Opinion
No. FST CV 07 5004880 S
November 24, 2010
MEMORANDUM OF DECISION
This is an action which seeks to recover for losses suffered as a result of the delivery of defective goods. Although the complaint is framed in three counts only the third count which alleges breach of warranty pursuant to the Uniform Commercial Code (UCC) is necessary to embrace the plaintiff's claims. The facts which form the basis for the suit are as follows.
Since prior to 2004 the plaintiff has been engaged in the operation of three wholesale nurseries in Norwalk, Monroe and Danbury, Connecticut. The defendant was at that time and still is a nursery grower in Oregon engaged in the raising and sale of ornamental plants to other nurseries and nursery wholesalers within the United States. In the Spring of 2006 the defendant sold and delivered numerous rhododendron plants of the Baden Baden variety to the plaintiff at its Norwalk location. As the plants were offloaded from the delivery trucks they were inspected and placed in the general plant population and were made available for sale.
Baden Baden rhododendron is described as a low growing plant with red flowers.
On June 23, 2006 the Connecticut Agricultural Experiment Station (CAES), an agency of state government, conducted an inspection of the Norwalk nursery in order to determine the presence or absence of the pathogen, phytophthora ramorum (hereinafter PR) also known as sudden oak death. PR is a fungus like microorganism which causes death to a variety of plant life, including oak and rhododendron. One foliage sample from the defendant's shipment tested positive for PR. On July 18, 21, and August 4, 2006, as a result of the administration of various tests, the PR diagnosis was confirmed by the U.S. Department of Agricultural (USDA). On August 7, 2006 the USDA issued an Emergency Action Notification (EAN) which imposed a quarantine on numerous plants which were identified as host and associate hosts to the pathogen. This quarantine not only prohibited the sale of these plants but on August 15, 2006 CAES ordered the destruction of these plants. After related clean up and sanitization measures were completed, the USDA issued a release of the EAN on September 21, 2006, thereby enabling the plaintiff to resume sale of these plants. The plaintiff seeks to recover for its losses from the defendant.
The defendant denies that the PR infected rhododendron was infected at the time of sale since (i) the infection was not discovered until sometime after delivery, and (ii) the defendant had received from the Oregon Department of Agriculture (ODA) a certificate stating that the nursery was free of PR as of the date of the last inspection.
Factual Background
The following facts are an essential part of the background which preceded these events. In 2004 the plaintiff received a number of plant shipments from Hines Nursery in Oregon. In October 2004, CAES received notification that PR was found at Hines Nursery. As in 2006, CAES inspected the plaintiff's facilities in November 2004 and took a number of samples. Testing performed at USDA Laboratories in Beltsville, Maryland confirmed the presence of PR among the rhododendron species at both the Norwalk and Monroe facilities. As a result, both Norwalk and Monroe facilities were placed under quarantine and the sale of host and associated host plants susceptible to PR (75% of the nursery stock) was prohibited. The USDA granted a provisional release to the plaintiff in April 2005. The quarantine was lifted in June or July 2005 after the plaintiff undertook the remedial measures required by the USDA as enforced through CAES. These measures consisted of immediate cessation of sale of rhododendron and associated host plants in a two-meter zone designated by USDA. Plants were removed from the facility and incinerated. All nursery equipment such as trucks, tractors, forklifts, hand tools as well as the clothing of the nursery workers who were involved with these plants were sanitized. Finally the soil in and around the area of the contamination within a zone of ten meters was removed and it too was incinerated off-site. All of this work was performed under the guidance and supervision of CAES and USDA in accordance with USDA protocol then in effect. Both CAES and USDA had representatives on site to supervise the cleanup. Thereafter the ground area involved in the outbreak was graveled and covered with asphalt so as to create an impermeable surface. Millings (scrap chips of black top) were then placed over this surface.
