Opinion
No. X10 UWYCV075007620S
August 12, 2009
MEMORANDUM OF' DECISION RE: KONOVER CONSTRUCTION CORPORATION'S MOTION FOR SUMMARY JUDGMENT (#293)
Introduction
Before the court is the Defendant Konover Construction Corporation's (Konover) motion for summary judgment as to all of the Plaintiff Richard Archambault's (Archambault) claims against Konover. Specifically, Konover argues that the Supreme Court has determined that Soneco/Northeastern (Soneco) and not Konover exercised control over the excavation of a trench, and that ruling is binding on this court. Therefore Konover cannot be held liable for the injuries that Archambault sustained when the trench wall collapsed.
Facts and Procedural History
The following facts are not in dispute. Konover was the general contractor for the construction of the BJ's Wholesale Club in Willimantic, Connecticut. Soneco was a subcontractor hired by Konover to excavate trenches and perform other duties. Archambault was employed by Soneco as an excavator. On October 30, 1998, Archambault was excavating a trench on the site when a portion of the trench collapsed, burying James Dowd, a co-worker of the plaintiff. Archambault attempted to free Dowd when another section of the trench collapsed burying Archambault and Sowell, another employee of Soneco. As a result, Archambault sustained serious physical injuries.
On July 16, 1999, Archambault filed suit against Konover and Soneco. The operative complaint contains two counts. The first count alleges intentional misconduct as to Soneco. The second count alleges negligence as to Konover for breach of its non-delegable duty to provide a safe work site. On February 28, 2000, Soneco filed a motion to intervene as co-plaintiff to recover from Konover any monies paid or to be paid arising from Soneco workers' compensation coverage of the plaintiff.
On July 13, 2001, Soneco moved for summary judgment asserting that no exception to the immunity provisions of the Workers' Compensation Act applied. The trial court determined that the plaintiff's claim was not within an exception to the Workers' Compensation Act and granted Soneco's motion for summary judgment as to count one. On April 16, 2002, Konover filed a motion for summary judgment asserting that it had no legal duty to the plaintiff and that there was no evidence to support the allegations of negligence against it. The trial court denied the motion on May 31, 2002 stating that "[t]here remain triable issues of fact with respect to the alleged negligence of the defendant Konover and whether it had or assumed the duty to supervise." Order Motion for Summary Judgment, #165. On March 31, 2005, Archambault withdrew its complaint against Soneco. Prior to trial Archambault moved to dismiss Soneco's intervening complaint. The court granted the motion. Archambault also filed a motion in limine seeking to preclude Konover "from introducing any testimony and/or evidence related to any claims of negligence on the part of Soneco/Northeastern." Plaintiff Richard Archambault's Motion in Limine Re: Negligence of Soneco/Northeastern, Inc., #208. This motion was granted by the court. A jury trial commenced in April 2005. "At the conclusion of the trial, the court instructed the jury, over Konover's objection, that Konover, as the general contractor, had a nondelegable duty to ensure a safe work site . . ." Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 52 (2008). On May 5, 2005 the jury returned a verdict for the plaintiff finding that Konover was 100 per cent at fault. On January 17, 2006, the court denied motions to: set aside the verdict and for a new trial on all issues; for a new trial on damages alone; and for remittitur. Judgment was entered on that same date.
Konover appealed. On appeal, "Konover claim[ed] that the trial court improperly (1) precluded it from introducing evidence that Soneco's negligent conduct was the sole proximate cause of the plaintiff's injuries, (2) declined its request to instruct the jury that Soneco's conduct was a superseding cause of the plaintiff's injuries, and (3) instructed the jury that Konover owed the plaintiff a nondelegable duty to keep the construction site safe. Konover also claim[ed] that the plaintiff's counsel exploited the trial court's rulings and improperly appealed to the jurors' passions and prejudices during closing argument." Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 23-24.
The Supreme Court reviewed the claims in the order in which they were presented and released its decision on May 20, 2008. The Supreme Court agreed with Konover on the first claim, adopting "the principle that a defendant is entitled to assert, under a general denial, that the negligence of an employer who is not a party to the action is the sole proximate cause of the plaintiff's injuries." Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 37. On the basis of this evidentiary error the Court reversed the judgment and remanded the case for a new trial. Nonetheless the Court chose to consider the instructional errors also claimed, namely, "whether the trial court properly declined to instruct the jury on superseding cause and whether it properly instructed the jury that Konover had a nondelegable duty to ensure a safe work site because both issues are likely to arise in the new trial." (Footnote omitted.) Id., 41.
