Opinion
No. CV 06 5004236 S
March 10, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The plaintiff commenced this action against the multiple defendants by way of a complaint dated July 25, 2006, bearing a return date of August 29, 2006. The plaintiff has filed a second amended complaint dated May 7, 2007. The named defendants are LandAmerica Financial Group, Inc., LandAmerica Environmental Insurance Service Agency, Inc., Lawyers Title Corporation, Lawyers Title Insurance Corporation, Lawyers Title Environmental Insurance Service Agency, Inc. ("Corporate defendants") and Sandra K. Patrick and Debra R. Moser ("Individual defendants"). All defendants are collectively referred to as "the defendants." The defendants have filed an answer and special defenses to the second amended complaint, said answer and special defenses are dated May 14, 2007.
The plaintiff's second amended complaint contains two counts alleging a breach of contract and a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110a et seq. The defendants, by way of their special defenses claim that the plaintiff's First Count alleging a breach of contract is actually a tort claim and is barred by the statute of limitations for a tort claim as set forth in General Statutes § 52-577. The defendants also claim that the plaintiff's CUTPA action is barred, as well, by the statute of limitations for CUTPA claims contained in General Statutes § 42-110g(f).
Sec. 52-577 reads as follows
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
Sec. 42-110g(f) reads as follows
(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
I Summary Judgment
The rules regarding the granting of summary judgment are well established. "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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts . . ." (Internal citations omitted; internal quotation marks omitted.) Provencher v. Town of Enfield, 284 Conn. 772, 790-91 (2007); Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).
"Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [The moving party] 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 . . . A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute . . . The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate." (Citations omitted.) Volleman's v. Wallingford, 103 Conn.App. 188, 192-93, 928 A.2d 586 (2007).
"The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Id. "Summary judgment may be granted where the claim is barred by the statute of limitations; Navin v. Essex Savings Bank, 82 Conn.App. 255, 258, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004); as long as there are no material facts concerning the statute of limitations in dispute. See Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984)." Haggerty v. Williams, 84 Conn.App. 675, 678-79, 855 A.2d 264 (2004).
II Summary of Claim
A summary of the dispute between the parties is appropriate. The plaintiff alleges in the First Count that in August 2000, the plaintiff retained and contracted with the defendants to broker and procure on its behalf a pollution legal liability insurance policy that would protect the plaintiff against risk and/or loss for environmental and/or pollution liability and clean-up or remediation costs that could arise in relation to the plaintiff's anticipated purchase and subsequent sale of real property located at 60 High meadow Road, Brookfield, Connecticut ("the site"). The plaintiff alleges that the individual defendants held themselves out as "experts" in the area of brokering and procuring this type of an insurance policy, and that the individual defendants were to provide "competent brokering and procurement services" to the plaintiff.
On or about August 23, 2000, the defendants brokered and procured said insurance coverage from the American International Specialty Lines Insurance Company ("AISLIC"). The effective date of the policy coverage was from August 1, 2000 through August 1, 2002. The plaintiffs purchased said insurance policy and the contained coverages upon the advice and representations of the defendants and paid the defendants a fee and/or commission for brokering services in consideration for the defendants having procured the policy on the plaintiff's behalf.
In August 2000, the plaintiff purchased the site. Thereafter, the plaintiff discovered that certain previously unknown solid waste disposal areas were buried on the site. On or about June 14, 2001, the plaintiff submitted a notice of claim to AISLIC "requesting coverage under the policy for clean-up or remediation costs related to the site" and has on numerous further dates continued to request coverage. AISLIC has denied and continues to deny the plaintiff's insurance coverage on the basis that the terms and provisions of the subject insurance policy that was brokered and procured by the defendants does not cover the plaintiff's claims.
American International Specialty Lines Insurance Company ("AISLIC") is not a named defendant in this action.
In June 2003, the plaintiff sold the site to the Iroquois Gas Transmission System ("Iroquois"). Iroquois, thereafter, made demand upon the plaintiff to clean up and remediate the site in accordance with applicable environmental laws, regulations, guidelines and directives. Commencing in December 2004, the plaintiff performed and/or implemented aspects of a certain Remedial Action Plan at the direction of and under the supervision of the Department of Environmental Protection at a cost to the plaintiff in an amount of $ 943,436.00. On or about February 21, 2006, the plaintiff submitted to AISLIC a formal claim for coverage in the amount of $ 943,436.00. That claim has been and continues to be denied by AISLIC.
The plaintiff claims that the defendants breached their contract with the plaintiff in that the insurance policy brokered and procured by the defendants did not adequately protect the plaintiff against the risks and losses for the environmental and pollution liability described herein and has resulted in the claim being denied by AISLIC.
