Opinion
No. CV08 5013102 S
December 8, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #123
The defendant City of New Haven ("City") has moved to strike the Second, Third, Fourth, Eleventh and Seventeenth Counts of the plaintiff, Stamford Wrecking Company's Revised Complaint dated June 11, 2008. This defendant claims that the allegations contained therein are legally insufficient to support the causes of action set forth in these counts.
The named defendants in this action are the City of New Haven, Payne Environmental, LLC, Neil Payne, Dunn Environmental Inspections, LLC, and Richard Dunn.
At oral argument on August 25, 2008, the parties informed the court that the Second Count could be stricken by agreement. The Third Count alleges a breach of the covenant of good faith and fair dealing (common law). The Fourth Count alleges negligent misrepresentation. The Eleventh Count alleges negligent supervision. The Seventeenth Count alleges civil conspiracy.
The plaintiff has also withdrawn its claim for relief regarding attorneys fees as to the City of New Haven.
The claim arises from an agreement between these parties involving asbestos removal and the demolition of a building. The plaintiff, Stamford Wrecking Company ("Stamford") alleges it entered into a contract with the City to perform asbestos abatement and the demolition of the former Macy's building at 20 Church Street, New Haven, Connecticut (the "project"). The plaintiff claims that after it commenced asbestos removal, it discovered unanticipated problems relating to the asbestos removal using conventional and/or standard remediation techniques. The plaintiff alleges that the City had prior notice that conventional and/or standard remediation techniques would be insufficient to complete the safe removal of the asbestos at the project. The plaintiff alleges it requested monetary compensation for additional extra work and delays associated with removing the asbestos at the project, and that the City has improperly rejected its request.
The City moves to strike the Third Count arguing that the facts alleged by the plaintiff, even if proven, do not rise to the level of the dishonest purpose or sinister motive required to state a claim for a breach of the implied covenant of good faith and fair dealing. Regarding the Fourth, Eleventh and Seventeenth Counts alleging negligent misrepresentation, negligent supervision and civil conspiracy, the City argues that these are essentially breach of contract claims couched as tort claims. Additionally as to the Fourth and Eleventh Counts, the City argues that the plaintiff has failed to plead a statute abrogating the City's governmental immunity. The City argues, as well, that the Fourth and Eleventh Counts also should be stricken because the City has governmental immunity for discretionary acts. Regarding the Seventeenth Count alleging civil conspiracy, the City asks that it be stricken because said count fails to allege elements of any underlying substantive tort. In the event that the court finds that elements of an underlying substantive tort are alleged, the Seventeenth Count should still be stricken because the acts alleged are discretionary in nature, entitling the City to governmental immunity.
I Standard of Law Re Motion to Strike
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The burden of alleging a recognizable cause of action rests upon the plaintiff. McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973).
II Third Count Implied Covenant of Good Faith and Fair Dealing
The City moves to strike the Third Count arguing that the facts alleged by the plaintiff, even if proven, do not rise to the level of the dishonest purpose or sinister motive required to state a claim for a breach of the implied covenant of good faith and fair dealing.
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. To constitute a breach of that covenant, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal citations omitted; internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 80-81, 837 A.2d 875 (2004). "Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient." Id. "Bad faith in general implies both `actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.'" Habetz v. Condon, 224 Conn. 231, 237 (1992) 618 A.2d 501 (1992)quoting, Black's Law Dictionary (5th Ed. 1979).
The third count incorporates the first twenty-eight paragraphs of the first count which alleges a breach of contract as to the City. The third then alleges that said actions constitute a breach of the common-law duty of good faith and fair dealing. Therefore a review of the allegations in the first count is appropriate, first count. In the first count, the plaintiff alleges that the City hired Payne and Payne Environmental to monitor environmental aspects of the asbestos removal Project, but that the Payne defendants engaged in an "intentional and malicious campaign" to distort and escalate the hygienic testing component of the Project for economic gain. The plaintiffs then allege that the Payne defendants hired the Dunn defendants to assist them, but that the Dunn defendants "sabotaged and delayed" the Project for economic gain. There are no similar complaints as to the City regarding dishonest purpose or sinister motives. The allegations as to the City regard a refusal by the City to pay for what the plaintiff alleges was extra work under the contract. The plaintiff alleges that said refusal is a breach of the terms of the contract between the plaintiff and the City. The fact that the plaintiff has now, by the addition of several paragraphs, alleged that this conduct amounts to a breach of the covenant of good faith and fair dealing is insufficient. The motion to strike the Third Count is granted.
