Opinion
No. CV 05-4007221
March 10, 2008
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is a four-count subrogation action in which plaintiff seeks to recoup insurance proceeds paid for damages incurred when a frozen pipe caused water damage at the Hartford Golf Club.
On April 4, 2007, defendant Hartford Sprinkler Company moved for summary judgment as to Counts Two (breach of contract), Count Three (breach of express warranty), Count Four (breach of implied warranty).
I.
The elements of a breach of contract are well established in Connecticut and consist of the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). Plaintiff claims the existence of a question of material fact as to whether an oral contract existed by presenting some receipts, allegedly issued by the defendant sprinkle company, one of which contains a notation which states "contract." The plaintiff also provides previous inspection reports generated by the defendant, as well as a deposition transcript of one of Hartford Golf Club's maintenance workers which contains a statement indicating some type of agreement between Hartford Sprinkler and Hartford Golf Club had been in place at the time in question. The affidavit provided by the defendant of Theophilus Kita, who was and still is president of Hartford Sprinkler, indicates that the defendant company was hired by Hartford Golf through "verbal communication."
The existence of a contract is a question of fact to be determined by the trier of fact on the basis of all of the evidence and the determination of whether a contract is oral or written is also a question of fact. Avon Meadow Condominium Ass'n., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 695, 719 A.2d 66 (1998).
These submissions are sufficient to raise a material question of fact as to whether a contract existed between the parties.
II.
Plaintiff has presented no evidence of the existence of an express warranty alleged in Count Three. Plaintiff acknowledges in its memorandum in opposition to this motion of its inability to provide any evidence of an express warranty due to the death of the individual who allegedly entered into the contract at issue. There remains no question of material fact as to whether any express warranties were made between Hartford Golf Club and Hartford Sprinkler.
III.
Both parties agree that if a contract existed between them, it was a service contract. While such contracts come with certain conditions and expectations, a breach of which gives rise to a breach of contract claim, the plaintiff has failed to point to any case law which recognizes an independent claim for breach of an implied warranty as alleged in Count Four, with regards to a service contract.
It is an implied condition of every service contract that the service will be performed in a workmanlike manner . . . A breach of this implied condition would be a breach of contract.
Ferrigno v. Pep-Boys — Manny, Joe Jack of Delaware, Inc., 47 Conn.Sup. 580, 582, 818 A.2d 903 (2003). No authority has been found in which an implied warranty to perform the services in a workmanlike manner has been given status as an independent cause of action; rather, such a claim has been viewed as a breach of contract.
Moreover, where breach of service contract claims and negligence claims have been asserted in the same action, our courts have combined such claims into one negligence claim. See Page v. Hotchkiss, Superior Court, judicial district of Windham, Docket No. CV 02-0067814 (December 2, 2003, Cosgrove, J.) [ 36 Conn. L. Rptr. 193]; Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 871, 794 A.2d 997 (2002).
Motion for summary judgment granted as to Counts Three and Four and denied as to Count Two.