The Second Count of the plaintiff's Second Amended Complaint alleging a violation of CUTPA alleges the same claims as in Count One and further alleges that: (1) the individual defendants misrepresented the insurance coverage to the plaintiffs; and (2) the individual defendants intentionally conspired with the corporate defendants to deprive the plaintiff of the benefits of the policy, which all defendants knew provided coverage for the very losses claimed by the plaintiff. The plaintiff also alleges that the defendants intentionally acted to defraud the plaintiff for their own gain by depriving the plaintiff of the benefits due under said policy. These acts are alleged to be unfair, deceptive and unscrupulous and have resulted in the plaintiff suffering an ascertainable loss in excess of $ 1,000,000.
III Discussion A. Breach of Contract
As noted earlier herein, the defendants have filed two special defenses. The defendants claim that the First Count is barred by reason of the limitation on actions set forth in § 52-577, and the Second Count alleging a CUTPA violation is similarly barred because of the provisions of § 42-110g(f). In moving for summary judgment, the defendants argue that the plaintiff's First Count, though it sounds in contract, actually alleges a tort claim and is barred by § 52-577, which is a three-year statute of limitations from the date of the action or omission complained of. See General Statute § 52-577.
The defendant states that the "[s]ubstantive allegations of the first count . . . are cloaked in contract language so as to get around the statute of limitations issue, but they are actually allegations of negligence and professional malpractice," and that "[i]n essence the Plaintiff has brought a claim against Defendants for failure to procure an insurance policy to cover its loss." The defendants argue that the only contract the plaintiff relies upon to make its claim is the policy of insurance and that the plaintiff has not alleged in its complaint or in its responses to Interrogatories that any other contract exists. However, the court clearly understands that the First Count of the plaintiff's complaint is referring to an alleged oral contract between the plaintiff and the defendants to procure and broker the subject insurance policy.
The plaintiff, in opposing summary judgment argues that it has alleged an offer, acceptance, consideration and a breach and that thus, it has adequately alleged a claim for a breach of contract and that the subject action has a six-year applicable statute of limitations pursuant to General Statutes § 52-576, which states in relevant part:
The plaintiff has not alleged that a written contract existed between the parties regarding the brokering or procuring of the insurance policy. Therefore, the court proceeds on the belief that the breach of contract claim is based on an executed oral contract. Section 52-581, the three-year statute of limitations, applies only to executory contracts. Bagnoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950 (2007). "A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations . . . It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies . . . The determinative question is whether the contract was executed." (Citations omitted; internal quotation marks omitted.) Id.; see also, John H. Kolb Sons, Inc. v. G L Excavating, 76 Conn.App. 599, 610, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). General Statutes § 52-576, the six-year statute of limitations is applicable to executed oral contracts. Id.
(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . .
The plaintiff also claims that the six-year statute of limitations continued to be tolled because for five years following the 2001 disclaimer of coverage, the insurer has repeatedly denied the continual demands for coverage by the plaintiff. The plaintiff argues that this is a continuing course of conduct and that with each continuing submission by the plaintiff, the insurer continued its conduct of disclaiming coverage. "When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174, 127 A.2d 814 (1957). The plaintiff therefore concludes that on each date of each subsequent disclaimer by the insurer, a cause of action accrued against the defendants for their failure to procure the policy of insurance that they contracted to procure with the plaintiff.
The insurer AISLIC initially denied the plaintiff's claim on August 30, 2001.
In determining whether the plaintiff's claim in the First Count alleging a breach of contract, is, in fact, a tort claim, it is appropriate "to look beyond the language used in the complaint to determine what the plaintiff really seeks." Gazo v. Stamford, 255 Conn. 245, 262-63, 765 A.2d 505 (2001) "[P]utting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." Id. at 263. "[T]he law should not permit him to recast what is essentially a tort claim as a contract claim solely to gain the potential advantage of a longer statute of limitations." Id. at 267.
Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants. Neuhaus v. DeCholnoky, 280 Conn. 190, 206-07, 905 A.2d 1135 (2006); Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004). "The purpose of [a] statute of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007).
The question, then, is whether the allegations in the First Count of the plaintiff's Second Amended Complaint sound in contract or tort. If a contract claim was set forth, then the six-year statute of limitations applied. If a tort claim was set forth, then it was time barred by the three-year statute of limitations. Connecticut Edu. Assoc. v. Milliman, 105 Conn.App. 446, 458 (2008).
The question of whether the complaint sounds in breach of contract or a tort has arisen more frequently in the context of legal malpractice cases. See Caffery v. Stillman, 79 Conn.App. 192 (2003); Alexandru v. Strong, 81 Conn.App. 68 (2004). A plaintiff may bring against an attorney an action sounding in both negligence and contract. See Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). To determine whether a breach of contract claim is in reality a tort claim couched in the language of promise and breach, Caffery v. Stillman, supra, 79 Conn.App. 197, the court must analyze the language in the First Count of the plaintiff's Second Amended Complaint. "The interpretation of pleadings is always a question of law for the court. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) . . ." (Citations omitted.) Jacques All Trades Corp. v. Brown, 33 Conn.App. 294, 302, 635 A.2d 839 (1993).
