VONA v. LERNER

Full title: CARLO VONA, ET AL VS. EDWARD N. LERNER, ET AL

Court: Connecticut Superior Court, Judicial District of Fairfield at Bridgeport

Date published: Jul 16, 1998

1998 Ct. Sup. 9493 (Conn. Super. Ct. 1998)

22 CLR 437

Opinion

No. CV94 31 42 24 S

July 16, 1998

MEMORANDUM RE: MOTION TO STRIKE #162

NADEAU, J.

FACTS

Plaintiff individuals filed a six-count revised complaint against the defendants, a law firm and a lawyer once part of said firm, alleging that they are liable for breach of fiduciary duty and breach of contract in connection with a real estate transaction.

The law firm, as a third party plaintiff, filed a two-count third-party complaint against an accounting firm alleging that they failed to comply with their professional responsibilities by disclosing the plaintiffs' financial information to a certain bank without the plaintiffs' consent. The law firm alleges that if the accounting firm had disclosed to the plaintiffs that it had relayed financial information to the bank the plaintiffs would not have completed the real estate transaction, for such disclosure would have brought the plaintiffs to a fuller understanding of the proposition and ultimate transaction which they would have rejected. The law firm claims it is "entitled to contribution/apportionment if a judgment is rendered in favor of the main Plaintiffs in this action."

On April 29, 1998, the accounting firm filed a motion to strike the law firm's third party complaint on the ground that it alleges a purely commercial loss, which they assert is not recoverable in a third party action for contribution. The law firm filed an objection to the motion to strike, arguing that apportionment among joint tortfeasors should be allowed as a matter of common law in negligence actions involving commercial losses. The matter was heard by the court on June 22, 1998.

DISCUSSION CT Page 9494

"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. . . . [The court] must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71 (1998).

In examining the historical meaning of the phrase "damage to property," the Supreme Court has held that "the reference in § 52-572h(b) to `damage to property' does not include purely commercial losses, unaccompanied by damages to or loss of the use of some tangible property." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).¹ This did not conclude the court's inquiry, however. In its summation, the court held: "Where possible, courts should, as a matter of common law adjudication, assure that the body of the law — both common and statutory — remains coherent and consistent. . . . We conclude, therefore, as a matter of common law, that the policy of the comparative negligence statute, § 52-572h, applies to negligence actions where only commercial losses are sustained." (Citation omitted; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 586.²

1 In Conco Medical Co. v. Zimmer Zimmer, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 332956 (February 6, 1997) (Thim, J.) (18 CONN. L. RPTR. 687, 688), the same rule of statutory construction was applied to the apportionment segment of the statute, subsection (c) of § 52-572h, which also refers to "damage to property." Accordingly, the Supreme Court's examination of the phrase "damage to property" in § 52-572h(b) would be applicable to the same phrase as used in the apportionment portion of the statute, § 52-572h(c), relevant here.

2 Faced with whether the comparative negligence statute was applicable to purely commercial losses despite the statute's use of the phrase "damage to property," the court held that it was."It would be consistent with that goal for the doctrine of comparative negligence, which by statute applies to actions based on negligence resulting in damage to person or property, also to apply to the tort of negligent misrepresentation resulting in commercial loss. Furthermore, it would undermine the legislative purpose of § 52-572h(b) if we were to require a plaintiff to be free from contributory negligence as a prerequisite to recovery under a theory of negligent misrepresentation merely because the damages sought were commercial losses rather than property damage. The doctrine of contributory negligence should not, therefore, consistent with our entire body of law, both statutory and common, act and an absolute bar to recovery for plaintiffs seeking recovery for negligent misrepresentation." Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 586.

The law firm alleges that the accountant was negligent in breaching his professional responsibilities as a certified public accountant, and that this breach caused the plaintiffs' loss. This court declines to accept the contention that the phrase "damage to property" does not encompass a purely commercial loss in the context of the apportionment portion of the statute, in light of the Supreme Court's holding that as a matter of common law purely commercial losses are recoverable under the comparative negligence portion of the statute, which utilizes the same phrase.³ Accordingly, the accounting firm's motion to strike the law firm's third party apportionment complaint is denied.

3 The common law issue was not raised or addressed in the Conco case.

NADEAU, JUDGE