Summary
In Ward, the defendants exceeded the scope of work in the parties' roofing contract when they dismantled the plaintiff's home and then demanded additional money to repair the damage they caused.
Summary of this case from Waterbury Generation LLC v. Waterbury Land Partners, LLCOpinion
No. 558800
April 3, 2003
MEMORANDUM OF DECISION ON DEFENDANT MILHOMME'S MOTION TO STRIKE
The motion to strike filed by the defendant Milhomme is, in part, directed against the second and third counts, which the plaintiff agrees may be stricken. The court will address the motion only as it relates to the fourth count (alleged violation of Connecticut Unfair Practices Act) and the seventh count (intentional infliction of emotional distress). The standards to be applied to a motion to strike are well known — every reasonable inference must be given to a complaint that is subject to such a motion, Amodio v. Cunningham, 182 Conn. 80 (1980).
The factual basis for count four and count seven is the same and is set forth in the first nineteen paragraphs of each count. It can be inferred from these allegations that the plaintiff is a 67-year-old woman who lived in a home in Old Lyme. In October 2000, the plaintiff entered into a contract with a Will Benoit to replace roofing shingles on Ward's home. Benoit was a roofing contractor. (Paragraphs 2, 4.) Benoit hired Milhomme to perform work on the home as a subcontractor under the agreement Benoit had with Ward. (Paragraph 5.)
The following is then alleged:
7. Wili J. Benoit and those he had hired, including Larry J. Milhomme, exceeded the terms of the written agreement by beginning to remove the entire roof, its structural supports including the rafters, ceilings, walls and other interior fixtures of the home.
8. On or about Sunday, October 29, 2000, Larry J. Milhomme approached the plaintiff and on behalf of Wili J. Benoit demanded additional money from the plaintiff, representing to the plaintiff that if she paid the additional money, her home would be restored to habitable condition.
9. The plaintiff was in a state of distress from having seen her home dismantled without her written consent.
10. On or about Monday, October 30, 2000, the plaintiff tendered a check for $9,000 made payable to "W.J. Benoit" to Larry J. Milhomme and he accepted same.
11. On or about Monday, October 30, 2000, the plaintiff and a member of her family, Tom Bump, who was acting at the plaintiff's behest, demanded that Larry J. Milhomme and all others stop work on the property.
12. The apportionment defendant Larry J. Milhomme agreed to stop work on the property in accordance with the plaintiff's instructions.
13. On or about Thursday, November 2, 2000, Larry J. Milhomme was present at the premises of 203 Boston Post Road, Old Lyme, Connecticut.
14. On that date and at that place, Larry J. Milhomme informed the plaintiff that he was present at the premises of 203 Boston Post Road for the purposes of clean up only.
15. Under the belief that he was present at her home for the purpose of clean up only, the plaintiff left the premises.
16. After the plaintiff left the premises, the apportionment defendant Larry J. Milhomme, or those acting at his direction, at the direction of Wili J. Benoit, or acting at the direction of both, dismantled the home by removing the roof, the roof supports, the interior walls, sheetrock covering the interior of the walls and other fixtures.
17. The plaintiff returned to the premises on the following morning, November 3, 2000, and to her great distress, anxiety and shock, found that her home had been destroyed in derogation of her instructions and contrary to the representations made by the apportionment defendant Larry J. Milhomme.
A.
Connecticut Unfair Trade Practices Claim
(1)
As a preliminary matter, the defendant notes that the plaintiff only contracted with Benoit not with him; Milhomme was a "hired subcontractor" of Benoit so that Milhomme was not dealing with the plaintiff "in the conduct of any trade or commerce" as CUTPA defines that concept.
The defendant, at least in the court's opinion, gives a reading to CUTPA that is too narrow in light of its ameliorative purpose. CUTPA provides that "no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," § 42-110b (a) and goes on to define "trade" and "commerce" in § 42-110a (4) as . . ."the advertising, the sale, or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed and any other article, commodity or thing of value in this state."
In interpreting the foregoing language, the court in Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 723 (1993), said: "In 1973, when CUTPA was first enacted, the predecessor to § 42-110g contained language that limited standing (under the act) to `any person who purchases or leases goods or services . . .' Public Acts 1973, No. 73-615, 7. In 1979, however, the legislature amended the act, deleting all references to `purchasers, sellers, lessors or lessees,' Public Act 1979, No. 79-210, 1."
