Opinion
WWMCV166010701S
06-29-2017
Town of Thompson v. Green Environmental, Inc. aka Green Environmental, Inc. (MA)
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION TO STRIKE, #109, SHORT CALENDAR, MARCH 6, 2017)
Harry E. Calmar, J.
The defendant moves to strike the plaintiff's request for prejudgment interest contained in paragraph three within the prayer for relief.
This action involves a reported release of heating oil from an underground storage tank (UST) owned and maintained by the plaintiffs, the town of Thompson and the Thompson Board of Education (Thompson). Thompson filed the original three-count complaint on August 2, 2016, against the defendant, Green Environmental, Inc. (Green), and a revised complaint on December 8, 2016. The revised complaint alleges the following facts. Thompson and Green entered into a contract requiring Green to clean the two USTs located underground at the Thompson Public Schools. One of the USTs is a 10, 000-gallon fiberglass reinforced tank used to store No. 2 heating oil for the boiler system used by Thompson for its schools. This UST is located beneath a concrete pad, and can only be accessed by removing a manhole cover and entering a confined space.
In July 2014, Green conducted a cleaning of both USTs. The scope of Green's services required it to remove heating oil from the USTs and place the heating oil into a holding tank during the cleaning. Further, in order to properly access and clean each UST pursuant to the contract, Green was required to temporarily disconnect couplings and remove certain piping connected to the USTs, including piping in the return line of the UST system. Upon completion of the cleaning, Green allegedly attempted to reconnect the couplings and piping that had been removed, and replaced the manhole cover on the UST pad. According to Thompson, the USTs then remained out of use until the start of the school year, which occurred on or about August 25, 2014.
Thereafter, on or about October 23, 2014, Thompson asserts that an odor at the Thompson Middle School was reported to facilities personnel. Thompson claims that upon investigation of the odor, facilities personnel discovered that the pipe union was loose. Specifically, Thompson alleges that facilities personnel found fuel pooling in the sump pump and being released from a pipe union in the return line, contaminating the surrounding soil and groundwater, and also migrating to the storm drainage system. Thompson further alleges that the heating oil was released into the nearby right of way of the Providence & Worcester Railroad Company. Thompson states that its facilities personnel immediately tightened the pipe union to stop the release.
Subsequently, Thompson filed its three-count complaint, which was later revised as previously noted. Count one of the revised complaint sounds in negligence. Specifically, Thompson alleges in count one that Green breached its duty by failing to properly tighten the couplings and piping into the return line of the UST system, causing Thompson substantial compensable damages. Count two of the revised complaint asserts breach of contract. Specifically, Thompson asserts in count two that it entered into a valid contract with Green which was breached when Green failed to properly reconnect the piping in the return line, thereby causing the release. Last, count three of the revised complaint asserts reimbursement under General Statutes § 22a-452. Specifically, Thompson asserts in count three that it is entitled to reimbursement from Green for the reasonable costs expended, including costs associated with removal and mitigation efforts.
As required by law, Thompson reported the release to the Connecticut Department of Energy & Environmental Protection (CTDEEP) and hired Kropp Environmental Contractors, Inc. (Kropp), a Connecticut licensed hazardous materials spill cleanup contractor, and Cardno, Inc. (Cardno), an environmental consulting firm, to conduct several emergency spill response measures. Further, Tanknology, Inc. conducted tightness testing of the UST system to confirm there were no more leaks. Thompson was also required by CTDEEP to remove the UST and to excavate the contaminated soil on the nearby right of way owned by the Providence & Worcester Railroad Company. Other remediation costs included the installation of three wells, continued vacuuming of free product out of the monitoring wells of the UST, and the installation of an active pump and treat system to remediate contaminated ground water. Thompson asserts in the revised complaint that Green has not reimbursed it for any of the costs and expenses incurred.
On January 5, 2017, Green filed a motion to strike portions of the revised complaint wherein Thompson requests to recover attorneys fees, litigation costs and expenses, and prejudgment interests. Specifically, Green moves to strike the following: (1) the request for " legal . . . costs and expenses" contained in paragraph thirty-nine within count one; (2) the request for attorneys fees contained in paragraph fifty within count three; (3) the request for attorneys fees contained in paragraph two within the prayer for relief; and (4) the request for prejudgment interest contained in paragraph three within the prayer for relief.
