Opinion
FBTCV166056991S
01-18-2019
CAFÉ RUCHE, LLC v. TOWN OF WILTON et al.
UNPUBLISHED OPINION
OPINION
Anthony D. Truglia, Jr., J.
Trial was held in the above-captioned action on June 26, June 29 and July 26, 2018. All parties appeared and were heard.
Findings
The parties submitted a joint stipulation of facts prior to trial. After hearing the evidence presented by both parties at trial, including the testimony of the witnesses, the court finds the following facts:
(1) The plaintiff, Café Ruche, LLC, is a Connecticut limited liability company. At all times relevant to this case, Barbara Chopin was the plaintiff’s managing member.
(2) The Town of Wilton (the town) is a Connecticut municipal corporation with an address of 238 Danbury Road, Wilton, Connecticut.
(3) Defendant Wilton Center Development, LLC (WCD), is a Massachusetts limited liability company registered to do business in Connecticut, with its principal office located c/o Boylston Properties Co., Inc., 800 Boylston Street, Suite 1300, Boston, Massachusetts. WCD was formerly known as Wilton Center Development Limited Partnership from October 31, 1983 to February 16, 2006, when it merged into WCD (Defendants’ Ex. I).
(4) Paragon Realty Group, LLC, is a Connecticut limited liability company with a principal address of 276 Post Road West, Suite 201, Westport, Connecticut.
(5) The town is the owner of a 3.41-acre parcel of land located at 101 Ridgefield Road, Wilton, Connecticut (the property). The property contains two buildings, the School Building (the premises) and the Hubbard Building.
(6) The property was used as a school from 1928 to 1971. From 1971 to 1983, the property was used as office space for the Town of Wilton Board of Education.
(7) The property contained a 2010-gallon underground fuel storage tank (UST). The precise date of when the UST was placed into service is not known, although it is likely that it was installed when the buildings on the site were constructed, in the 1920s.
(8) On or about September 26, 1983, the town, as lessor, entered into a lease with the Faraca Companies, as lessee, for the property (the Master Lease) (Plaintiff’s Ex. 1 and Defendants’ Ex. E).
(9) Faraca, on or before November 1, 1983, assigned all of its rights pursuant to the Master Lease to WCD.
(10) The Master Lease contains provisions that allow WCD to sublet specific rental spaces on the property to tenants, under which WCD acts as the landlord and the town acts as the master landlord.
(11) In March 1991, WCD and/or its agents retained Atlantic Environmental Services, Inc. (AES) to perform an Environmental Site Assessment of the property. AES performed a site assessment of the property and issued a report dated March 12, 1991 (Plaintiff’s Ex. 4 & Defendants’ Ex. V).
(12) The AES investigation and report was followed in April 1991 by a Limited Subsurface Investigation of the property, performed by Langan Environmental Services, Inc.
(13) The AES investigation and the Langan investigation (the 1991 investigations) were undertaken in connection with WCD’s request for financing of the property (Plaintiff’s Ex. 14).
(14) Langan issued two reports of its Limited Subsurface Investigation, the first a letter dated April 10, 1991 (Plaintiff’s Ex. 5), and a second dated June 4, 1991 (Plaintiff’s Ex. 15 & Defendants’ Ex. Y). The 1991 investigations discovered total petroleum hydrocarbon contamination in an area of the property where it was believed a UST had formerly been located. Langan stated in its April 10, 1991 letter that it "has determined the existence of a petroleum hydrocarbon contaminant zone assumed to have emanated from the former tank location" and that "[t]he discharge does not have to be reported to the [Connecticut Department of Environmental Protection] as it represents a residual stain and not an active spill." In the 1991 investigations, Langan also reported that "the tank appears to have been already removed." Langan concluded that "all environmental issues have been addressed and we perceive no environmental liability stemming from the previously existing underground oil storage tank ..."
(15) Following the conclusion of the 1991 investigations, WCD and WCD’s lender were satisfied that there was no UST on the property, or that whatever UST previously located on the property had been removed, and that no further investigations as to adverse environmental conditions on the property were necessary (Plaintiff’s Exhibits 16 & 17). Both WCD and the town reasonably believed, as of 1991, that there was no UST on the property and, by extension, near the premises (Plaintiff’s Ex. 16 & Defendants’ Exhibits X, Z & AA). The town and WCD acted reasonably in relying on the findings and recommendations of Langan that no further action with regard to possible adverse environmental conditions on the property was necessary after the 1991 investigations.