The court agrees with the defendants that the plaintiff's second amended complaint presents a mixed bag of language that could apply to both contract and tort. It becomes especially confusing when the plaintiff's memorandum of law argues the application of the continuing course of conduct doctrine which is applicable to tort actions to prevent the running of the statute of limitations.
General Statutes § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . .
(Internal quotation marks omitted; emphasis added.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139-40, 907 A.2d 1220 (2006).
"In sum, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ." (Citations omitted; internal quotation marks omitted.)
(Emphasis added.) Id.; see also, Grey v. Stamford Health System, Inc., 282 Conn. 745; 924 A.2d 831 (2007) (Stating that "[i]n the medical malpractice context, the continuing course of conduct doctrine requires the plaintiff to prove that "the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty.").
A claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach. Connecticut Edu. Assoc. v. Milliman, supra, 105 Conn.App. 457-58. "A true contract claim is one in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result." Id. at 458. "A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result." Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999).
Despite certain infirmities as to the language used in the First Count, the plaintiff has sufficiently alleged that he contracted for a policy of insurance to cover against the specific risk and losses for environmental pollution liability and clean-up and remediation such as the types that arose at the site at 60 High meadow Road, Brookfield, Connecticut. Connecticut Edu. Assoc. v. Milliman, supra, 105 Conn.App. 457-58. Embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach Alexandru v. Strong, supra, 105 Conn.App. 79. Even if one argues that the language, in fact, does not specifically claim the plaintiff contracted for a specific result, the plaintiff has disclosed his claim of a breach of a contractual duty owed to him by the defendants. See Rosato v. Mascardo, 82 Conn.App. 396, 411-12, 844 A.2d 893 (2004). It is also noted, that the language of plaintiff's First Count does not refer to negligence or a breach of duty by the defendants.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." Id. at 400. With this principle in mind, the court determines there are genuine issues of material fact regarding the First Count as one sounding in breach of contract. Should the trier of fact find a contract existed between the parties it would subject to a six-year statute of limitations, as provided in General Statutes § 52-576. Accordingly, the motion for summary judgment is denied as to the First Count of the plaintiff's Second Amended Complaint.
B.
CUTPA
The defendants claim that the Second Count of the operable complaint alleging a violation of CUTPA is barred by the three-year statute of limitations contained in General Statutes § 42-110g(f). The court agrees.
[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . .
(Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, supra, 98 Conn.App. 140; see also Eastham v. Garden State Life Ins. Co., Superior Court, Judicial District of New Haven at New Haven No. CV 054011444 (June 7, 2007, Jones, J.)
[A] precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . (Internal quotation marks omitted.).
Id.
The Appellate Court has stated in reference to an alleged violation of CUTPA, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) (Emphasis added.) Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 608, 894 A.2d 335, cert. granted in part, 280 Conn. 901, 907 A.2d 88 (2006); Devolve v. Marcoux, Superior Court, judicial district of Windham at Willimantic, No. CV06 5000221 (Oct. 9, 2007, Martin, J.)
The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . [T]he doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . .
(Emphasis added.) Rosenfeld v. Rogin, Nassau, Caplan, Lassman H., 69 Conn.App. 151, 160-61, 159, 795 A.2d 572 (2002).
The plaintiff argued that its action in the First Count was one that alleged a breach of contract by these defendants and not a tort. Nonetheless, the plaintiff now argues that the continuing course of conduct by the insurer AISLIC in repeatedly denying the plaintiff's claim should apply to the Second Count alleging a violation of CUTPA by the defendants, thereby extending the three-year statute of limitations in § 42-110g(f).
The Second Count states that the individual defendants "intentionally misrepresented the insurance coverage that it brokered and procured from the corporate defendants, which the corporate defendants . . . knew, or in the exercise of due diligence should have known, the coverage the plaintiff intended to purchase," or that "the individual defendants conspired with the corporate defendants to deprive the plaintiff of the benefits of the policy of insurance . . ." The plaintiff has not alleged that these defendants have worked in concert with the insurer AISLIC in a continuing course of conduct to repeatedly deny the plaintiff's claim. A fair review of the allegations contained in the Second Count yields a result that the gravamen of the plaintiff's claim against these defendants is that they did not procure the policy coverage the plaintiff desired in August 2000, and that the plaintiff became aware of it when AISLIC initially denied the plaintiff's claim on August 30, 2001. While it may not be definitively clear from the allegations in the plaintiff's complaint exactly when the plaintiff claims alleged violation of CUTPA occurred, it is clear to this court that the statute of limitations began to run, at the very least, from the August 30, 2001 denial of the plaintiff's claim on August 30, 2001. As the plaintiff's action was instituted by way of a complaint dated July 25, 2006, bearing a return date of August 29, 2006, it is beyond the three-year limitation of action provided in General Statutes § 42-110g(f). Accordingly, the motion for summary judgment is granted as to the Second Count of the plaintiff's Second Amended Complaint.