Also in 2004 the defendant's nursery was found to have a kalmia (mountain laurel) plant infected with PR as a result of a routine inspection by ODA. Consequently, ODA conducted what is known as a "delimitation" survey whereby the boundaries of the target area for testing plant material is determined. The survey produced roughly 348 plastic bags of specimens with each bag containing at least four foliar samples. In addition, unknown quantities of soil samples were taken as well. None of these specimens were determined by ODA to have been infected with PR. Because of the infected kalmia plant the defendant's nursery was quarantined by ODA for a period of seven to eight weeks. Neither ODA nor USDA enforced a protocol similar to that which was performed by CAES and USDA at the plaintiff's facility in Connecticut. This meant that no culture of the sample specimens was taken at the USDA Laboratory and no remediation was required. Thus, the defendant did not remove and/or destroy any plant material in the delimitation zone or otherwise, did not remove soil except for an unknown number of samples, did not incinerate any soil and did not sanitize any nursery equipment, tools or clothing. It does not appear that any representative of USDA was present at any time during the process. In 2005, as a result of another survey which ODA conducted, the defendant's nursery was certified PR free. These PR free certifications continued annually through and including the month prior to the date of the defendant's first shipment to the plaintiff in 2006.
After being informed that PR had been found at the plaintiff's nursery from among plants shipped by the defendant, on August 14, 2006 ODA performed an inspection of defendant's nursery, took foliar samples from the same Baden Baden rhododendron beds from which the infected plant shipped to the plaintiff was harvested and found no PR. A trace forward was conducted by contacting all nurseries to whom the defendant had sold and delivered approximately 200 Baden Baden rhododendrons during the period January 1, 2006 through August 31, 2006. The results were negative.
At the plaintiff's nursery, the required follow up inspection conducted by CAES in 2005 was negative for PR and subsequent inspections performed each year through 2009 were likewise negative. None of the plaintiff's customers who took delivery of Baden Baden rhododendrons either before or after the 2006 PR find complained to the plaintiff that their plants were similarly afflicted.
The Warranty
As stated above, the plaintiff's allegation of breach of an implied warranty of merchantability control this case. Section 42a-2-314 of the General Statutes provides as follows:
"Sec. 42a-2-314. Implied warranty: merchantability: usage of trade. (1) Unless excluded or modified as provided by Section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement of even kind, quality and quantity within each unit and among all units involved, and (e) are adequately contained, packaged, and labeled as the agreement may require and (f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified as provided by Section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade."
"A dealer who sells goods which ordinarily are used in only one way impliedly warrants fitness for use in that particular way. The warranty is one of merchantability." Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 463 (1960). This is precisely what the defendant did here. The plaintiff ordered and the defendant sold Baden Baden rhododendrons which ordinarily are used for the sole purpose as ornamental plantings. In approaching the issue it is helpful to recall certain general principles which are applicable here.
Burden of Proof
The burden of proof that the warranty has been breached in on the plaintiff by a preponderance of the evidence, or as codified in § 42a-1-201(8) the "burden of establishing" a fact means that "the burden of persuading the trier of fact that the existence of the fact is more probable than its non existence."
"A party satisfies his or her burden of persuasion if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact or issue is true. Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968). It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318 (1968). But such preponderance does not refer to the number of witnesses but rather the evidence that is superior and more likely to be in accord with facts, Verdi v. Donahue, 91 Conn. 448, 450 (1917). The quality of the evidence controls, not the quantity. State v. Williams, 195 Conn. 1, 13 (1985).
When the evidence is equally balanced or in equipoise, then the proponent has not met his or her burden of persuasion. Brodie v. Connecticut Co., 87 Conn. 363, 364 (1913). A party has not met the burden of persuasion merely because the evidence is uncontested or uncontroverted because the trier, as the judge of credibility may disbelieve such evidence. Mercer v. Mercer, 131 Conn. 352, 353 (1944).