The Court agreed with Archambault that the doctrine of superseding cause was inapplicable to this case and therefore the trial court was correct in declining to instruct the jury on superseding cause. The Court did agree with Konover that the jury instruction that it had a non-delegable duty to Archambault to ensure a safe work site was improper. It is the Court's ruling on this latter issue that forms the basis for Konover's motion for summary judgment.
Discussion
"Practice Book [ § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation and internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 354-55 (2009).
Konover contends that the Supreme Court's ruling is binding on this court entitling it to summary judgment. The Supreme Court found that Soneco was in exclusive control of the excavation and that Konover did not have a non-delegable duty to the plaintiff to ensure a safe construction site. Specifically, Konover cites the following language of the Court's decision: "[w]hen the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury . . . We conclude that, because a reasonable person could reach but one conclusion as to who exercised control over excavation of the trenches, the question was one for the court. We also conclude that the entity in control was Soneco, rather than Konover, and, therefore, the jury instructions were improper." (Citation and internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 54.
Archambault advances four arguments in opposition to summary judgment. First, Archambault argues that the language in the decision that Konover relies upon is dictum and unpersuasive. Second, Archambault argues that the Supreme Court ordered a new trial and granting this motion will allow Konover to bypass that ruling. Third, Archambault argues that the motion for summary judgment on this issue was properly decided when the trial court denied Konover's previous motion for summary judgment. Lastly, Archambault claims that there remains a question of fact as to the actual control exercised by Konover.
As to the first argument, the court must determine whether the Supreme Court's ruling that the entity in control was Soneco, and that Konover did not have a non-delegable duty to Archambault, is binding on this court or is dictum that was unnecessary and nonessential to the Court's holding. "It is well established that statements in prior cases that constitute dicta do not act as binding precedent." Remax Right Choice v. Aryeh, 100 Conn.App. 373 (2007). "Dictum is generally defined as [a]n expression in an opinion which is not necessary to support the decision reached by the court . . . A statement in an opinion with respect to a matter which is not an issue necessary for decision. Our Supreme Court has instructed that dicta have no precedential value." (Citations and internal quotation marks omitted.) State v. Torres, 85 Conn.App. 303, 320 (2004).
Both parties cite Middletown Commercial Associates Limited Partnership v. Middletown, 53 Conn.App. 432 (1999) as supporting their positions. There the Court stated: "[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court . . . This principle, however, applies only to those matters essential to the appellate court's determination [and] not to mere dictum . . . Dictum includes those discussions that are merely passing commentary; . . . those that go beyond the facts at issue; . . . and those that are unnecessary to the holding in the case . . . As we have previously recognized, however, it is not dictum when a court of [appeal] intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy . . . Rather, such action constitutes an act of the court which it will thereafter recognize as a binding decision." (Citations and internal quotation marks omitted.) Id., 435.
Archambault emphasizes that the Court's ruling on the issue of whether or not Konover had a non-delegable duty is not essential to the Court's determination that the trial court improperly excluded evidence and argument as to Soneco's negligence. Konover argues that the Court intentionally addressed the issue of control and that the Court's discussion goes well beyond passing commentary. This court agrees. The Supreme Court first determined that there was error in the exclusion of evidence regarding Soneco's breach of its duties or negligent conduct necessitating a new trial. The Court noted that the trial court had allowed Konover to introduce evidence of "Soneco's responsibilities under its contract with Konover, including Soneco's duty to supervise the excavation work, to ensure compliance with OSHA safety regulations and to provide mechanical safeguards and protective devices." Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 27. It then went on to consider the instructional errors claimed such that the Court could provide this court with guidance regarding the propriety of similar instructions on a retrial. As noted above, after an extensive discussion of the evidence in the record regarding Soneco's duties under the subcontract, Konover's construction safety manual, and the testimony of Konover's safety director and project superintendent, the Court concluded that the evidence was conclusive, such that the decision was one for the court and not the jury, that Soneco and not Konover had control over the excavation of the trenches. In addition, Archambault petitioned the Supreme Court for reconsideration by the panel en banc specifically citing the Court's language finding Soneco to be the party in control, and that request was denied.
Archambault also argues that "[w]hen an appellate court has remanded a case for a new trial, however, the law of the case doctrine only applies to those matters that have been ruled upon by the appellate court. Issues not before the appellate court or conclusively decided in the prior appeal do not become the law of the case. 5 Am.Jur.2d Appellate Review § 608." Memorandum in Support of Plaintiff's Objection to the Defendant's Motion for Summary Judgment, p. 8 Archambault's reliance on this principle is misplaced as the issue of non-delegable duty was squarely before the Court. Konover raised before the Supreme Court the claim that the trial court had improperly instructed the jury that it had a non-delegable duty to the plaintiff. After an extensive discussion of the facts established by the evidence, the court concluded that Konover did not have a non-delegable duty as a matter of law. This conclusion is not mere dictum but precedent binding on this court.
