Opinion
No. CV 04-0831259-S
March 17, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ( #127)
In this action, the Plaintiff, Electrical Contractors, Inc., brings a complaint against the Defendant, the City of Hartford, in two counts alleging breach of contract and breach of the covenant of good faith and fair dealing. The action stems from a contract between the parties involving the upgrade of the City's traffic signals system. The City has moved for summary judgment as to one paragraph of the First Count as well as to that Count in its entirety.
The standards for granting summary judgment are well settled. "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 a party would be entitled to a directed verdict on the same facts." (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006).
The City argues that it is entitled to summary judgment as to the claim alleged in Paragraph 10 of the First Count of the Second Amended Complaint. That Paragraph states: "Moreover, the City breached its express and implied contractual obligations by failing to properly consider and review ECI's proposed subcontractor for Item 800 of the contract specifications, the `Advanced Traffic Management System.' Despite the fact that there were no proprietary requirement or sole source restrictions in the contract as to the subcontractor/vendor for this item, the City consistently refused to properly consider ECI's submissions from the subcontractor/vendor ECI intended to use for the Project, Naztec, Inc. Notwithstanding the fact that Naztec, Inc. was properly qualified and proposed to provide the specified system, or an acceptable, closely `equal' system, the City refused to duly consider Naztec in this regard and rejected it out of hand. Instead, the City wrongfully insisted that ECI utilize DMJM Co. of Colorado Springs, CO, and effectively imposed a `sole source' procurment requirement upon ECI."
The City argues that summary judgment should be rendered on this claim because there was no obligation on the part of the City, pursuant to the contract, to consider and review ECI's proposed subcontractor for Item 800. Therefore the City claims that summary judgment should be granted as to the Plaintiff's breach of contract claim as it is premised on the claim in Paragraph 10.
In opposition to the motion, the Plaintiff first argues that Connecticut law does not permit a party to obtain summary judgment on part of a count of a complaint. The Plaintiff cites Telesco v. Telesco, 187 Conn. 715 (1982). There the Supreme Court held that it was error for the trial court to grant summary judgment where its decision did not address all of the issues raised in the count on which summary judgment was granted. Thus in Schofield v. RIC Corporation, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV86 02 12 44S (Jan. 31, 1991), Judge Fuller held: "A summary judgment may be granted under section 384 of the Connecticut Practice Book if the pleadings, affidavits and other proof submitted with the motion 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. Connolly v. Housing Authority, 213 Conn. 354, 364; Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11. The summary judgment rules apply to counterclaims and cross complaints as well as a plaintiff's complaint, and any party can move for summary judgment upon a counterclaim or cross complaint as if it were an independent action. Section 379, Connecticut Practice Book. A plaintiff can also obtain an interlocutory summary judgment on the issue of liability alone where there is no genuine issue of material fact as to liability even though there is a genuine issue as to damages. Section 385, Connecticut Practice Book; Stroiney v. Crescent Lake Tax District, CT Page 5201 197 Conn. 82, 84; Rubin v. Rios, 186 Conn. 754, 755; New Haven Redevelopmnent Agency v. Research Associates, Inc., 153 Conn. 118, 120. These provisions follow the Federal Rules of Civil Procedure. Id. In addition, section 386 of the Practice Book provides for judgment on part of a claim in two situations: (1) where part of a claim is admitted; or (2) a defense applies to only part of a claim (allowing judgment for the portion of the claim that the defense does not apply to). Section 386 allows summary judgment to be granted for a plaintiff on some of the counts of a complaint even though there may be a defense to other counts. Section 386 has also been applied to allow summary judgment against one of two defendants on the same claim where the plaintiff's claim against the two defendants is severable. Maislin v. Lawton, 30 Conn.Sup. 593, 595. The defendants have not located any Connecticut decision, however, that allows summary judgment for a defendant against the plaintiff on some but not all of the allegations of a single count of a complaint. Their reliance on Hamill v. Smith, 25 Conn.Sup. 183, is misplaced. In that case an interlocutory summary judgment on the issue of liability was granted to a plaintiff on the issue of liability, which was severable from the issue of damages. That procedure is specifically allowed by section 385 of the Practice Book, and the plaintiff had shown there was no genuine issue of material fact on one of several specifications of negligence in the complaint, and that the negligence was the proximate cause of the plaintiff's injuries. It is well established that a plaintiff only has to prove one specification of negligence in a complaint, and not all of them, to recover from a defendant. Connecticut's rules on summary judgment are governed exclusively by sections 378-86 of the Connecticut Practice Book. None of these rules allow a defendant to obtain a partial summary judgment against a plaintiff to eliminate some but not all of the allegations of a single count of the complaint. The claim here in paragraphs 10 and 11 of the first count are intermingled with other product liability claims against the defendants. In order to obtain a summary judgment a party must show not only that there is no genuine issue of material fact, but also that the moving party is entitled to judgment as a matter of law. Section 384, Connecticut Practice Book; Bartha v. Waterbury House Wrecking Co., supra, 11. Connecticut does not have a procedure for rendering judgment for a defendant on part of a count of a complaint. A