(16) In or about April 2000, as part of a later refinancing transaction, WCD and/or its agents retained IES of Connecticut to perform a Phase I Environmental Site Assessment of the property, after which IES issued a report dated April 28, 2000 (Plaintiff’s Ex. 33 & Defendants’ Ex. B). The IES report found no evidence "which would indicate that a release of petroleum products or hazardous substances has occurred at the subject site" and recommended that no further action be taken with regard to on-site releases of petroleum products and hazardous substances, (17) In or about November 2009, as part of another refinancing transaction, WCD and/or its agents retained EFI Global, Inc., to perform a Phase I Environmental Site Assessment of the property, after which EFI issued a report dated November 10, 2009 (Plaintiff’s Ex. 34 & Defendants’ Ex. C). The EFI investigation and report was followed, in November and December 2009, by a Phase II Environmental Site Assessment, Limited Subsurface Investigation, performed by GeoQuest, Inc. GeoQuest issued a report of its findings and conclusions dated December 4, 2009 (Plaintiff’s Ex. 35 & Defendants’ Ex. D). Soil samples were taken and groundwater was tested at 15 to 17 feet below grade at the site where the UST was believed to be located. GeoQuest found that there were "[n]o [extractable total petroleum hydrocarbons] or [volatile organic compounds] ... identified in the soil or groundwater samples collected from the area of the former fuel oil UST." GeoQuest concluded after completion of its investigation that "it does not appear that historical dry cleaning operations or the presence or use of a UST has had an environmental impact on the subject property." GeoQuest recommended that "[n]o further assessment or remediation is warranted at this site at this time."
(18) The town and WCD acted reasonably in relying on GeoQuest’s December 2009 conclusions and recommendations.
(19) On or about July 24, 2014, WCD entered into a lease agreement with the plaintiff (the Lease). The Lease was for 1, 841 square feet of space in the premises (Plaintiff’s Ex. 2 and Defendants’ Ex. J). The plaintiff intended to use the space as a combination yoga studio and cafe. On or about October 1, 2014, the plaintiff took possession of the premises and began construction (Defendants’ Ex. O).
The Lease refers to the Wilton Center Development Limited Partnership.
(20) The premises were delivered to the plaintiff "as an open and clean area with all non-load bearing walls, floor coverings and drop ceilings ... removed; otherwise, the space will be in as-is condition" (Plaintiff’s Ex. 2, Exhibit B to Lease). All electrical and plumbing connections to the premises were capped prior to the plaintiff taking possession (Plaintiff’s Ex. 28).
(21) Pursuant to the Lease, the plaintiff became the tenant of the premises, WCD became the landlord, and the town became the master landlord, as those terms were defined in the Lease. Pursuant to paragraph two of the Lease, the Lease is a sublease where all of the rights and privileges afforded thereunder are subject to the terms of the Master Lease. In the event of any conflict between the terms of the Lease and the Master Lease, paragraph two of the Lease determines that the terms of the Master Lease will control.
(22) Prior to entering into the Lease and prior to taking possession of the premises, the plaintiff made no inquiries as to environmental conditions that may affect the property in general or the premises in particular. Neither Chopin nor any other person working on the premises on behalf of the plaintiff noticed any unusual odors on the premises at the time the plaintiff took possession of the premises or at anytime thereafter until April 2015.
(23) During the course of construction, the plaintiff had sole and exclusive possession of the premises. The defendants did not employ any of the contractors involved with the interior improvements to be constructed on the premises. During the course of construction, one of the plaintiff’s contractors cut a pipe that was connected to the UST. The contractor did not properly cap the pipe, which caused a small amount of the contents of the UST to leak into the premises (see, e.g., Plaintiff’s Ex. 23). The court rejects the plaintiff’s contention that, prior to delivering the space to the plaintiff, one of WCD’s contractors cut the pipe and failed to properly cap it. The court draws the fair, reasonable and logical inference that the plaintiff’s agents cut the pipe that eventually leaked oil into the premises. It is undisputed that WCD delivered sole possession of the premises to the plaintiff with all interior walls and ceilings removed. The pipe that eventually leaked oil into the premises was clearly visible to Chopin and the plaintiff’s contractors when the plaintiff took possession. Had one of WCD’s contractors cut the pipe and failed to cap it, one of the plaintiff’s contractors would certainly have noticed it.
Additionally, the court draws an adverse inference from the plaintiff’s failure to retain any construction records. The defendants were limited, in the course of this litigation, in their ability to contest the plaintiff’s claim that it was actually one of WCD’s contractors who failed to cap the pipe properly because the plaintiff had discarded all contracts, correspondence, proposals, and scope of work documents from the plaintiff’s own contractors shortly before commencing this litigation.
(24) The plaintiff completed construction of all interior improvements by mid-December 2014 and had a "soft opening" in late December 2014 (Plaintiff’s Exhibits 29, 30 & 31). The plaintiff had a grand opening on January 2, 2015.
(25) In March 2015, WCD entered in to a purchase and sale agreement with Paragon (Defendants’ Ex. L). Pursuant to the terms of the agreement, WCD sold, and Paragon purchased, all of WCD’s "rights, title and interest ... to the leasehold estate demised ... pursuant to that certain Lease Agreement by and between the Town of Wilton, as lessor, and [WCD], as lessee, dated September 26, 1983, as amended ..." (Plaintiff’s Ex. 1 & Defendants’ Ex. E).
(26) The purchase and sale agreement contemplated a closing date of April 23, 2015. On April 16, 2015, Chopin executed an estoppel certificate in which she, on behalf of the plaintiff, affirmed, inter alia, that the plaintiff "has accepted possession and is now in occupancy of the Premises pursuant to the terms of the Lease ..." She further certified that, as of April 16, 2015, "[a]ll improvements and space required to be furnished by the Landlord under the Lease have been completed as required and accepted by Tenant. Landlord has complied with all of its obligations with respect to the construction, fixturing and equipping of the Premises" (Defendants’ Ex. K).