The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not. Terminal Taxi Co. v. Flynn, 156 Conn. at 316." (Alternate citations omitted.) Tait's Handbook of Connecticut Evidence, 3rd Ed. at 3.5.1, p. 140.
It is not one fact but the cumulative impact of a multitude of facts which establishes liability in a case involving substantial circumstantial evidence. State v. Rodgers, 198 Conn. 53, 58 (1985). The trier of fact is not permitted to resort to speculation or conjecture. State v. Stankowski, 184 Conn. 121, 136 (1981). "There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned." State v. Haddad, 189 Conn. 283, 390 (1983).
These principles are especially important in the present case because there is no direct evidence of the origin of the PR infection of the plaintiff's rhododendron plant in 2006. The defendant is quite correct when it asserts that in order to recover the plaintiff must prove that the plant in question was not merchantable at the time of sale. The sale was complete when title passed under § 42-a-401(2). "Title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods."
The Experts
The decision in this case depends almost entirely on the testimony of the parties' experts. The testimony of the other witnesses served to lay the factual foundation for the experts' opinions.
"Expert testimony is to be considered, weighed and tested like any other testimony. State v. Kelly, 77 Conn. 266, 275 (1904). The trier is not bound by the opinions of experts and is not compelled to accept such testimony as true. Pischitto v. Waldron, 147 Conn. 171, 172 (1960). The trier may accept part of the expert testimony and reject part as long as the parts accepted do not depend on the parts rejected. National Folding Box Co. v. City of New Haven, 146 Conn. 578, 586 (1959). It may accept the experts of one side and reject those offered by the other. Id. The trier may even accept the opinion of a lay witness over that of an expert witness in matters in which opinions by both are permissible. State v. Davis, 158 Conn. 341, 356 (1969). The trier may give constructions to expert evidence that are at variance with the claims advanced by the parties. Toffolon v. Town of Avon, 173 Conn. 525, 530 (1977).
Admittedly, although the trier of fact is not required to accept as true the opinions of qualified experts, it is not free to disregard such opinions and find facts on a technical matter solely on the trier's own knowledge and experience. Tanner v. Conservation Commission, 15 Conn.App. 336, 340-41 (1988).
A jury [fact finder] should not be instructed to accept the uncontradicted testimony of an expert; rather, it should be allowed to consider the expert's "demeanor, credibility, and veracity, and to determine the appropriate weight, if any, to be given his testimony." Speed v. DeLibero, 23 Conn.App. 437, 440-41 (1990). (Alternate citations omitted.) Tait's Handbook of Conn. Evidence, 3rd. Ed. at 7.5.6, pp. 522-23.
The plaintiff's expert, Dr. Peter Oudemans and the defendant's expert, Dr. Gary Chastagner came to the court with equally impressive credentials in the field of botanical pathogens. Dr. Oudemans opined to a reasonable degree of scientific probability that the cause of the PR found at the plaintiff's nursery in 2006 originated from the defendant's nursery. Dr. Chastagner on the other hand testified that it was "very unlikely" that the infection originated at that source.
Both experts dealt chronologically with the contemporaneous outbreak of PR at their respective nurseries in 2004. Dr. Oudemans expressed the view that while the pathogen can survive in soil for a "couple of years" it is less likely to survive during the cold of winter when, as in the plaintiff's case, all plants were removed from the nursery during the winter season. He stated further than in view of the distance of 200 feet between the locations of the 2004 and 2006 outbreaks, one would see a "trail of infected plants" between the two locations if the 2004 infection remained at the plaintiff's nursery till then. He then evaluated the control and remedial measures which the plaintiff took in 2004 and concluded that because the entire surface of the nursery where plants were stored was paved with asphalt, PR spores were "very unlikely" to survive from year to year. It was therefore his opinion that the 2006 outbreak was unrelated to the 2004 episode.
