Opinion
No. CV 06 5004561S
July 9, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This action arises from a bailment relationship between one of the plaintiffs, Murray Dinerstein, and the defendant, Transport Moving Storage, Inc.fn1 According to the plaintiffs' complaint, in March 1997, the defendant boxed and moved various items of the plaintiffs' personal property from their home in New York to the defendant's facility in Connecticut. When the storage items were retrieved in December 2005, the plaintiffs allege that a number of boxes were missing and some of their items were broken or damaged.
The plaintiffs' amended complaint alleges five counts. Count one alleges that the bailment contract was fraudulently induced by the defendant's misrepresentation that their property would be stored in a clear, secure storage facility. Count two states a claim under the Connecticut Unfair Trade Practices Act (CUTPA) based on the same allegations in count one. Count three alleges that the defendant, as a bailee, is liable for the damage to the plaintiffs' stored property. Count four alleges a breach of the bailment contract, and count five seeks a reimbursement of the deductible that the plaintiffs had to pay under their homeowners insurance policy.
The defendants move for summary judgment on counts one and two of the amended complaint on the ground that they are barred by the applicable statutes of limitations. The defendants also move for partial summary judgment as to damages, claiming that damages should be restricted in accordance with the limitation of liability clauses one or more of the bailment contracts.
LEGAL STANDARD
"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.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id., 318-19. "[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 800, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007).
COUNTS ONE AND TWO
The defendants claim that count one is barred by General Statutes § 52-577, and count two, which is CUTPA count premised on the allegations in count one, is barred by General Statutes § 42-110g(f). According to the defendants, these statutes establish a three-year limitation period, which begins when the alleged act or omission occurs, not when the plaintiff sustains or discovers the damage. The defendants claim that the plaintiffs served their lawsuit in 2006, and the acts and omissions alleged in the complaint occurred prior to March 1997. Given that the lawsuit was served nearly nine years after the alleged acts and omissions occurred, the defendants argue that they are entitled to summary judgment on counts one and two.
Section 52-577 states: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
Section 42-110g(f) states: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
The plaintiffs do not dispute that their lawsuit was served after the three-year limitation period but rely on the tolling doctrine of fraudulent concealment pursuant to General Statutes § 52-595. The plaintiffs claim a genuine issue of material fact exists as to whether the defendants fraudulently concealed the damage and loss of property.
In support of their position, the plaintiffs rely on a handwritten letter from the defendant prior to the storage as evidence of the defendant's representation that the property would be stored in a clean and safe facility. The plaintiffs also rely on the deposition testimony of Murray Dinerstein, in which he states that when the property was returned on December 22, 2005, he discovered the missing and damaged items. The plaintiffs also note that they allege in their complaint that their property would not have been lost or damaged if the defendant had stored as it represented.
The defendants counter that there is no genuine issue of material fact in dispute that the defendant did not fraudulently conceal the plaintiffs' action. The defendants cite the deposition transcript of Jeffrey Fairclough, president of the defendant, who testified that the plaintiffs' property remained in storage without being moved until the plaintiffs requested its return. He further testified that he did not recall any visits by the plaintiffs to the storage facility during that time.
The defendants also cite the deposition transcripts of the plaintiffs. Murray Dinerstein testified that the only conversations he had with the defendant during the time the property was in storage related to an increase in the storage cost and his ultimate request to have the property returned to him. The defendants also rely on Elaine Dinerstein's testimony that she had no communications with the defendant while the property was in storage. Given this evidence, the defendant claims that there is no evidence that the defendant knew of the condition of the property during the time of its storage or sought to conceal that condition from the plaintiffs. With no genuine issues of material fact in dispute to show any actual knowledge of the plaintiffs' cause of action or the defendant's intent to conceal it, the defendants conclude that the plaintiffs cannot survive summary judgment on the basis of fraudulent concealment. This court agrees with the defendant.
General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." "Under [Connecticut] law, to prove fraudulent concealment, the [plaintiff is] required to show that [the defendant]: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs' cause of action; (2) intentionally concealed these facts from the plaintiffs; and (3) concealed the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action." Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007).