There appears to be a handwritten note alongside this section that makes reference to a patio. This note does not appear relevant to the present case.
(27) Prior to acquiring WCD’s rights in the property, Paragon retained Langan to perform a Phase I Environmental Site Assessment of the property. Although the property is an "establishment," as that term is defined in General Statutes §§ 22a-134 through 22a-134e-commonly known as the Transfer Act-the transfer and conveyance of the leasehold interest from WCD to Paragon was not a "transfer of an establishment," and the parties were not required to comply with the filing requirements of the Transfer Act. Nevertheless, WCD commissioned Langan to perform an environmental site assessment of the property approximately one month prior to closing (Plaintiff’s Ex. 37). Langan concluded, based on earlier investigations and "site reconnaisance" in March 2015, that the tank removal would have also removed any residual petroleum impacted soil and therefore "the former fuel oil UST is not considered to have the potential to impact the environmental integrity of the Subject Property."
(28) All three defendants acted reasonably in relying on Langan’s conclusion that no further testing, remediation or removal was necessary.
(29) On or about April 23, 2015, the plaintiff notified WCD of a "paint-like" odor within the Premises (also described as a "heating oil odor" in Defendants’ Ex. P). At no time did the plaintiff give formal notice of the odor to the town’s representatives.
(30) On or about April 23, 2015, and after the plaintiff had notified WCD of the paint-like odor within the premises, WCD conveyed its interests in the property to Paragon.
(31) In May 2015, Paragon retained Langan to investigate the cause of the odor within the premises.
(32) Paragon, in an effort to locate the source of the odor, opened part of a wall in the premises (Plaintiff’s Exhibits 22 & 24 & Defendants’ Ex. T). Langan, in its Technical Memorandum dated May 4, 2016, describes the odor as being "strongest in the southwest corner of the yoga studio adjacent to a closet and a wall cavity" (Plaintiff’s Ex. 40 and Defendants’ Ex. P.). "Moisture, an oily residue, and elevated photoionization detector ... readings were observed on the surface of the concrete slab within the wall cavity." Langan also observed "[a] small oil drip" within the wall cavity and "three cut pipes ... a few feet above the slab. Insulation had been placed in the ends of the pipes, apparently by a previous owner, and appeared to be saturated with oily water." (Plaintiff’s Ex. 40 & Defendants’ Ex. P); see also Plaintiff’s Exhibits 23, 25, 26 & 27.)
(33) In July 2015, Langan surveyed the premises with ground penetrating radar and located the UST on the property (Plaintiff’s Ex. 32). In August 2015, Langan oversaw the decommissioning in place of the UST and the removal of all related above-ground and subsurface piping (Plaintiff’s Exhibits 19, 20 & 21). Langan collected soil samples from the areas adjacent to the UST "in accordance with the [Connecticut Department of Energy and Environmental Protection] CTDEEP guidance document entitled Sampling and Analytical Methods for Underground Storage Tank Closure." Testing of the soil samples found that "[t]he reported concentrations of all compounds analyzed were below applicable CTDEEP [Remedial Standard Regulation] criteria." Langan drafted a UST closure report for the property dated September 8, 2015, specifying actions taken to permanently decommission the UST in place as well as its findings and further recommendations (Plaintiff’s Ex. 38).
(34) On November 23, 2015, the Town of Wilton Department of Health ordered the café closed. Shortly after November 23, 2015, the plaintiff abandoned the premises and permanently closed its business.
(35) Sometime prior to November 23, 2015, the plaintiff filed a claim "for loss of income" with its insurer (Defendants’ Ex. R). The insurer disclaimed coverage on the ground that the policy excluded coverage for business interruptions caused by "[f]aulty, inadequate or defective ... workmanship, repair, construction, renovation, remodeling ... apart or all of any property on or off the described premises." The letter disclaiming coverage relied on the insured’s admission that "an environmental engineer inspected and found old oil pipes that were disconnected and left inside the wall ... The contractor did not properly cap the pipes and this was the source of the odor ..."
(36) Paragon retained Langan to investigate persistent petroleum-like odors emanating in and around the premises after the UST was emptied and decommissioned in place. Paragon, acting through Langan, conducted a "petroleum impact delineation," followed by a "petroleum impact remediation." In the course of the investigation and remediation, Langan removed portions of the concrete slab underlying the premises and all impacted soil. Langan reported, in its Technical Memorandum dated May 4, 2016 (Defendants’ Ex. P), that "all identified sources of the residual petroleum odors have been addressed." Langan recommended that no further investigations or remediation of the property, other than periodic monitoring.
(37) At no time did any of the defendants supervise, direct or exercise control on-site over the precise manner in which Langan performed its work.
(38) There is no evidence that any portion of the contents of the UST leaked into the ground immediately adjacent to or underneath the UST. There is no evidence that any portion of the contents of the UST affected the waters of the state of Connecticut at any time.