Critical to his opinion of causation is the manner in which the ODA handled the defendant's outbreak in the same year. As stated above, the scope of the remediation at that time was limited to the collection of numerous foliage samples and an undetermined quantity of soil samples because it was then thought that PR was only a foliar organism when it has been subsequently discovered that PR can affect the root system of a plant as well and even remain in the soil for a period of time. The court finds it significant that the ODA laboratory report found (exhibits 39 and 40) referred only to the kalmia samples submitted but made no mention of the soil samples. Dr. Chastagner agreed that the root system of a plant can be infected without the foliage showing symptoms of the disease. He also agreed that PR can survive in the soil without attacking the root. Dr. Oudemans stated that once the pathogen is in the soil it can be "difficult to clear" although it was Dr. Chastagner's estimate that the spores of the pathogen could survive in the soil for about one year. By contrast, Dr. Oudemans said the pathogen is able to survive in the soil for "a couple of years." It was Dr. Oudemans's belief that the remedial measures ordered by ODA were not "100% effective" because ODA did not require removal of soil in an area of at least one acre to a depth of 15 inches. Dr. Chastagner testified that the pathogen typically is found in the first two inches of soil depth so there was no need to go to that depth. The defendant argues that if Dr. Oudemans's opinion is correct it is less likely that the pathogen survived to a depth of 15 inches because it is less likely that there would be organic matter living in the soil at that depth, bearing in mind that the pathogen cannot survive without it. The court has weighed this hypothesis against the above factual findings and determines it to be unpersuasive in the overall chronicle of events.
The pathogen can be carried by shoes, clothing and machinery from place to place for a distance of several hundred feet. The court notes that even the top two inches of soil was not removed and incinerated at the defendant's nursery. Additionally, there is no evidence that any of the defendant's nursery workers' clothes, or the defendant's tools or equipment were sanitized.
This court has often analogized the process of satisfying the preponderance of evidence standard to that of a balance scale where the evidence in favor of the plaintiff causes one side of the scale to tip in the plaintiff's favor, even if only slightly. The court concludes after sifting and weighing the evidence that the plaintiff has tipped the scale in its favor. This result is based on several facts and inferences that can reasonably be drawn from these facts. They are as follows.
(1) ODA testing and treatment procedures in 2004 were incomplete, inadequate and not reliable in several respects.
(a) Culturing of foliar samples was not required.
(b) No plants were required to be removed and destroyed.
(c) No soil was required to be removed and incinerated to any depth.
Although soil samples were apparently tested and found negative there is no indication in laboratory reports of the depth to which these samples were taken. Nor is there any description of the methodology used to test these samples. This is significant because of the disagreement between the experts as to the soil depth to which the pathogen is able to survive.
(d) Tools, equipment and workers' clothing was not required to be sanitized.
(e) Plant quarantine was the only remedial measure required.
(2) Environmental conditions in Oregon in 2006 were conducive to the development of PR.
(3) PR had been found in other nurseries in the region of Oregon in which the defendant's nursery was located.
(4) The annual ODA inspections of defendant's nursery which resulted in PR free findings did not include soil samples and testing but was limited to foliar samples.
(5) The distance of 100 feet between the location of the infected kalmia in 2004 and the Baden Baden at issue in 2006 does not support the conclusion that it is unlikely that the pathogens spread that distance because of the numerous ways described above in which the pathogen can be carried from place to place, including water and air.
(6) The growing method utilized by the defendant whereby plants are grown not in containers but in the soil makes it inevitable that some leaf or other plant material would fall to the ground and remain on the surface or become embedded in the soil to an undetermined depth.
(7) The negative trace forwards conducted by ODA are no more persuasive than the fact that none of plaintiff's buyers complained of diseased plants.
(8) There is no evidence from which an inference can be drawn (i) that the infection originated from a plant other than defendant's; (ii). PR at plaintiff's nursery survived the 2004 outbreak and went undetected until 2006; (iii) PR arrived at the plaintiff's nursery from some other source.