What this means is that the requirements of common-law privity in CUTPA litigation have been relaxed. Therefore, Jackson implies that a CUTPA action can lie by the homeowner against a defendant subcontractor even though no contractual relationship existed between them. It is true that in Jackson, the court rejected a CUTPA claim by a plaintiff against the lawyer who represented an adverse party in prior litigation but, in doing so, the court said: "Although privity, in the traditional contractual sense of an exchange of consideration between parties, may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or her." Id. at page 725.
It would be difficult to argue, given the allegations of this case, that this subcontractor, the defendant Milhomme, did not have a consumer relationship with the plaintiff. He worked on her house, purportedly in her interest, under the terms of a contract negotiated by the general contractor. Accepting the allegations of the complaint, Milhomme apparently acting on behalf of Benoit then approached the plaintiff demanding a check for $9,000 to remedy the fact that the work done in part by Milhomme made the house no longer habitable. One can infer that Milhomme was to participate in the "remedial" work. Even after that, according to the complaint, there was a continuing offering of services by Milhomme to the plaintiff — he came on the property on the representation he would be doing clean up work; that itself would establish a "consumer relationship" especially when considered in light of the previous work done by the subcontractor under the agreement reached between the general contractor, Benoit, and the plaintiff.
To allow CUTPA litigation to proceed against a subcontractor in a case like this, could hardly be said to open the floodgates of litigation — the substantive CUTPA violation would still have to be proved which might be a difficult task in suits against subcontractors as the court will discuss.
In any event, the court concludes the plaintiff has standing to sue this defendant under CUTPA on the basis that there was a "consumer relationship" between them.
(2)
Do the allegations of the complaint set forth a legally sufficient claim against Milhomme under CUTPA? The court agrees with the defendant that no derivative cause of action under the Home Improvement Act, §§ 20-418 et seq. or the Home Solicitation Act, §§ 42-134a et seq. under CUTPA should be allowed against the subcontractor Milhomme. The Home Improvement Act does not apply to subcontractors. Meaderis v. Higgins, 249 Conn. 155, 166 (1999). As the defendant also notes, the Home Solicitation Act imposes certain obligations on sellers of goods or services to homeowners and a "seller" is defined as "any person, partnership, corporation, limited liability company or association engaged in home solicitation sales of consumer goods or services."
As the defendant points out, the act intended to impose obligations only on "those directly involved with buyers." There is no allegation that the defendant was anything more than a subcontractor chosen by Benoit to perform on a contract Benoit bargained for with the plaintiff.
But the fact that a purported violation of these two statutes cannot be relied on for a CUTPA claim does not bar such a claim. Under the so-called "cigarette rule" a CUTPA violation can be found not only where public policy established by statute has been offended but also where the practice forming the basis of the claim "is immoral, unethical, oppressive or unscrupulous." A court can also consider whether the practice "causes substantial injury to consumers." Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695 (2002). The court made clear that to establish a CUTPA violation all three criteria of the "cigarette rule" need not be met, Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105 (1992). The defendant argues that "the facts as alleged by the plaintiff simply do not rise to the level of immoral, unethical, oppressive or unscrupulous conduct that justifies a claim under CUTPA and only allege CUTPA violations in the context of the (Home Improvement Act). But the allegations of the complaint go beyond claimed violations of the Home Improvement Act. It is alleged in paragraph 20 that the defendant rendered the plaintiff's home uninhabitable by dismantling it in violation of the contract authorizing work on her home and demanded additional funds to render the home habitable again; this allegation goes beyond the ambit of the act.