(39) As a result of the plaintiff’s contractors’ actions, Paragon incurred costs totaling $ 83, 839.25 to investigate, test, remediate and remove contaminated soil (Defendants’ Exhibits DD-MM).
Standards of Review & Analysis
Having found the facts as stated above, the court rules as follows.
The Plaintiff’s Causes of Action
The plaintiff proceeded at trial on its second revised complaint, dated April 5, 2018 (entry 192), in which it asserted eight causes of action against the defendants.
A. Breach of Contract
The plaintiff’s first and second causes of action, which are directed to all three defendants, sounds in breach of contract. Specifically, count one alleges breaches by the defendants of their obligations under the Master Lease and count two alleges breaches by the defendants under the Lease. With regard to count one, the plaintiff claims that "WCD breached the Master Lease by failing to keep the Property in good repair." WCD, the plaintiff alleges, failed to maintain the property to such an extent that WCD’s "negligence and neglect created a condition which substantially affected the public health and safety of those on the Property, including [the plaintiff], namely, the [r]elease of petroleum on and about ... the Premises." The plaintiff also alleges that WCD had notice of the condition and yet allowed it to remain for over twenty-five years.
The plaintiff also alleges, in count one, that the town assumed a duty to maintain the property and take all steps necessary to prevent creation of a public or private nuisance on the property when WCD failed to do so. The plaintiff alleges that the town breached this covenant of the Master Lease by failing to address a release of petroleum that WCD failed to act upon for more than thirty days. As a result of its failure to abide by the terms of the Master Lease, the plaintiff alleges, the town created a nuisance and caused the plaintiff to sustain damages.
The plaintiff further alleges in count one that WCD breached the Master Lease by failing to maintain the required insurance coverage, which would have provided coverage for "claims of the type brought in [the plaintiff’s suit]." The plaintiff also alleges that WCD failed to comply with applicable Connecticut law "by discharging untreated wastes, in the form of petroleum, into the waters of the State in violation of [General Statutes] § 22a-427, doing so without a permit in violation of [General Statutes] § 22a-430; and by failing to report the [r]elease to [the Connecticut Department of Environmental Protection] in violation of R.C.S.A. § 22a-449(d)-1(j), R.C.S.A. § 22a-449(d)-1(k) and [General Statutes] § 22a-450." As a result of the foregoing breaches of the Master Lease, the plaintiff claims damages.
In count two of its complaint, the plaintiff alleges that, pursuant the Lease between WCD and the plaintiff, WCD had a continuing responsibility to "replace, maintain and repair such utility lines, pipes and the like, in, over, upon and under the Premises as may have been installed therein." Moreover, the town "reserved to itself the right to install, use, maintain, repair and replace all pipes and appurtenant equipment that exists below the finished floor or within the interior walls of the premises." The plaintiff claims that the town and WCD had an obligation to maintain all utility lines and pipes servicing the property in general and the premises in particular. The plaintiff claims that the defendants breached their obligation by failing to maintain, repair and, when necessary, replace the UST and its lines and pipes. Their breach of this obligation led to the petroleum leak, which caused the plaintiff’s damages and created a public health hazard.
First, as a general matter, "under Connecticut law ... [t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Federal Ins. Co. v. Speedboat Racing, Ltd., 200 F.Sup.3d 312, 341 (2016).
Next, a landowner is required to keep its property reasonably safe, not perfectly safe. Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992) ("A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe"). It is also clear that, under common law, a landowner has an obligation to warn invitees and licensees of known, concealed and dangerous conditions. "There could be no breach of the duty resting upon the [landlords] unless they knew of the defective condition or were chargeable with notice of it because, had they exercised a reasonable inspection of their premises, they would have discovered it ... Thus, liability of a landlord for damages resulting from a defective condition in an area over which the landlord exercises control generally depends upon proof that the landlord received either actual or constructive notice of the condition prior to the time of the plaintiff’s injuries ... Liability also usually depends upon proof that the landlord failed to remedy the defective situation in a reasonable period of time after receipt of notice." (Citations omitted; internal quotation marks omitted.) Gore v. People’s Savings Bank, 235 Conn. 360, 373, 665 A.2d 1341 (1995); see also Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007) ("It is well established that, in the context of a negligence action based on a defective condition on the defendant’s premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it ..." [Internal quotation makrs omitted]); Grignano v. Milford, 106 Conn.App. 648, 652, 943 A.2d 507 (2008) ("[T]o establish liability for an injury caused by a [defect on the landowner’s premises], a plaintiff must establish that the landowner had either actual or constructive notice of the ... defective condition" [internal quotation marks omitted]). Accordingly, it is apparent that a landowner is required to act diligently to inspect its premises to ascertain if there are dangerous or defective conditions on its property and to remedy them within a reasonable time after they are discovered.
In the present case, the court does not find that the plaintiff has carried its burden of proof as to counts one and two of its complaint. The court agrees that the Master Lease requires the town, WCD and WCD’s successors and assigns to maintain the property in good order and repair. However, because a landowner’s obligation to maintain its property in good order and repair and to keep it free of dangerous and defective conditions does not extend to conditions of which the landowner is not aware, the defendants are not liable in the present case.