Thompson filed a memorandum of law in opposition on February 7, 2017. In its memorandum of law in opposition, Thompson does not object to the defendant's motion to strike those portions of the complaint seeking legal costs/expenses and attorneys fees. Thompson does object, however, to Green's motion to strike paragraph three of Thompson's prayer for relief, which seeks prejudgment interest pursuant to General Statutes § 37-3a. Therefore, the only issue remaining in dispute before the court is the motion to strike the request for prejudgment interest within the prayer for relief.
Green filed a reply memorandum in response to Thompson's memorandum of law in opposition on February 23, 2017. Both parties presented argument at short calendar on March 6, 2017.
DISCUSSION
" 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). " [A] motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . ." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In 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). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
Further, under our rules of practice, a party may move to strike a prayer for relief. See Practice Book § 10-39. A prayer for relief, however, may " be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
In the present case, Green moves to strike paragraph three of Thompson's prayer for relief on the ground that Thompson is not entitled to prejudgment interest pursuant to General Statutes § 37-3a. Specifically, Green argues that when there is no claim for the wrongful detention of money, prejudgment interest cannot legally be awarded. Green contends that § 37-3a does not apply to negligence claims, or breach of contract claims in which the damages sought are to compensate for losses incurred as a result of negligence. Green asserts that all of Thompson's causes of action either sound in negligence, or in breach of contract where the damages sought are the result of alleged negligence. Therefore, Green concludes that Thompson has not asserted any cause of action that entitles it to prejudgment interest. Thompson counters that its claim for prejudgment interest is legally sufficient.
First, Thompson argues that the purpose of General Statutes § 37-3a is to compensate parties that have been deprived of the use of their money. Thompson contends that even though prejudgment interest is not generally awarded on a claim for negligence or on a claim for breach of contract seeking damages incurred as a result of negligence, in the present case, prejudgment interest can be properly awarded because Thompson's request does not refer specifically to any one of its claims, but refers to all of its claims generally. Further, Thompson notes that the decision to grant prejudgment interest is an equitable determination at the discretion of the trial court.
Second, Thompson argues that prejudgment interest is also recoverable on a claim for reimbursement under General Statutes § 22a-452. Specifically, Thompson asserts that even though § 22a-452 does not address prejudgment interest explicitly; it does provide a framework for recovery by a party of a definite or fixed sum for the reasonable costs expended for remediation. Thompson further asserts that the very purpose of § 22a-452 is to provide a plaintiff with a private right of action for reimbursement of environmental cleanup costs when a defendant is responsible for contamination. Thompson claims that here, Green has wrongfully withheld funds due to Thompson for its remediation of the UST leak, which Green is statutorily obligated to pay.
Green responds in its reply memorandum that nowhere in General Statutes § 22a-452 did the legislature include any language concerning awards of prejudgment interest. Green contends that the absence of any express language within § 22a-452 authorizing awards of prejudgment interest is a strong, determinative indicator that the legislature did not intend to include such a remedy therein. Green compares the language of § 22a-452 to General Statutes § 22a-451, which grants the commissioner of environmental protection a remedy to recover awards of interest. Green argues that the express language of § 22a-451 demonstrates that the legislature intended to provide this remedy to the commissioner of environmental protection, but did not intend to extend it to any person, firm, corporation or municipality in § 22a-452. Thus, Green concludes that Thompson is limited to the remedies the legislature expressly permits in § 22a-452.
I
General Statutes § 37-3a
The court begins its analysis by considering the arguments regarding prejudgment interest under General Statutes § 37-3a.
General Statutes § 37-3a provides in relevant part: " Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable."
" [T]he primary purpose of § 37-3a is to compensate parties that have been deprived of the use of their money." (Internal quotation marks omitted.) System Pros, Inc. v. Kasica, 166 Conn.App. 732, 771, 145 A.3d 241 (2016). " Ordinarily, the decision of whether to grant interest under § 37-3a is primarily an equitable determination and a matter lying within the discretion of the trial court . . ." (Internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 227, 14 A.3d 307 (2011). " The statute does not . . . clearly and unambiguously set forth the factors that a trial court must consider in exercising its discretion to award interest." Id., 228. " Because § 37-3a provides that interest ' may be recovered'; it is clear that the statute does not require an award of interest in every case in which money has been detained after it has become payable." (Emphasis in original.) Id.