In the context of fraudulent concealment, summary judgment on statute of limitations grounds is appropriate when "[t]here is no evidence that, during the three year period prescribed by §§ 52-577 . . . and 42-110g(f) . . . the defendants discovered evidence of [harm to the plaintiffs' property] and failed to disclose such evidence to them." Bartone v. Robert L. Day Co., 232 Conn. 527, 535, 656 A.2d 221 (1995); see also CT Page 11405 Bound Brook Ass'n. v. Norwalk, 198 Conn. 660, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986) (directing a verdict for the defendants in the absence of evidence showing that the defendants had actual knowledge of defects in their construction of the plaintiffs' homes).
The Connecticut Supreme Court's decision in Bartone v. Robert L. Day Co., supra, 232 Conn. 527, is controlling. The Bartone court held that evidence of a hidden defect in the plaintiffs' septic system is insufficient by itself to satisfy a claim of fraudulent concealment against the defendant who installed it. The court held that there must be some evidence of the defendant's actual awareness of the defect and an intent to conceal it from the plaintiff for the purpose of delaying a lawsuit: "The plaintiffs' argument on fraudulent concealment is principally predicated on the proposition that, because a septic system is buried in the course of construction, any defects arising out of its negligent construction or out of its failure to correspond with representations about its reliability are necessarily concealed by those who have any responsibility, direct or indirect, for its construction. If that argument were to prevail, it would toll, until the time of discovery, the statute of limitations with respect to any latent defects in a construction project." Id., 533-34.
Moreover, the court clarified that "[e]vidence of a misrepresentation does not itself establish that a defendant misrepresented those facts with the intent necessary to constitute fraudulent concealment. The actions of the defendant must be directed to the very point of obtaining the delay of which he afterward seeks to take advantage by pleading the statute." (Internal quotation marks omitted.) Id., 533 n. 5. In Bartone, the plaintiffs submitted evidence showing that during construction of their home, they discovered water in the foundation, which the defendant told them was not a problem. The court held that there was no evidence linking this misrepresentation to the septic system defects, and even if this linkage existed, the misrepresentation itself did not prove an intent to delay the plaintiffs' lawsuit. Id.
In the present case, the defendant has submitted evidence that it was unaware that the plaintiffs' property was damaged or missing and had no communications with the defendant about the condition of the property during its storage. The plaintiffs, in turn, have not submitted any evidence raising a genuine issue of material fact as to the existence of fraudulent concealment. At best, the plaintiffs have submitted evidence that the defendant represented that the storage area would be clean and safe and that the plaintiffs found the items damaged and missing when their property was returned to them. The plaintiffs also point to allegations in their complaint, but unadmitted allegations in a complaint are not proof of a genuine issue of material fact.
Based on the evidence submitted, the damaged and missing property were latent defects akin to the buried septic system in Bartone. As in Bartone, the plaintiffs have not submitted any evidence to raise a genuine issue of material fact that the defendant had actual knowledge of the damaged and missing items or concealed them for the purposes of delaying a lawsuit. Similarly, the evidence of the defendant's alleged misrepresentation of the condition of the storage facilities cannot by itself raise a genuine issue of material fact that the misrepresentation was intended to delay a lawsuit.
Given that there is no evidence to raise a genuine issue of material fact as to the existence of fraudulent concealment and given that counts one and two otherwise are barred by the statutes of limitation in § 52-577 and § 42-110g(f), the defendant's motion for summary judgment is granted as to counts one and two.
Alternatively, the defendant's motion for summary judgment for count two is granted because the Connecticut Supreme Court has definitively held that fraudulent concealment does not toll the statute of limitations in § 42-110g(f) for CUTPA claims. Fichera v. Mine Hill Corp., 207 Conn. 204, 215-17, 541 A.2d 472 (1988). The Fichera court reasoned that "[s]ince CUTPA violations are defined in General Statutes § 42-110b to include deceptive acts or practices in the conduct of any trade or commerce, it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g(f)." (Internal quotation marks omitted.) Id., 216.