First, there is no evidence that the town was aware of the existence of the UST at the time it entered into the Master Lease with Faraco in 1983. The court accepts the opinion of the defendants’ expert witness that the UST was not required to be registered with CTDEEP. Nor is there any evidence upon which the court could conclude that WCD was aware of the UST’s existence when it succeeded to Faraco’s interest in the property shortly thereafter. None of the defendants had actual notice of the UST until it was uncovered in 2015.
Rather, the evidence shows only that the town and WCD were aware that a UST had been in use on the property at some time. The evidence shows equally clearly that both parties had good cause to believe-and did believe-that whatever UST had been installed on the property had been removed or properly closed. At best, the defendants can be charged with inquiry notice of the presence of a UST, possibly in the southeastern corner of the property. Neither WCD nor the Town breached its obligation to maintain the property in good order and repair by failing to remove, replace or update the UST and its associated piping because it is clear to the court that neither defendant was aware of the existence of the UST or of the pipes running through the premises at any time before 2015.
Second, the evidence shows that both the town and WCD acted reasonably and in accordance with law when they hired licensed environmental professionals to investigate whether the UST was still located on the property. The plaintiff argues in its posttrial memorandum that "it is undeniable at this point that the defendants violated numerous environmental statutes and regulations ..." The court, however, is not persuaded that one or more of the defendants violated any environmental statutes or regulations.
The court rejects the plaintiff’s contention that a "release" occurred on the property prior to 1991 that required the town and WCD to perform more testing and remediation than they did. The plaintiff cites several statutes and regulations in support of its claim that the town or WCD should have reported the finding of elevated total petroleum hydrocarbons in 1991 to CTDEEP. Had the Town or WCD done so, the plaintiff appears to argue, the entire concatenation of events leading to the plaintiff closing its business in 2015 would not have happened. The court agrees with the plaintiff that environmental protection laws should be liberally construed and applied. The court does not agree, however, that any of the statutes or regulations cited by the plaintiff apply to the present case.
General Statutes § 22a-427 provides that "[n]o person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter." The plaintiff correctly argues that Connecticut’s Water Pollution Control Act, General Statutes §§ 22a-416 et seq. (WPCA), applies not only to actual releases of pollutants into aquifers, streams and other waters, but also to persons who maintain facilities that could reasonably be expected to cause pollution to the waters of this state. See, e.g., BEC Corporation v. Dept. of Environmental Protection, 256 Conn. 602, 623-25, 775 A.2d 928 (2001). The plaintiff also correctly argues that General Statutes § 22a-450 requires persons responsible for "discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum ... which poses a potential threat to human health or the environment ..." to immediately report the discharge or spill to the commissioner of CTDEEP, even if the release or spill is not directly into the state’s waters.
Nevertheless, the discovery of an area on the property in 1991 containing elevated hydrocarbons was not a "spill," "discharge," or "uncontrolled loss" of petroleum as defined in § 22a-450. The plaintiff provides no authority upon which this court could conclude that the discovery of a small area of stained soil is a reportable event under the WPCA. Although § 22a-450 and CTDEEP regulations for management of underground storage tank systems appear relevant to the subject matter of the present case; R.C.S.A. §§ 22a-449(d)-1 et seq.; the results of the various investigations undertaken on the property did not trigger any of the reporting requirements for suspected releases. The discovery of the stained soil in 1991 was not a "[s]pill or overfill of petroleum that results in a release to the environment," or a "[s]pill or overfill of a hazardous substance that results in a release to the environment that equals or exceeds its reportable quantity under CERCLA (40 CFR part 302) ..." R.C.S.A. § 22a-449(d)-105(d)(1). Moreover, notwithstanding the testimony of John H. Insall, LEP, the plaintiff’s expert, it is not clear to the court that the stained soil found in 1991 was likely due to an actual spill near the UST, instead of leaching from surface asphalt. As stated in the court’s findings, the town and WCD reasonably relied on the conclusion it received from Langan that the elevated total petroleum hydrocarbons were the result of leaching from asphalt and not caused by an actual spill and that, in any event, the extractable total hydrocarbons found in the samples were below reportable limits.
R.C.S.A. § 22a-449(d)-105(a) provides as follows: "Reporting of suspected releases. Owners and operators of UST systems shall report to the implementing agency within 24 hours, or any time period provided under applicable law, including, but not limited to, section 22a-450 of the general statutes, as amended and any implementing regulations, whichever is earliest, and follow the procedures in subsection 22a-449(d)-105(c) of these regulations for any of the following conditions:
The other statutes cited by the plaintiff, General Statutes § 22a-16 (regarding actions for declaratory and equitable relief against unreasonable pollution) and General Statutes § 22a-430 (regarding permits for discharges into state waters), do not apply in any way to the facts of the present case. There is simply no merit to the plaintiff’s claim that any of the defendant’s actions caused serious and lasting harm to the soil or groundwater on or near the property, or that the defendant’s acts or omissions continue to harm the waters of the state of Connecticut in a manner that would entitle the plaintiff to declaratory and injunctive relief against any of the defendants.