Accordingly, the court finds that the defendant has breached the implied warranty of merchantability because the plant in question was infected with PR at the time it left the defendant's nursery.
Damages
"Sec. 42a-2-714. Buyer's damages for breach in regard to accepted goods. (1) Where the buyer has accepted goods and given notification as provided in subsection (3) of Section 42a-2-607 he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case any incidental and consequential damages under the next section may also be recovered.
Sec. 42a-2-715. Buyer's incidental and consequential damages. (1) Incidental damages resulting from the seller's breach include expenses reasonably incurred, inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be presented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty."
"The UCC makes a clear distinction between incidental and consequential damages. General Statutes § 42a-2-715, which corresponds to UCC § 2-715, provides that incidental damages include expenses incidental to the seller's breach, while consequential damages includes damages resulting from the seller's breach. "Because consequential damages are defined in a separate subsection, there is no question that these expenses are distinct from consequential damages." SR Metals, Inc. v. C. Itoh Co., 859 F.2D 814, 818 (9th Cir. 1988). As the official comment to § 2-715 of the UCC notes, incidental damages are intended to "provide reimbursement for the buyer who incurs reasonable expenses in connection with the handling of rightfully rejected goods or goods whose acceptance may be justifiably revoked . . ." These damages are clearly distinguishable from consequential damages, and therefore "may be recovered even when consequential damages are excluded." Carbontek Trading Co. v. Phibro Energy, Inc., 910 F.2d 302, 308 (5th Cir. 1990)." (Footnotes omitted.) Gaynor Electric Co. v. Hollander, 29 Conn.App. 865, 869 (1995). Consequential damages include lost profits. Shemitz Design, Inc. v. Newark Corp., 291 Conn. 224, 232 (2009).
"If they [plaintiff] want to rely on the right conferred by § 42a-2-607 to sue for damages flowing from the acceptance of nonconforming goods, they must show not only that the goods were nonconforming, but that their nonconformity has resulted in measurable damages. Such damages include losses "resulting in the ordinary course of events from the seller's breach"; General Statutes § 42a-2-714(1); or, more typically, damages measured by "the difference . . . between the value of the goods accepted and the value they would have had if they had been as warranted"; General Statutes § 42a-3-714(2); augmented, in a proper case, by incidental or consequential damages. General Statutes §§ 42a-2-714(3), 42a-2-715. Unless the goods delivered were totally worthless, these sections do not authorize recovery by the buyer as damages of the purchase price previously paid to the seller. Compare General Statutes § 42a-2-711(1). Rather, they contemplate that the buyer will prove an offset to the purchase price; see General Statutes § 42a-2-717; although the offset may, because of consequential losses, if proven, exceed the purchase price in amount. The record appears to indicate no financial claim by the defendants other than one for reimbursement of invoices previously paid, and storage and transportation cost incidental thereto." Superior Wire Paper Products, Ltd. v. Talcott Toll Mach., Inc., 184 Conn. 10, 15 (1981).
The above principles inform' the court's award of incidental and consequential damages.
The plaintiff claims several elements of incidental costs. The first is the cost of destruction of plant materials. (Exhibit 21.) The evidence shows, however, that the plaintiff exceeded the two-meter limit and destroyed plants in a ten-meter buffer zone. This action, though taken out of an abundance of caution, was recommended by CAES. Thus there was a reasonable basis for this precautionary protective and prudent measure. Exhibit 14 reflects this with a reference to a ten meter area in excess of the primary impact area as the "buffer zone." Referring to Exhibits 21 and 30 the court determines that the total cost of the plants destroyed was incurred pursuant to the prudent recommendation of the regulatory authority (CAES). Accordingly, the plaintiff is awarded $8,733 for the destroyed plant material.
The next incidental cost claimed is $7,162 in incinerator costs. This sum is awarded in full.
The waste disposal fee of $525 is uncontested and is allowed in full.
