portion of the house. Bierman-Lytle says he did inform Kelly.
According to Dr. Adeeb, Kelly breached the applicable standard of care, by failing to do a full structural analysis of the integrity of the building, when the sagging was brought to his attention in May of 1994.
Cianci disputed the contention that the cracking was caused by excessive deflection.
He revealed that the standards cited by Adeeb concerning proper deflection involved exterior pavers, not interior stones.
He further found, after testing and investigation, that in most of the areas where the cracks appeared in the flooring material, the deflection criteria exceeded that recommended by Dr. Adeeb (Exhibit W).
While Kelly admitted that radiant heat would require a stiffer structure, the court believes Kelly would have redesigned the other floors, if necessary, at the same time he adjusted for the kitchen "mud job" had he been informed of the need.
It is therefore found, that Kelly did not breach the standard of care, because he did not know of the need for the changes, and the deflection criteria he utilized conformed to the standards at the time.
Kelly's use of deflection factors L/360 and L/480, did not breach the standard of care for structural engineers, at the tine the services were provided.
However, even if it could be found that either Kelly or Bierman-Lytle was negligent, the court finds, based upon the evidence presented, that any negligence was not a substantial factor in producing the offending cracks.
Dr. Skinner found that the limestone used was of poor quality.
Furthermore, some of the cracks appeared in areas of the house where radiant heat had been installed, while others appeared in flooring which was not placed over radiant heat.
The later areas included the family room hearth, and the steps in the garage.
Support for Cianci's opinions were also found in the measurements of Donald Baerman, an architect.
In measuring the floors to determine the degree of deflection, Baerman used a 48 inch level. He determined that there was no deflection present.
Baerman believes that the most likely cause of the cracking involves the nature of the bed on which the stones were placed.
Consistent with his findings, some of the cracks do appear over the areas where radiant heat was installed, with a concrete base.
It is found that neither Bierman-Lytle or Kelly was negligent, in one or more of the ways specified in the complaint.
Even if one or both of the defendants were found negligent, any negligence was not a substantial factor in causing the cracks in the flooring of the Plaintiffs' home.
Furthermore, because negligence has not been proven, the breach of contract count, Count one, against The Masters Corporation, must also fail.
DAMAGES NOT PROVEN
It is not necessary to address the issue of damages, given the finding that none of the defendants was negligent, and that excessive deflection was not a substantial factor in causing the cracks in the flooring material at 16 Dairy Road, Greenwich.
However, it should be noted, that other than an estimate for replacing some stones (Exhibit 18), the only claim for damages involved the testimony of Ervin Braun, that the cracks had devalued his home by $500,000.00.
While the owner of real property may testify as to the diminution in value of his property, and the cause of the diminution; Pesty v. Cushman, 259 Conn. 345, 364 (2002), the court gives little weight to such testimony in this case.
No fair market value appraisal of the property, or expert testimony was offered.
There was no testimony concerning the cost of repairs to the home, on which a finding of economic damages could be based.
The Defendants are under no obligation to disprove any element of damage, and the evidence fails to substantiate any recovery for the Plaintiffs, even if they had prevailed on their claims of negligence and/or breach of contract.
Judgment may enter in favor of all Defendants, with costs.
RADCLIFFE, JUDGE.