III Fourth Count Negligent Misrepresentation
The Fourth Count alleges negligent misrepresentation. The Fourth Count incorporates the first twenty-eight paragraphs of the First Count alleging a breach of contract and adds several additional paragraphs. A reading of the Fourth Count in a light most favorable to the plaintiff reveals that the plaintiff alleges that after the plaintiff commenced its asbestos remediation work for the City, the plaintiff discovered unanticipated and undisclosed problems with a coating on the metal decking of the basement, first, second and third floors of the Macy's Building. This coating was applied to the decking, onto which asbestos fireproofing material was then sprayed. The plaintiff alleges it was unable to remove the coating through standard and conventional remediation techniques and thereafter, reported the condition to the City, as the coating was contaminated with asbestos. The plaintiff alleges that the City, in response, "falsely" claimed that standard remediation techniques would resolve the problem, despite admissions by the City's representatives that the condition was, in fact, a "change order" and an "extra." The plaintiff, further, alleges that the City knew or should have known that the coating was not water soluble, nor removable with standard techniques, as prior to the commencement of the Project, the City learned of the coating, but did not inform the plaintiff of this. Nonetheless the City has rejected the plaintiff's claims for additional compensation for "extra" work. The plaintiff claims that it reasonably relied upon the City's representations that the plaintiff would only be responsible for removing asbestos containing spray-on fireproofing insulation that was water soluble, using conventional techniques, when it entered into the contract with the City. The discovery of the coating and its need for removal has caused the plaintiff financial detriment.
Our Supreme Court "has long recognized liability for negligent misrepresentation. [The court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Tort ([1977]): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987); see also Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575-76, 657 A.2d 212 (1995). To sufficiently establish a claim of negligent misrepresentation the plaintiff has to establish (1) that the City made a misrepresentation of fact; (2) that the City knew or should have known was false; and (3) that the plaintiff reasonably relied on the misrepresentation; and (4) that the plaintiff suffered pecuniary harm as a result. See, Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007); Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).
Since the rule of liability is based upon negligence, the City is subject to liability if, but only if, has failed to exercise the care or competence of a reasonable person in obtaining or communicating the information. 3 Restatement (Second) Torts § 552, comment (e), p. 130 (1977). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact." (Citations omitted.) (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 201-02. "Proving a false representation is, however, only one part of a claim of actionable misrepresentation. To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation." Visconti v. Pepper Partners LTD Partnership, 77 Conn.App. 675, 682-83, 825 A.2d 210 (2003); Williams Ford, Inc., v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 218; Giametti v. Inspections, Inc., 76 Conn.App. 352, 363-64, 824 A.2d 1 (2003); 3 Restatement (Second) Torts § 552, pp. 126-27 (1977).
The City argues that the Fourth Count is nothing more than a breach of contract claim, despite the allegation of a tort, and that the plaintiff seeks the same damages as it claims in the breach of contract count as the injury arises out of the alleged breach of the contract. See, Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001). The City argues that the gravamen of the dispute is whether the removal of the asbestos tainted coating is an "extra" under the terms of the contract.
In the present case, the court must look beyond the language used in the complaint to determine what the plaintiff really seeks. Id. "An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." Id. "It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise." Id. A party may bring a claim. It is also true that "[i]f the plaintiff's complaint otherwise contains the necessary elements of negligent misrepresentation, it survives a motion to strike, as a remedy for negligent misrepresentation is independent of a remedy for a breach of contract." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 563, 657 A.2d 212 (1995). A plaintiff is not barred from pursuing a negligence claim because they may also have a breach of contract claim. Id. However, while the plaintiff is not barred from pursuing a negligent misrepresentation claim in addition to its breach of contract claim, the plaintiff has not sufficiently alleged negligent misrepresentation. There appears to be no allegations that the City, even if it knew or should have known of the presence of the coating, also knew or should have known that the coating could not be remediated by conventional techniques or was not water soluble. The motion to strike the Fourth Count is hereby granted.