In analyzing the problem before the court, it must be kept in mind that this is an action against a subcontractor who allegedly was acting pursuant to the terms of a contract the general contractor had with the plaintiff homeowner. The burdens and risks inherent in contract formation and in organizing projects requiring numerous subcontractors would be intolerably increased if every complaint about failure to comply with the requirements of the underlying contract could turn into a CUTPA violation against subcontractors providing for windfalls in terms of recovery above and beyond ordinary contract damages. But if in the ordinary contract case, the same facts that establish a breach thereof can also establish a CUTPA violation, Lester v. Resort Campgrounds, Int'l., Inc., 27 Conn. App. 59, 71 (1992), and a CUTPA claim can be established where there is a breach if there are substantially aggravating circumstances, cf. CNF Constructors, Inc. v. Culligan Water Conditioning Co., 8 CSCR 1057 (1993), it should also follow that a CUTPA claim should lie against a subcontractor in similarly aggravating circumstances — or to put it more exactly, situations where the circumstances are aggravating and permitting the CUTPA action will not turn every claim of failure to comply with contract requirements by a subcontractor into a CUTPA violation. If the complaint's allegations are given every favorable inference, Milhomme at Benoit's request was trying to force the plaintiff to pay substantially more than the contract price to correct damages to her home caused by their exceeding the scope of work called for in the contract, thereby making her home uninhabitable. Presumably, Milhomme would benefit by this tactic since his continued involvement with the job is shown by his later showing up on the property purportedly to do clean up work. The discussion in The Connecticut Unfair Trade Practices Act, Langer, Morgan, Belt, discusses several cases presenting situations similar to the one here where unfair trade practice actions were allowed here and in Massachusetts because the trade practice went beyond "mere breach." These were cases where the action was brought against the contracting party, not a subcontractor, but the policy considerations seem similar. In Bridgeport Restoration v. A. Petrucci Construction, 211 Conn. 230 (1989), the trial court found a breach of contract and a CUTPA violation. The defendant was awarded a building contract and indicated the plaintiff would do subcontracting work. An officer of the defendant promised the plaintiff that if it got the contract the plaintiff would get the subcontract. After the contract was awarded to the defendant, it sought further adjustments in the subcontract that the plaintiff refused; after that, the defendant gave the work to another company. As Langer notes, Bridgeport Restoration could be viewed as involving "more than a simple repudiation in that the defendant used the threat of repudiation in an effort to force renegotiation of the plaintiff's subcontract," § 4.3 at p. 115, also see Lester v. Resort Camplands, Int'l., Inc., 27 Conn. App. 59, 71-72 (1992). The language of Lester is broad, but it can be limited to its facts. The defendants in effect tried to get its members to pay additional fees beyond what was provided for in the contract to be able to fully use the campground. In Anthony's Pier Four, Inc. v. HBC Associates, 583 N.E.2d 806 (Mass., 1991), the court held that the trial court erred in not considering the applicability of Massachusetts unfair trade practices law. The parties had a contract to develop a pier area and the trial court found the defendant Anthony's withheld approval of development plans to secure more money than provided for in the contract. The court held that: "We have said that conduct `in disregard of known contractual arrangements' and intended to secure benefits for the breaching party constitutes an unfair act or practice for c. 93A purposes." Id. p. 821 (reference to that state's unfair trade practice act). Applying Massachusetts law, the First Circuit Court of Appeals agreed with the trial court's conclusion that that state's unfair trade practices law was violated saying that the court was entitled to believe the defendants had withheld payments which they legally owed "as a form of extortion — to force Pepsi to do what otherwise it could not be legally required to do," Pepsi-Cola Metropolitan Bottling Co. v. Checkers, Inc. et al, 754 F.2d 10, 23-24 (Cal. 1, 1985); cf Atkinson v. Rosenthal, 598 N.E.2d 666, 670 (Mass.App.Ct., 1992).
In allowing unfair trade practice claims, these cases do not allow such actions for "mere breach" of the contract but single out for CUTPA treatment attempts by the breaching party to use the very breach to extort more money or more favorable terms than agreed to in the original contract. Allowing a CUTPA claim in such circumstances will not place a too heavy burden on contract formation but rather encourage integrity in contractual relations.
This reasoning would apply to the allegations against the subcontractor here which the court must accept as true for the purposes of this motion. In other words, what is alleged here is that the subcontractor Milhomme, in making demands for added monies on the general contractor's behalf, in effect aided and abetted the latter's attempt to profit from his own breach — actions which will inure to the benefit of the sub since if the attempt is successful, which it was here, the job will go on despite the alleged breach. The court will not strike the CUTPA claim.
Langer comments on one Superior Court case, Beebe v. Kasmun Builders (No. CV90-46122S, 1993 Conn. Super., Lexis 404 (1993)), which allowed a CUTPA claim for an "egregious breach." Defective work on a newly built home was involved which went beyond just minor problems — major structure defects were concerned. A CUTPA violation in addition to an ordinary breach were found because the breaches were found to be "egregious and unconscionable." In this case, the allegations are that the plaintiff's house was rendered uninhabitable and in effect destroyed by the defendants as a result of their failure to comply with contract terms. The court is not relying on this reasoning, however, since it has a slippery slope quality — that is, CUTPA actions for mere breach of contract will not be allowed except if a really, really bad breach is involved as determined by individual Superior Court judges.