DAMAGES
The defendant also moves for partial summary judgment on the issue of damages. The defendant claims that the plaintiffs' damages should be limited to sixty cents per pound of items stored as stipulated in the three contracts signed by Murray Dinerstein. The plaintiffs counter that genuine issues of material fact exist as to whether they were aware of the limitation of liability clauses, whether the plaintiffs intended to limit their liability to sixty cents per pound, and whether the plaintiffs assented to the limitation of liability clauses.
This court need not reach the merits of the defendant's claim because "[t]he Connecticut Practice Book, unlike the federal rules; see Fed.R.Civ.Proc. 56(d); does not provide for summary judgment on individual claims of damage." Smith v. Hauer, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 379046 (September 26, 2003, Levin, J.); see also Bridgeport Harbor Place v. Ganim, I, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 040184523 (October 5, 2007, Stevens, J.) (denying summary judgment on the issue of lost profits because it was only a single element of damages).
"[A] party is entitled, in two situations only, to seek summary judgment as to issues that will not dispose of the entire action or any count or claim on which relief is sought therein. The first such situation is that envisioned in Practice Book § 17-50, which expressly authorizes the trial court to enter `[a] summary judgment, interlocutory in character . . . on the issue of liability alone, although there is a genuine issue as to damages.' . . . So worded, this rule obviously does not authorize the trial court to enter a summary judgment, interlocutory in character, on any issue other than liability.
"The second such situation is that envisioned in Practice Book § 17-51, where `it appears that [al defense [asserted in a motion for summary judgment] applies to only part of [a challenged] claim, or that any part [of the claim] is admitted[.]' . . . So worded, Section 17-51 simply recognizes that some claims are really combinations of many claims, each of which, if pleaded separately, could afford the pleader a separate basis for relief. When such a combined claim is challenged by a motion for summary judgment, this rule merely permits the court to separate the claims from one another so that judgment can enter as to those as to which there is no genuine issue of material fact and only the remainder, which are still in dispute, can go to trial. The existence of this rule does not entitle a party to seek a binding judicial determination as to any issue in the case, such as a mere element of a challenged claim or a special defense, unless the result of his challenge to that element or special defense will be the entry of judgment as to a severable portion of the claim." (Citations omitted.) Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford, Docket No. CV 00 0822116 (Aug. 1, 2003, Sheldon, J.) (35 Conn. L. Rptr. 347).
Although a number of Superior Courts have adjudicated liquidated damage clauses on summary judgment, none of these decisions analyzes whether it is appropriate. Other decisions have adjudicated liquidated damage clauses on pre-trial motions under circumstances that were consistent with Connecticut procedural rules. See Hanover Insurance Co. v. American District Telegraph Co., Superior Court, judicial district of New Haven, Docket No. CV 88 0232346 (December 4, 1991, Stengel, J.) (5 Conn. L. Rptr. 324) (decided by a pretrial motion, not summary judgment); Convenient Petroleum Corp. v. Sonitrol Communications Corp., Superior Court, judicial district of Hartford, Docket No. 364888 (June 4, 1992, Wagner, J.) (6 Conn. L. Rptr. 556) (granting summary judgment on the entire claim, liability and damages).
See, e.g., Hartford Insurance Co. v. ADT Security Systems, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0357149 (April 22, 1999, Nadeau, J.) ("the court feels obliged to advise the parties of this in the spirit of judicial economy"); Messler v. Barnes Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 960560004 (February 1, 1999, Teller, J.); Hunters Consignment, Inc. v. Sonitrol of Western Connecticut, Ltd., Superior Court, judicial district of Danbury, Docket No. 308420 (November 15, 1994, Mihalakos, J.) (12 Conn. L. Rptr. 687).
Because summary judgment is unavailable for individual claims of damages, the defendant's motion for partial summary judgment as to damages is denied. The court need not reach the remaining issues raised by the parties.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted as to counts one and two and denied as to damages.