The trucking fee of $2,190 is uncontested and is allowed in full.
Machine time of $1,800 is allowed in full.
Labor costs of $3,100 for cleaning is allowed in full.
Administrative costs of $1,800 is allowed in full.
Mandatory reporting costs of $485 is allowed in full.
Lost profits are a recoverable element of consequential damages. Schemitz Designs, Inc. v. Newark Corp., supra. The plaintiff claims that it lost $56,811.51 in sales as a result of the quarantine. Mr. Passeck testified that his profit margin at the time ran between 12 and 16 percent. Thus, he seeks to recover $8,521.72 which represents 15 percent of the above figure. The defendant challenges the profit claimed on the grounds that it is based on unwarranted assumptions and is speculative and therefore not recoverable.
Lost profits or loss of sales may be awarded if the evidence affords a sufficient basis for estimating their amount with reasonable certainty. Beverly Hills Concept, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 69 (1998). The plaintiff has the burden of establishing lost profits to a reasonable certainty. Message Center Management, Inc. v. Shell Oil Products Company, 85 Conn.App. 401, 423 (2004). A plaintiff cannot recover for the "mere possibility" of making a profit. Beverly Hills Concept, Inc. v. Schatz Schatz, Ribicoff Kotkin, supra, 247 Conn. 70. To prevail, the plaintiff is required to provide the court with credible evidence quantifying the amount of damages that it would be entitled to recover. Outdoor Development Corp. v. Mihalov, 59 Conn.App. 175, 179 (2000). Proof of damages should be established with reasonable certainty and not speculatively and problematically. Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35 (2006).
More specifically, the defendant asserts that the plaintiff's figures are based on the assumption that its Norwalk location would have enjoyed at least the average of the annual growth experienced at his Danbury and Monroe locations during the quarantine period in 2006 namely, 16 percent. The defendant characterizes this as "pure speculation."
The plaintiff testified that Norwalk did more business in prior years than either Danbury or Monroe and therefore he believed it reasonable to estimate that Norwalk would have enjoyed at least the same growth rate.
In a case where the only evidence of lost profits was from the owner of the business itself, our Supreme Court has held that "in the absence of evidence to the contrary the court was entitled to draw the inference that the plaintiff's business would continue to be as profitable as it had been in the year and one half before the fire." Humphreys v. Beach, 149 Conn. 14, 21 (1961). Similarly, in The Kay Petroleum Corp. v. Piergrossi, 137 Conn. 620, 622-25 (1951), the trial court calculated lost profits on the basis of net profit for the year preceding the breach of contract. The defendant contended that in the absence of any evidence that the profit was likely to continue at the same rate, the court's conclusion involved an "unsupported assumption" which rendered the estimate "pure conjecture" and therefore unwarranted. In rejecting this argument the court held that "where the damage is to be recovered consists of the loss of perspective profits, the trier must estimate as best it can what the future is likely to be. The Home Pattern Co. v. Mertz Co., 86 Conn. 494 (1913) . . . They are often involved in some uncertainty and can be determined only approximately upon reasonable and probable estimates . . . In the absence of evidence to the contrary, the court is entitled to draw the inference that the volume of . . . business would continue to be at least as great during the year the parties operated under the contract."
The evidence on this issue consists of the testimony of Gary Passeck, the plaintiff's vice president, secretary and part owner as well as documentary evidence consisting of Exhibits 31 through 33 and 47. The figures appearing on these documents were prepared from the plaintiffs books, records and computer data. The defendant does not dispute their authenticity but stoutly disputes their reliability and probative worth arguing that it is strict speculation for Mr. Passeck to estimate that his normal business would have made a 16 percent profit on the diseased plants had it been able to sell them. The court is not persuaded. If it is proper to extrapolate lost profits from past profits, Westport Tree Service, Inc. v. Westport Transit District, 235 Conn. 1, 32-33 (1995), then it is just as proper to extrapolate lost profits from profits made at the plaintiff's other locations within Fairfield County for the same period especially when these other locations have historically done less business on an annual basis. The fact that these locations may have been growing in sales at the time appears to parallel Norwalk's experience.