The court is also not persuaded that the 2015 leak into the premises was a reportable event. Langan performed what appears to be appropriate testing of the soil in and around the UST and found that the contaminants were below reportable limits (Plaintiff’s Ex. P). But even if it was a reportable event, the plaintiff did not demonstrate how reporting the release of a very small portion of the contents of the UST would have led to a different result for the plaintiff. The evidence shows that Paragon acted quickly and reasonably to find and contain the source of the odor. Paragon, through its agents, then moved expeditiously to trace the oil to the UST and take all steps necessary to remediate the adverse environmental condition by removing pipes, decommissioning the UST in place and excavating all contaminated soil in, around and underneath the premises.
The plaintiff also contends that Langan did not send the closure report to CTDEEP as required by law. The court acknowledges that neither § 22a-450 nor the state regulations specify a minimum, threshold amount of hazardous material that triggers an obligation to report a release. The court nevertheless accepts the defendant’s expert’s opinion that it was not necessary to forward a copy of the report to CTDEEP because there did not appear to be any release of the UST’s contents to the subsurface. But even if Paragon or the Town were required to report the 2015 incident, the plaintiff did not demonstrate at trial how the result would have been different for it had the report been filed with DEEP.
The court carefully considered Insall’s testimony in support of the plaintiff’s claims that the defendants violated the aforementioned environmental statutes and regulations by failing to report the 1991 readings, the 2009 findings and the events of 2015. Insall testified that the record showed that Langan did, in fact, orally communicate its preliminary findings in 1991 with a representative of CTDEEP. The CTDEEP representative recommended further testing, which was done. Insall testified that the follow-up testing was inadequate and did not meet prevailing standards of care because they failed to use more intrusive methods, such as ground penetrating radar or mechanized excavation equipment. He also testified, however, on cross examination, that CTDEEP did not ever find Langan’s 1991 work unsatisfactory or direct that further testing, remediation or removal of stained soil should occur. Insall also testified that at no time did representatives of CTDEEP find any other environmental work by Langan unsatisfactory or cite Langan-or any of the defendants-for violations of any state or federal environmental statutes or regulations. Insall also testified that there is no evidence of any groundwater contamination as a result of the presence of the UST on the property, despite the fact that it remained in place more than seventy years after the end of its estimated useful life. Finally, Insall testified that it was reasonable for Paragon to retain Langan to perform the 2015 investigation and remediation work and for WCD and the Town to rely on Langan’s earlier recommendations and conclusions.
"In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony." (Internal quotation marks omitted.) ACMAT Corp. v. Great New York Mutual Ins. Co., 88 Conn.App. 471, 481, 869 A.2d 1254, cert denied, 274 Conn. 903, 876 A.2d 11 (2005). While the court certainly found Insall knowledgeable and experienced in environmental matters, the court does not accept his overall conclusion that Langan’s investigations and recommendations in 1991, 2000 or 2009 did not meet then-prevailing standards of care for environmental consultants. Insall did not establish by a preponderance of the evidence, for example, that the standard of care in circumstances similar to those existing in 1991 required the use of ground penetrating radar or other, more intrusive methods of testing, a contention that is central to the plaintiff’s case.
Instead, the court accepts the opinion of the defendant’s expert, Stephen A. Ciambruschini, PG, LEP, who testified that use of ground penetrating radar or magnetometers to locate suspected underground storage tanks was not common in the early 1990s (Defendant’s Ex. NN). Langan’s decision not to use heavier mechanized equipment such as a backhoe during the 1991 investigation appears to be an exercise of professional judgment by Langan that was reasonable and within Langan’s discretion at the time, and one that the court will not question twenty-seven years after the fact.
Judgment enters in favor of the defendants on counts one and two of the plaintiff’s second revised complaint.
B. Nuisance
Count three of the plaintiff’s complaint asserts a claim for damages for nuisance. The plaintiff alleges that the negligent or intentional conduct of one or more of the defendants in failing to maintain the UST and associated piping "facilitated the [r]elease and allowed petroleum odors caused by the UST, and the petroleum itself, to intrude into the Premises." The plaintiff asserts that the defendants’ conduct had "an actual tendency to create danger and inflict injury upon persons and/or property and constitutes a substantial and unreasonable interference with the Plaintiff’s use and enjoyment of the Premises."
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).
For reasons already stated, the court does not find the actions of any of the defendants at any time unreasonable or unlawful. As stated earlier, the defendants had no actual or constructive notice that a UST at one time existed on the property and there is no evidence that any person prior to the spring of 2015 ever complained of adverse environmental conditions on the property. Each time there was a refinancing transaction or transfer of the property, WCD and the town employed reputable licensed environmental professionals to investigate all areas of concern and report on their findings and conclusions. All three defendants acted reasonably to address known environmental concerns about the property. Notwithstanding the plaintiff’s contentions to the contrary, there is no evidence that any of the defendants directed Langan or any other person to deliberately avoid finding the UST at any time.
Judgment enters in favor of the defendants and against the plaintiff on count three of the plaintiff’s second revised complaint.