" [T]o award § 37-3a interest, two components must be present." (Internal quotation marks omitted.) Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 547, 111 A.3d 887, cert. denied, 316 Conn. 918, 113 A.3d 1016 (2015). " First, the claim to which the prejudgment interest attaches must be a claim for a liquidated sum of money wrongfully withheld and, second, the trier of fact must find, in its discretion, that equitable considerations warrant the payment of interest." Id. " The statute, therefore, applies to claims involving the wrongful detention of money after it becomes due and payable." (Emphasis in original.) Reyes v. Chetta, 143 Conn.App. 758, 770, 71 A.3d 1255 (2013).
A
Prejudgment Interest and Breach of Contract Claims
As previously noted, Green argues that prejudgment interest does not apply to breach of contract claims in which the damages sought are to compensate for losses incurred as a result of negligence. Specifically, Green argues that Thompson's breach of contract claim in count two is for damages incurred as a result of alleged negligence. Therefore, Green contends that prejudgment interest is not proper in regards to Thompsons' breach of contract claim in count two. This court agrees.
Prejudgment interest " ordinarily does not apply to contract actions in which the plaintiff is not seeking the recovery of liquidated damages or the recovery of money advanced under a contract and wrongfully withheld after a breach of that contract." (Emphasis added.) Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 349, 815 A.2d 1276 (2003). " The prejudgment interest statute does not apply to such actions because they do not advance claims based on the wrongful withholding of money, but rather seek damages to compensate for losses incurred as a result of a defendant's negligence." Id. " [S]uch damages are not considered due and payable until after a judgment in favor of the plaintiff has been rendered." Id.
This court finds that Thompson's breach of contract claim in count two sounds in negligence because the damages sought are to compensate for the losses incurred as a result of Green's alleged breach in failing to properly tighten the return line of the UST, which allegedly caused the subsequent leak and damages. Specifically, Thompson alleges in count two that Green breached its contract by " failing to properly reconnect the piping in the return line of the UST system or to otherwise secure the UST system, thereby causing the release." Therefore, the damages sought are not for the recovery of money advanced under contract and wrongfully withheld, but are for losses incurred as a result of the alleged negligence.
Accordingly, Thompson's request for prejudgment interest under General Statutes § 37-3a, as it pertains to count two is not sufficient because it is for damages incurred as a result of negligence, not a wrongful retention of money owed under the contract.
B
Prejudgment Interest and Negligence Claims
As previously noted, Green further argues that General Statutes § 37-3a does not apply to negligence claims. Thompson concedes that prejudgment interest is not awarded on a claim for negligence. Thompson contends, however, that prejudgment interest can be awarded because its request for prejudgment interest does not refer specifically to any one claim, but refers to all claims generally. This court does not agree.
" Section 37-3a provides a substantive right that applies only to certain claims . . ." Reyes v. Chetta, supra, 143 Conn.App. 770. " It does not allow prejudgment interest on claims that are not yet payable, such as awards for punitive damages . . . or on claims that do not involve the wrongful detention of money, such as personal injury claims . . ." Id. Thus, " [p]rejudgment interest is only available by statute, and there is no statutory provision for prejudgment interest on a claim for negligence." Sun Val, LLC v. State of Connecticut Commissioner of Dept. of Transportation, Superior Court, judicial district of Litchfield, Docket No. CV-14-6010907-S, (August 19, 2016, Moore, J.).
Specifically, " [t]he prejudgment interest statute does not apply when the essence of the action is the recovery of damages to compensate a plaintiff for injury, damage or costs incurred as a result of a defendant's negligence." Tang v. Bou-Fakhreddine, supra, 75 Conn.App. 349. In actions involving negligence, " [d]amages 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." Nelson v. Tradewind Aviation, LLC, supra, 155 Conn.App. 547. " Such claims do not seek to regain money detained by another." Id., 547-48.
This court finds that the entire revised complaint sounds in negligence. Specifically, in count one of the revised complaint, Thompson plainly asserts negligence, stating that Green breached its duty by " failing to properly tighten the piping on the return line or to otherwise secure the UST system." Further, as previously noted, count two asserts breach of contract, stating that Green breached its contract by " failing to properly reconnect the piping in the return line of the UST system or to otherwise secure the UST system, thereby causing the release." Last, in count three, Thompson asserts that the release of heating oil " resulted from the negligence or other actions of Green Environmental." These claims all stem from the same alleged negligent action: that Green failed to properly tighten the piping on the return line, resulting in the leak and subsequent damages. Therefore, whether one refers to a specific claim, or to all claims generally, the entire revised complaint sounds in negligence.
