Opinion
No. CV04 4000604S
March 30, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendant, City of Shelton, has filed a Motion for Summary Judgment pursuant to Practice Book § 17-44 as to Counts Five and Six of the Complaint. This case arises out of a six-count Complaint alleging that the plaintiff, Forever Green Athletic Fields, Inc. ("Forever Green"), was hired by Goodwill Sports Association, Inc. ("Goodwill") to install grass fields on property owned by the defendant City of Shelton. In said Complaint, the plaintiff alleges two claims against the City of Shelton alleging that the City of Shelton has been unjustly enriched as a result of the actions of the parties (Count Five) and that the City of Shelton is in breach of an implied contract with the plaintiff (Count Six). The defendant, Greenwich Insurance Company, joins the plaintiff in opposing the City of Shelton's Motion for Summary Judgment.
The movant has the burden of demonstrating the absence of any genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law." (Internal quotation marks omitted.) Id.
"[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Id.
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999); accord Daoust v. McWilliams, 49 Conn.App. 715, 719, 716 A.2d 922 (1998).
It is undisputed that Forever Green and Goodwill entered into a contract dated January 21, 2003 whereby Forever Green agreed to supply and install a replicated grass football field for the agreed-upon amount of $425,000. The plaintiff alleges that it was forced to perform additional work at the request of and for the benefit of Goodwill and the City of Shelton. It is undisputed that the City of Shelton posted a payment bond on this public works project pursuant to Connecticut General Statutes § 49-41 in the amount of $425,000. Connecticut General Statutes § 49-41, known as the "Little Miller Act," was patterned after the Federal Miller Act, 40 USC § 270A though D. It is well held under federal law that if a payment bond is furnished under the Miller Act, subcontractors such as the plaintiff would have no claim based on quantum meruit against the governmental authority in the absence of privity. United States v. Musey Trust Company, 332 U.S. 234, 241; H.W. Caldwell Son, Inc. v. United States, 407 F.2d 21, 23; and Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727, 729. Counsel for the plaintiff conceded at oral argument that Forever Green is not in privity with the defendant City of Shelton.
The question presented herein is whether a subcontractor who is not in privity with the governmental authority which has posted a payment bond pursuant to Connecticut General Statutes § 49-41 may maintain an action based on unjust enrichment against that governmental entity. The court rules that it may not.
Although, there is no appellate court authority on this question, there is a well reasoned opinion by then-Judge Berdon on this subject in The Kerite Company v. City of Norwalk et al., 32 Conn.Sup. 168 (1975). The Kerite court found that the legislature, in enacting Connecticut General Statutes § 49-41 intended that a subcontractor who had no privity with the town may not proceed against it in quantum meruit. Relying on the case authority prohibiting a subcontractor from claiming a mechanic's lien against a municipality with which it did not have privity, the court in Kerite reasoned that "it would appear to this court that our legislature also intended that when a town complies with General Statutes § 49-41, the subcontractor and material man who have no privity with the town cannot proceed against the town based on quantum meruit. In such a case, the legislature has made available the remedy under General Statutes § 49-42 to protect their interests." See, National Fireproofing Company v. Huntington, 81 Conn. 632. This reasoning has been relied upon and cited with approval. Weischet v. A. Prete Son Construction Company, Inc., No. 69621 (October 19, 1995); James T. Kay Company, Inc. v. J.H. Hogan, Inc., No. 090998 (February 25, 1992) ( 6 Conn. L. Rptr. 140); and Kay Company, Inc. v. City of Waterbury, No. 099961 (August 7, 1991).
It should be noted that the brief of the defendant Greenwich Insurance Company relies on the assertion that it can be inferred from the allegations of the Complaint that there is privity between the City of Shelton and the plaintiff. While counsel for the defendant Greenwich Insurance Company could not have known that the plaintiff's counsel would concede at oral argument that there was no privity, said concession defeats the claim that one can infer otherwise.
Based on the reading of the Kerite case and its progeny, as well as a reading of the federal cases addressing the federal Miller Act, the defendant City of Shelton's Motion for Summary Judgment is granted.
The Court
By Shluger, J.