IV Eleventh Count Negligent Supervision
The Eleventh Count alleges negligent supervision by the City. As was the case with the Third and Fourth Counts, the plaintiff incorporates the initial twenty-eight paragraphs of the First Count (breach of contract) as the first paragraphs of the Eleventh Count. The plaintiff, thereafter, alleges that the City, which hired the Payne defendants to monitor the environmental aspects of the Project, also had the duty to supervise Payne in the monitoring aspects. The complaint claims that the City knew or should have known that the Payne defendants were attempting to extend the life of the project for Payne's financial gain by imposing excessive remediation requirements not required by the contract between the City and the plaintiff. The plaintiff further claims that the City knew or should have known that the Dunn defendants were interfering with the plaintiff's performance and attempting to sabotage the plaintiff for Dunn's financial gain. The plaintiff alleges that the City's failure to supervise the Payne and Dunn defendants has resulted in financial losses and damages to the plaintiff.
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee); Roberts v. Circuit-Wise, Inc., 142 F.Sup.2d 211, 214 (D.Conn. 2001) (in negligent supervision action, plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had duty to supervise)." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 191, 842 A.2d 1177 (2004).
The plaintiff has alleged the City had a duty to supervise the Payne and Dunn defendants in paragraph 86 in Count Eleven.
The City in support of its motion to strike renews its argument that this count is another breach of contract claim. The court has already addressed this argument. Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 563. A plaintiff is not barred from pursuing a negligence claim because they may also have a breach of contract claim. Id.
Second, the City claims governmental immunity because the plaintiff has failed to allege General Statutes § 52-577, which abrogates governmental immunity. The Appellate Court in Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001) found that although the plaintiffs in Spears had failed to cite in their complaint General Statutes § 52-557n as statutory authority abrogating the defendants' governmental immunity, the defendant had subsequently become sufficiently apprised of the plaintiff's reliance on the statute by way of subsequent pleadings and argument. The question this court must answer therefore, is whether the plaintiff in the instant case has sufficiently apprised the defendant City of its intent to rely upon § 52-557n before the plaintiffs can avail itself of the abrogation of municipal immunity, as set forth in § 52-557n. The court finds after a review of the record that the City has been sufficiently apprised of the plaintiff's reliance on § 52-557n and has thus satisfied the notice requirement in Spears v. Garcia, supra, 66 Conn.App. 669.
Third, the defendant City argues that it is entitled to governmental immunity for its public and discretionary acts. While § 52-557n(a)(1)(A) provides that a political subdivision shall be liable for damages to person or property by "[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .," subdivision (a)(2)(B) codified the common law and provides that a municipality shall not be liable for damages to a person or property caused by the "negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."See also, Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48, 881 A.2d 194 (2005). Accordingly, a municipality is immune from the performance of governmental acts as distinguished from ministerial acts that are performed wholly for the direct benefit of the public and are supervisory in nature. These discretionary acts are in contrast to ministerial acts which are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988). "The hallmark of a discretionary act is that it requires the exercise of judgment." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).
General Statutes § 52-557n in relevant parts reads as follows:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
The City argues that deciding what work needed to be done on a public project and whether the work was done properly are decisions requiring judgment and discretion. See, Segreto v. Bristol, 71 Conn.App. 844, 804 A.2d 928 (2002) (general design and maintenance of stairway in a senior center required use of judgment and discretion entitling municipality to governmental immunity).
The plaintiff in opposition to the motion to strike argues that the City in drafting and issuing the Request for Proposal and accompanying Project specifications and in entering into the contract with the plaintiff, followed standard protocols and procedures. In doing so, the City was performing ministerial acts without the exercise of judgment or discretion. The court disagrees.