B.
Intentional Infliction of Emotional Distress Claim
Our court recognized the tort of intentional infliction of emotional distress in Petyan v. Ellis, 200 Conn. 243, 253 (1986). In Appleton v. Board of Education, 254 Conn. 205, 210 (2000), the court repeated the four factors that must be alleged and proven to establish this theory of liability "(1) that the actor intended to inflict emotional distress or that he (she) knew or should have known that emotional distress was the likely result of his (her) conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe."
The plaintiff in the seventh count tracks the required four elements. The defendant, however, argues that based on the factual allegations of the complaint, the second element — extreme and outrageous conduct — cannot be met. The Appleton court followed Section 46 of the Restatement (Second) Torts, which says this element is established where the facts alleged would arouse the resentment of an average member of the community against the person who acted in this way and "lead him (or her) to exclaim `outrageous.'" In other words, conduct that is merely insulting or results in hurt feeling will not suffice. The conduct must be beyond all bounds of decency and be "regarded as atrocious and utterly intolerable in a civilized community," 254 Conn. at pp. 210-211. Courts have been careful to police this tort at the motion to strike level and at the appellate level. See, for example, Premier Development, Inc. v. Thompson et al. ( 26 Conn.L.Rptr. 671 (2000)); Carrol v. Allstate Insurance Co., 262 Conn. 433, 443 et seq. (2003), since the courts would be overwhelmed if slight hurts inflicted in the rough and tumble of social interaction could provide a basis for this cause of action. In fact, the Restatements seem to share this view where in comment k to § 46 it says:
It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is necessarily so. Where reasonable men (and women) may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
Applying the foregoing standards and given the allegations of the complaint could reasonable people differ as to whether the conduct was extreme and outrageous or can the court say as a matter of law that the allegations, which the court must accept as true for the purposes of this motion, do not meet that standard?
The cases cited by the defendant are not convincing given the allegations of this complaint. Hixon v. Evers, 29 Conn.L.Rptr. 254 (2001), held that extreme and outrageous conduct was not shown where the defendants entered the plaintiff's property and intentionally cut down trees, shrubbery and plants; cf. DeLeo v. Reed, No. 172435 (2000, Stamford J.D., Hickey, J.), where defendants cut down fence and trees on property plaintiff claimed to have acquired by adverse possession. In Premier Development, Inc. v. Thompson, #089331, (Middletown J.D., Arena, J. 2000), the defendant misrepresented its ability to construct the plaintiff's home.
Under the allegations of this complaint, the court can infer that the plaintiff was actually living in this house when she contracted to have her roof repaired. The defendants then exceeded the terms of the agreement to merely replace roof shingles by "beginning to remove the entire roof, its structural supports including the rafters, ceilings, walls and other interior fixtures of the home." The house was rendered uninhabitable and Milhomme, at Benoit's request, then "demanded additional money" presumably beyond the contract price to make the home of this 67-year-old lady livable again. She paid and a few days later Milhomme appears on the property saying, according to the complaint, he was there just to do clean-up work. The plaintiff left the house and Milhomme or others acting at his or Benoit's direction then proceeded to dismantle the home — the roof was allegedly removed, along with the roof supports, the interior walls, sheetrock covering these walls and other fixtures. The plaintiff claims that as a result of these actions she "found that her home had been destroyed." This goes beyond destroying shrubs, trees and a fence or ability to construct a home for people to live in at a future date. The claim here is that Milhomme and others, in effect, destroyed the plaintiff's home and at one point after making her home uninhabitable demanded a substantial sum beyond the contract price for just replacing roof shingles to make the house habitable again. Suffice it to say that reasonable people could differ in their opinion as to whether this alleged conduct was extreme or outrageous so that in the first instance this court cannot strike this count as a matter of law.
Defense counsel also argues that there is nothing to indicate the defendant engaged in any act with the intent to cause injury citing Bell v. Board of Education, 55 Conn. App. 400, 109 (1999), but Bell did not discuss the first element needed to establish this tort regarding the defendant's state of mind. Also, the first element must be examined carefully. What it says is "that the action intended to inflict emotional distress or that he (she) knew or should have known that emotional distress was the likely result of his (her) conduct." (Emphasis added.)
In conclusion, the court will not grant the motion to strike as to the fourth and seventh counts, but will grant the motion as to the second and third counts of the complaint.
Corradino, J.