C. Negligence
Counts four and six of the plaintiffs second revised complaint sound in negligence. The plaintiff’s fourth cause of action claims that it sustained monetary damages as a direct result of the defendants’ negligence. In count six, the plaintiff alleges negligence per se. As pleaded in its second revised complaint and as developed at trial, the plaintiff’s theory of recovery in counts four and six against all defendants is as follows. The town installed a UST on town property in the 1920s which had a useful life of no more than fifteen years. The UST was made of uncoated steel and had no corrosion protection. The town, however, failed to remove or replace the tank at the end of its useful life. The town, acting through its agents, unlawfully abandoned the UST, which was filled with a mixture of heating oil and water. That mixture leaked into the commercial space rented to the plaintiff in 2014. In addition to failing to remove the UST or replace it after its useful life, the town, acting through its agents, breached its duty to the plaintiff and others by failing to retain experts who were qualified enough to locate the UST, report its existence to the DEEP and follow proper procedures to remove the tank or decommission it safely in place in accordance with prevailing rules and regulations. Further, the Town and WCD, again acting through its agents, failed to take appropriate action as required by law each time WCD refinanced the property and when it sold and transferred its interest in the property to Paragon. The town and WCD breached their duty of care to the plaintiff by retaining a licensed environmental professional, Langan, that failed to follow proper testing and remediation procedures each time it was called upon to opine as to environmental conditions affecting the property. Had the town replaced the tank or properly decommissioned it in place at the end of its useful life, or had the defendants retained a qualified licensed environmental professional that would have discovered the tank prior to the plaintiff taking possession of the premises, the plaintiff would not have suffered damages.
In terms of liability, the plaintiff also claims that Langan was an agent of WCD at all times when it conducted its investigations. WCD is, therefore, vicariously liable to the plaintiff for its agent’s negligence. Paragon is liable, the plaintiff contends, because Paragon also failed to identify the adverse environmental condition that forced the plaintiff to close its business. Paragon is also liable because Paragon assumed all of WCD’s when Paragon became the plaintiff’s landlord.
The plaintiff further argues that it was known in 1991 that the property was an "establishment," as that term is defined in the Transfer Act, General Statutes § 22a-134 et seq. All three defendants were on notice of the fact that at one time a dry cleaning business was operated on the property. It was also known, the plaintiff contends, that concentrations of total petroleum hydrocarbons were found in the southwestern area of the property where a UST was either formerly located or might still be present on the property. Notwithstanding this clear evidence, the plaintiff argues, Langan-on behalf of WCD and the town-performed only cursory examinations of the areas of concern. Instead of using ground penetrating radar, for example, which was widely available and in use in 1991 by licensed environmental professionals, Langan used only hand shovels to excavate no more than a foot or so deep in the area where the total petroleum hydrocarbons concentrations were found. Not surprisingly, the plaintiff argues, Langan failed to locate the UST. The plaintiff essentially argues that the explanation Langan gave at the time for the presence of the high concentration of total petroleum hydrocarbons-leaching from asphalt-was not credible, was not supported by sound environmental science, and should not have been accepted by the town, by WCD or by WCD’s lenders. Moreover, neither Langan, the Town, nor WCD reported their findings in 1991 to CTDEEP as required by law. The plaintiff further implies that the defendants had a strong incentive to make only minimal efforts toward identifying potentially costly environmental conditions. The defendants, the plaintiff argues, were all strongly motivated not to uncover adverse environmental conditions, which is the true explanation for the presence of a nearly 100-year-old UST on the property when the plaintiff took possession of the premises.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 589, 50 A.3d 802 (2012). On the other hand, "[n]egligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the [finder of fact] in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Gore v. People’s Savings Bank, supra, 235 Conn. 376. "[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute ... Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Id., 375-76. Environmental statutes and regulations have been used to establish negligence per se. See Oxford Board of Education v. Environconsult, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-08-5011175-S (March 12, 2010, Gallagher, J.).
Furthermore, "[v]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004). "Underlying this justification, however, commentators have noted that vicarious liability is premised upon the general common-law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss ... Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee." (Citation omitted; internal quotation marks omitted.) Id., 693 n.16.
The court finds that the plaintiff has not carried its burden of proof by a preponderance of the evidence that any of the defendants breached a common-law duty of care to it. First, as noted earlier in this memorandum, the court has found that Langan was never an employee of any of the defendants such that any of the defendants could be vicariously liable for Langan’s actions or failures to act as the defendants did not supervise, direct, or exercise control over the manner in which Langan performed its work. Second, as was also stated earlier in this memorandum, the defendants had a duty to maintain the property in a reasonably safe condition and did so. The law did not impose on any of the defendants a duty to correct, mitigate or remove concealed dangerous or defective conditions which were unknown to them. Third, for the reasons set forth above, the court also finds that none of the defendants at any time violated any statutory or regulatory requirements pertaining to the UST. Therefore, to the extent that the plaintiff’s cause of action is based on negligence per se, the claim fails as a matter of law.