The purpose for this contract was for the remediation of asbestos at the site of the former Macy's building in downtown New Haven. The scope of this Project required the exercise of the duties of inspection, maintenance and repair of hazards. All of these duties factored in to the Request for Proposal, the contract between the parties and the performance of the contract. "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Grignano v. City of Milford, 106 Conn.App. 648, 656-57, 943 A.2d 507 (2008); see also, Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (defendants' acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment). The defendant's discretionary duty under the common law is not rendered ministerial by the mere fact that a municipality chooses to proceed through standard procedures regarding Requests for Proposal, accompanying specifications, bidding procedures and the like. The nature of the duty remains unchanged. Accordingly, the City's actions in connection with the inspection and maintenance of its premises are shielded by the immunity preserved under § 52-577n(a)(2)(B). The complaint contains no allegations regarding improper activities surrounding the preparation of the Request for Proposal.
The plaintiff further argues that even if the court determines that the allegations are considered a discretionary function as opposed to a ministerial function the City is still liable for negligence because the complaint contains sufficient allegations to fulfill established exceptions to immunity for discretionary functions.
"The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); Colon v. City of New Haven, 60 Conn.App. 178, 181; 758 A.2d 900 (2000). The plaintiff argues that the third exception applies, as the City's acts, as alleged, involve malice, wantonness or intent to injure, rather than negligence.
The plaintiff argues that the City's acts, as alleged, are sufficient to constitute an intent to injure, rather than negligence. However, the Eleventh count, as well, as the Fourth Count (negligent misrepresentation) allege causes of action based in negligence and do not allege intentional acts.
A generous review of the complaint reveals that none of the plaintiff's allegations allege conduct by the defendant City that could be considered wanton conduct, malicious conduct, intentional conduct. Any conduct that could be interpreted as such, is conduct alleged by other defendants. Accordingly, the complaint is insufficiently pleaded, as to the Eleventh Count alleging negligent supervision. It is ordered stricken.
V Seventeenth Count Civil Conspiracy
The City moves that the Seventeenth Count be stricken. The Seventeenth Count seeks to impose liability on the City by asserting a civil conspiracy cause of action by incorporating by reference the breach of contract allegations from the First Count along with three additional paragraphs. Essentially, the plaintiff claims the City attempted to prevent the plaintiff for being paid for extra work it performed on the Project.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 277 Conn. 635-37, 894 A.2d 240 (2006), quoting Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). "There is, however, no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; emphasis in original; internal quotation marks omitted.) Harp v. King, supra, 266 Conn. 779 n. 37. The complaint fails to allege the elements of any substantive tort.
Civil conspiracy is not a cause of action in itself, but rather is a variant of vicarious liability. See, e.g., Id.; Marshak v. Marshak, 226 Conn. 652, 669 (1993). The creation of liability by virtue of the "doctrine" of civil conspiracy appears to be confined to the domain of tort. See, e.g., Harp v. King, supra, 780; Restatement (2d) of Torts, § 876. "Ordinarily, one has a contractual duty, and thus is subject to contractual damages, only when one is a party to the contract or is very closely bound to the contract. Duties in tort, on the other hand, extend, as a general proposition, to all those reasonably foreseeably affected by the conduct. It makes sense to allow for a somewhat more remote form of vicarious liability in tort, but not in contract." Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown, No. X04 CV 02 0097138 S (Dec. 16, 2005) 40 Conn. L. Rptr. 565. Because the language defining conspiracies has been couched in language pertaining to tort, and the Seventeenth Count appears to limit itself to the underlying cause of action of breach of contract, the court agrees that the count should be stricken. Additionally, the court notes that having already granted the motion to strike, as it pertains to negligent misrepresentation and negligent supervision, no underlying tort count remains to which the count of civil conspiracy would apply.
VI Orders
The Defendant City of New Haven's Motion to Strike the Second, Third, Fourth, Eleventh and Seventeenth Counts of the plaintiff's Revised Complaint dated June 11, 2008, is hereby granted as to each count. The granting of the motion to strike the Second Count is by the agreement of the parties, and, therefore, no analysis of the Second Count is included in this Memorandum of Decision.