Accordingly, this court finds that Thompson's request for prejudgment interest under General Statutes § 37-3a as it pertains to the entire complaint is not sufficient because prejudgment interest does not apply to negligence actions. See Reyes v. Chetta, supra, 143 Conn.App. 770; see also Nelson v. Tradewind Aviation, LLC, supra, 155 Conn.App. 547; Tang v. Bou-Fakhreddine, supra, 75 Conn.App. 349.
II
General Statutes § 22a-452
The court now considers Thompson's argument that prejudgment interest is recoverable on a claim for reimbursement under General Statutes § 22a-452. As previously noted, Green counters in its reply memorandum that nowhere in General Statutes § 22a-452 did the legislature include any language concerning awards of prejudgment interest. Green argues that Thompson is limited to the remedies the legislature expressly permits in § 22a-452.
" This issue involves a question of statutory interpretation that requires plenary review." ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 545, 547, 935 A.2d 115 (2007). " When interpreting a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature." Id. " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes." Id. " If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Id.; see also Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 689, 894 A.2d 919 (2006); General Statutes § 1-2z.
" In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." ATC Partnership v. Coats North America Consolidated, Inc., supra, 284 Conn. 545. " Legislative intent is found not in what the legislature meant to say but in the meaning of what it did say ." (Emphasis added.) Gelinas v. West Hartford, 65 Conn.App. 265, 276, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). " Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended . . ." Id. " No word or phrase in a statute is to be rendered mere surplusage." (Internal quotation marks omitted.) Id.
General Statutes § 22a-452(a) provides in relevant part: " Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation." (Emphasis added.)
Plain reading of the statute reveals the following. First, General Statutes § 22a-452(a) " authorizes only those persons or entities that have taken action to remediate contaminated land to obtain reimbursement for 'the reasonable costs expended' for the remediation." (Emphasis added.) ATC Partnership v. Coats North America Consolidated, Inc., supra, 284 Conn. 546. Further, " [s]ection 22a-452(a) lists the types of entities that are entitled to reimbursement under the statute as any person, firm, corporation or municipality . . ." (Internal quotation marks omitted.) Id. Therefore, while § 22a-452 includes language awarding reasonable costs for remediation to municipalities, nowhere in the statute did the legislature include any language including awards of prejudgment interest to municipalities. See General Statutes § 22a-452.
" By contrast, General Statutes § 22a-451(a) permits the commissioner of environmental protection to recover the costs of environmental restoration from any person firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state . . ." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Refuse Gardens, 229 Conn. 455, 457, 642 A.2d 697 (1994).
Specifically, General Statutes § 22a-451(a) provides in relevant part: " Any person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state or directly or indirectly causes an emergency through the maintenance, discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes or which owns any hazardous wastes deemed by the commissioner to be a potential threat to human health or the environment and removed by the commissioner shall be liable for all costs and expenses . . ." (Emphasis added.) " The costs and expenses . . . shall include . . . the administrative cost of such action calculated at ten per cent of the actual cost plus the interest on the actual cost at a rate of ten per cent per year thirty days from the date such costs and expenses were sought from the party responsible for such pollution, contamination or emergency." (Emphasis added.) General Statutes § 22a-451(a). Moreover, " [t]he costs of recovering any legal expenses and court costs shall be calculated at five per cent of the actual costs, plus interest . . ." (Emphasis added.) General Statutes § 22a-451(a).
Therefore, the legislature specifically included language awarding interest in General Statutes § 22a-451(a) to the commissioner of environmental protection. See Connecticut Resources Recovery Authority v. Refuse Gardens, supra, 229 Conn. 457. In comparison, plain reading of General Statutes § 22a-452(a) does not include any language awarding interest. See General Statutes § 22a-452(a).
" If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature's intent." State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).
Accordingly, the clear and unambiguous language of General Statutes § 22a-452 provides for reasonable costs for remediation only, not prejudgment interest.
Further, as previously noted, a prayer for relief may " be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, supra, 244 Conn. 325. Here, looking at the plain meaning of General Statutes § 22a-452 demonstrates the absence of any language offering prejudgment interest.
Accordingly, prejudgment interest is not included as a remedy available to Thompson under the plain meaning of General Statutes § 22a-452.
CONCLUSION
For the foregoing reasons, the court grants the motion to strike.