summary judgment cannot be granted for a defendant unless it disposes of all of the issues in the count. Telesco v. Telesco, 187 Conn. 715, 718, 719." Many other Superior Courts have recognized that summary judgment is inappropriate where a party seeks judgment on some but not all of the allegations of a single count of a complaint. See, for example Home Insurance Company v. Hartford Underwriters Ins. Company, Superior Court, judicial district of Middlesex, Docket No. X04CV030103487S (Quinn, J., April 6, 2005) ( 39 Conn. L. Rptr. 60); Fiamengo v. Great American Insurance Company, Superior Court, judicial district of Hartford, Docket No. CV000802480S (Shapiro, J., Nov. 16, 2004); Bank of Boston v. Southbury Hotel Associates, Superior Court, Judicial district of Waterbury, Docket No. 111813 (Pellegrino, J., July 18, 1994); Vernon Computer Learning, Inc. v. Round Up 4 Network, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 020394044S (Wolven, J., Aug. 15, 2003); Augenstern v. Bush, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 90-0304233S (Gray, J., Dec. 28, 1993); Herrman v. Stamford, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV88 0254069S (Lewis, J., July 21, 1992) ( 2 Conn. L. Rptr. 817). A small number of other Superior Courts have considered partial summary judgment as a means of clarifying issues and allowing only viable issues to proceed to trial. See, Mazurek v. Great American Insurance Company, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. (X02) CV010177433S (Schuman, J., Dec. 16, 2004) ( 38 Conn. L. Rptr. 402); Ambrosino v. Superior Plating Co., Superior Court, Docket No. CV94309952S (Maiocco, J., Sept. 19, 1996). Recently, Judge Alander addressed this issue in Pelletier v. Sordoni/Skanska Company, Superior Court, judicial district of Waterbury, Docket No. X06 CV95 0155184S (May 5, 2005). There he stated: "The trial courts of this state are split as to whether Practice Book § 17-51 authorizes the entry of summary judgment on part of a claim within a single count of a complaint. See, e.g., Cave v. Farm Family Mutual Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV95-0125978 (December 31, 1996) (Vertefeuille, J.) ( 18 Conn. L. Rptr. 396) in which the court held that summary judgment may not be entered for only part of a count of a complaint. Contra, e.g., Mazurek v. Great American Ins., Superior Court, Complex Litigation Docket at Waterbury, Docket No. (X02) CV 01-0177433-S (Dec. 16, 2004) (Schuman, J.) ( 38 Conn. L. Rptr. 402) in which the court held that it had authority to grant partial summary judgment on some specifications of liability within the various counts and deny summary judgment as to the remaining specifications within those counts. I conclude upon reviewing the language of Practice Book § 17-51 that it authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim. Cf. Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 00 0822116 S (Aug. 1, 2003) (Sheldon, J.) ( 35 Conn. L. Rptr. 347) in which the court held that § 17-51 merely authorizes the entry of summary judgment on part of a claim when multiple claims are combined in a single count. Practice Book § 17-51 provides that `If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim.' By its terms, § 17-51 authorizes the entry of summary judgment in two situations: (1) when a defense applies to only part of a claim; and (2) when a part of a claim is admitted. In both situations, it must also be practical to enter final judgment with respect to that part of the claim for which summary judgment is sought and sever it from the remainder of the claim. Id." (Footnote omitted).
Here the sole claim made in the First Count is one for breach of contract. It contains numerous allegations regarding ways in which the Defendant is alleged to have breached its contract with the Plaintiff, including those set forth in Paragraph 10. Summary judgment as to that paragraph would still leave the Plaintiff's claim for breach of contract based on the other allegations. At trial that claim would be presented to the trier of fact based on those remaining allegations, although, if no evidence is found to support a specific allegation of breach, the trier would be free to disregard that allegation. Conversely, if only one of the allegations regarding the Defendant's alleged breach of contract is proven, then the Plaintiff would still have established its claim of breach of contract. Thus the allowance of summary judgment procedure here to attack individual allegations in support of a claim does not serve to terminate the Plaintiff's breach of contract claim and the court could not enter summary judgment as to the First Count. The test in deciding a motion for summary judgment is whether a party would be entitled to a directed verdict on the same facts. Serrano v. Burns, 248 Conn. 419, 424 (1999). The elimination of only one allegation in support of a claim while leaving others for trial, clearly would not entitle the moving party to a directed verdict on that claim and, consequently, this court agrees with those decisions that hold that partial summary judgment is not appropriate as to individual allegations of a count of a complaint. Therefore the Defendant's motion for summary judgment as to Paragraph 10 of the First Count is denied.
The Defendant also claims that summary judgment should be granted as to all of the First Count because the damages claimed in the complaint are not provided for or contemplated by the contract. However the damages claimed here are not based solely on amounts allowed under the contract but for additional costs incurred as a result of the Defendant's alleged breach of the contract. The Plaintiff alleges that because of certain actions of the Defendant, the completion of the project was substantially delayed. Expenses incurred as a result of such delay, including overhead, if proven, are an appropriate element of damages in a case such as this. Southern New England Contracting Co. v. State, 165 Conn. 644, 663 (1974). In any event, the determination of damages involves questions of fact. Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 68 (1998). Here those facts are in dispute and therefore summary judgment is not warranted. Therefore the motion for summary judgment is denied in its entirety.