As to his second argument, Archambault points to Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563 (2008), a similar case where the jury returned a verdict for the plaintiff, an injured employee of a subcontractor, on his claims against a general contractor. Although factually similar to this case, the Supreme Court remanded Pelletier to the trial court with instructions to render judgment for the defendant. Archambault argues that in Pelletier the Court ordered that judgment be entered because all of the evidence regarding the subcontractor's control over the jobsite had been allowed where it had been precluded here. The plaintiff attempts to base this argument on the fact that Konover was not allowed to present evidence as to Soneco's negligence yet Archambault fails to explain how this would lend any support to his claims against Konover. In any event, a review of the decision in Pelletier reveals the rationale for the remedy ordered by the Supreme Court there. In Pelletier the trial court had denied the general contractor, Sordoni's, motion for summary judgment and had determined as a matter of law, prior to trial on a motion for summary judgment, that Sordoni had a duty under the building code to inspect the steel welds, the failure of which allegedly caused the plaintiff's injuries. The case was then tried to a jury and the court instructed the jury regarding negligence for failure to comply with the building code. The Supreme Court determined that it was appropriate, in that case, to review the trial court's decision on the motion for summary judgment in the context of the appeal from a judgment after trial since the claim had been properly preserved. The Court noted that "absent exceptional circumstances, a denial of a motion for summary judgment is not appealable where a full trial on the merits produces a verdict against the moving party . . . The basis of this policy is that even if the motion is improperly denied, the error is not reversible; the result has merged into the subsequent decision on the merits. (Citation and internal quotation marks omitted.) Id., 576-77. The Court concluded that Sordoni did not have a duty under the building code to inspect the welds. The plaintiff, on appeal, had also claimed that the trial court erred in failing to charge the jury on his common-law negligence claims against Sordoni. Since the court concluded that the plaintiff's claims were without merit, the Court ordered that judgment for the defendant be entered, the result which would have been reached if the trial court had properly granted Sordoni's motion for summary judgment.
Here the procedural posture of the case before the Supreme Court was not the same as in Pelletier. The issues presented on appeal in Archambault dealt with evidentiary and instructional errors alleged to have occurred during the trial. In Pelletier, the Court was faced with the propriety of the trial court's decision on a pretrial dispositive motion where no further evidence on the question was presented at trial. In determining that the trial court's decision on that motion was in error, the court properly remanded for entry of judgment. Here the remedy available to the Supreme Court, after determining the claims raised, which solely involved alleged errors by the court during the trial, was to order a new trial. The Court's decision, however, does not preclude this court from considering the Court's holding regarding the issue of Konover's duty to the Plaintiff in the context of the present motion for summary judgment.
As to his third argument, Archambault claims that the motion for summary judgment on this issue was properly decided when the trial court denied Konover's previous motion for summary judgment. in denying the motion, the court indicated that triable issues existed regarding the claims raised in the motion. A trial has been had on these issues, therefore this is no longer a valid argument.
Lastly, Archambault claims that there remains a question of fact as to the actual control exercised by Konover. However the determination by the Supreme Court was made after a trial and based on the evidence presented. There was no claim on appeal that Archambault was precluded from offering any evidence as to this issue at trial. In fact, in his Motion for Reconsideration by Panel or En Banc, dated May 29, 2008, to the Supreme Court, Archambault argued that the Supreme Court had substituted its judgment for that of the jury on the issue of Konover's control of the ditch. In support of his claim, Archambault cited the trial testimony of several witnesses which he claimed the Court ignored.
It is clear that there has been a full trial of the factual issues in this case as regard the plaintiff's claims against Konover and a determination by the Supreme Court as to the conclusion to be reached from the facts established at trial. Any evidence of Soneco's negligence, which the Court found was improperly excluded, could not affect this result. No questions of fact remain unresolved as to the plaintiff's claims against Konover and therefore summary judgment is appropriate.
Conclusion
The Supreme Court's opinion sets forth the law of this case, binding on the parties and this court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222 (1977). "[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court." (Citation and internal quotation marks omitted.) Detar v. Coast Venture XXVX, Inc., 91 Conn.App. 263, 267 (2005). For all of the forgoing reasons, Konover's motion for summary judgment is granted.