The court finds that the lost profit estimates are reasonable and are based on solid records of past performance. The court finds the loss of sales caused by the PR infection to be $56,811.51 and that at the rate of 14 percent the lost profit was $7,953.61.
Total incidental and consequential damages awarded is $33,748.61.
Interest
The plaintiff seeks interest on the sum awarded at the rate of 10 percent per annum pursuant to § 37-3a of the General Statutes.
"This court has recently stated that General Statutes § 37-3a provides in relevant part that interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . . [P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him . . . The detention of the money must be determined to have been wrongful." (Internal quotation marks omitted.) Tang v. Bou Fakhreddine, 75 Conn.App. 334, 347 (2003). The party seeking prejudgment interest has the burden of demonstrating that the retention of money is wrongful, and this "requires more than demonstrating that the opposing party detained money when it should not have done so." (Internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 26, cert. denied, 273 Conn.App. 901." (Alternate citations omitted.) Travelers Property Casualty Co. v. Christie, 99 Conn.App. 747, 763 (2009).
"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule." Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26 (2004).
The plaintiff's right to interest is wholly dependent upon whether the damages sought and awarded were wrongfully withheld or detained from the plaintiff. The damages suffered in the present case are analogous to those sought in a personal injury case in that "Personal injury claims seek to make persons whole by monetarily compensating them for a loss negligently caused by others. Damages are typically uncertain and the purpose of the damages is to restore the injured, as nearly as money can, to the status they were enjoying and would have continued to enjoy prior to the negligent act. Such claims do not seek to regain money detained by another. Foley v. Huntingtown Co., 42 Conn.App. 712, 741 (1996).
Before the enactment of § 37-3b of the General Statutes our Supreme Court concluded that requests for prejudgment interest in personal injury claims do not typically constitute a claim for the wrongful detention of money before the rendering of judgment. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 308 (1984). In the present case the plaintiff seeks to be made whole for the injury it suffered at the hands of the defendant. Damages for loss of ornamental shrubberies caused by a pathogen which originated at the defendant's nursery from an unknown source of which the defendant had no prior knowledge can hardly be deemed the result of wrongful detention of money. That the plaintiff's damages are uncertain is reflected in the fact that the liability was close, the losses were subject to a bona fide dispute and ultimately were awarded in a significantly lesser amount than claimed. The court finds that the sum awarded was not wrongfully detained and that the demands of justice cause the court to deny interest.
The defendant has pleaded counterclaim and set off for the unpaid balance of $52,253.58 for the plants sold and delivered. Prior to discovery of the PR, plaintiff paid a total $26,591.88 of this sum. The defendant not only seeks the balance of $25,661.80 but also an agreed service charge of one and one-half percent per month together with attorneys fees. The court notes that there is no evidence nor does the defendant make any such claim for the number, if any, of the unpaid for plants which were not destroyed and were available for sale by the plaintiff. Nor is there any evidence of the number of plants, if any, which were part of the $26,591.88 for which the plaintiff paid which may have been destroyed. The court is unable to determine on its own in the absence of a breakdown by either party which of the plants listed on the invoices (Exhibit C through H) were destroyed and which were not and thereafter sold by the plaintiff. In fact, it is apparent that some plants not purchased from the defendant were also destroyed in the remediation process, e.g., taxus x Media `Nigra.' Additionally, the court is uncertain how or whether the list of destroyed plants can or should be matched up with the invoiced plants. The defendant has therefore failed in its proof. As the defendant itself has argued, damages cannot be left to the speculation and conjecture of the finder of fact.
Judgment may enter for the plaintiff on the Third Count of the Complaint in the amount of $33,748.61 without interest and for the plaintiff on the counterclaim and set off.