D. Violation General Statutes 22a-16
The plaintiff alleges in count five of its complaint that the actions and inactions on the part of one or more of the defendants caused "the Release" on the property. The plaintiff further alleges that, presumably as a result of "the Release," "[t]he soil and groundwater on the Property is contaminated with hazardous substances, including [total petroleum hydrocarbons], at concentrations above applicable regulatory criteria." The plaintiff alleges that the groundwater in the vicinity of the property is a resource of the state and that the actions and failures to act of the defendants caused unreasonable pollution to the waters of the state of Connecticut. Therefore, the plaintiff asserts, it has the right to commence an action for declaratory and equitable relief against the defendants pursuant to § 22a-16 "for the protection of the public trust in the air, water, and other natural resources of the State of Connecticut from unreasonable pollution, impairment or destruction."
General Statutes § 22a-16 provides in relevant part that "any person ... or other legal entity may maintain an action in the superior court ... for declaratory and equitable relief against ... any person, partnership, corporation ... or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction ..."
"To establish a prima facie case under [the Connecticut Environmental Protection Act, General Statutes §§ 22a-14 et seq.], the plaintiff must prove that the defendant’s conduct was causing something more than a de minimis impairment of the environment." (Emphasis omitted; internal quotation marks omitted.) JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn.App. 630, 635, 90 A.3d 249 (2014). "Moreover, [a] plaintiff cannot meet its burden [under the act] simply by demonstrating that a natural resource of the state has been, or likely will be, polluted ..." (Internal quotation marks omitted.) Id., 636.
In the present case, there is no evidence that any of the defendants’ acts or omissions caused unreasonable pollution to the aquifers, streams, lakes or other bodies of water of the State of Connecticut. As stated earlier, the court is not persuaded that any uncontrolled release or spill of petroleum or other hazardous substances occurred on the property at any time. Furthermore, all adverse environmental conditions on the property have been addressed by the defendants in a speedy and lawful manner. As there are no actual bona fide or substantial legal issues in dispute in this case which require settlement between the parties, declaratory judgment is not properly invoked by the plaintiff. See Practice Book § 17-54.
Judgment enters in favor of the defendants and against the plaintiff on count five of the plaintiff’s second revised complaint.
E. Breach of the Covenant of Good Faith and Fair Dealing
Count seven of the plaintiff’s complaint claims damages for breach of the covenant of good faith and fair dealing. The plaintiff alleges that the defendants took actions that unreasonably interfered with its use and enjoyment of the premises. The plaintiff further alleges that the defendants breached the covenant of good faith and fair dealing which they owed to the plaintiff by: (1) failing to investigate and remediate the release when they had actual notice of it; (2) negligently allowing petroleum to leak into the premises; (3) causing a nuisance on the premises; (4) entering into the Lease while having actual or constructive notice that a condition existed on the property which was likely to impair the plaintiff’s use and enjoyment of the premises; and (5) either participating in or acquiescing in activities designed to conceal the existence of release of petroleum on the property.
"The relevant legal principles are well established. [I]t is axiomatic that the ... duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ... The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term ... To constitute a breach of [the implied covenant of good faith and fair dealing], 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." (Internal quotation marks omitted.) Keller v Beckenstein, 117 Conn.App. 550, 563, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
The plaintiff has not carried its burden of proof that any of the defendants breached the duty of good faith and fair dealing inherent in every contract. There is no evidence that any of the defendants at any time acted in bad faith toward the plaintiff. For reasons stated in more detail earlier in this memorandum, the court finds that the defendants acted reasonably before the plaintiff took possession of the premises and at all times thereafter. Additionally, the court makes a special finding that at no time did any of the defendants, acting alone or in concert with any other persons, take steps to conceal the existence of the UST or its contents.
Judgment enters in favor of the defendants and against the plaintiff on count seven of the plaintiff’s second revised complaint.
F. Violation of the Connecticut Unfair Trade Practices Act, General Statutes 42-110b et seq.
In count eight of the second revised complaint, the plaintiff alleges that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA). Specifically, the plaintiff alleges that the defendants "entered into the Lease and Master Lease with the [plaintiff] with actual and/or constructive knowledge that a condition existed on the Property that was substantially likely to interfere with the [plaintiff’s] rights under the [leases]." The plaintiff further alleges that the defendants failed to properly investigate or remediate "the Release," that the defendants violated applicable statutes and regulations related to the property, and that the defendants "either participated in, or acquiesced to, the repeated and systematic concealment of the Release occurring on the Property, and in the Premises, from the [plaintiff], [CTDEEP], and the public."
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." To determine whether a practice is "unfair" under CUTPA, the courts look to the factors of the "cigarette rule" test of FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972): "(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common-law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers [ (competitors, or other businessmen) ]." (Internal quotation marks omitted.) McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984); see also State v. Acordia, Inc., 310 Conn. 1, 29-30, 73 A.3d 711 (2013). "In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ..." (Internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 409-10, 78 A.3d 76 (2013).
The court finds no evidence that either of the defendants violated CUTPA. In order to determine whether the defendants’ actions support a claim under CUTPA, the court must consider each element of the cigarette rule test as they apply to the facts of this case. In doing so, the court finds no grounds upon which to find a violation of CUTPA in the present case by any of the defendants. Rather, the court finds that the defendants acted reasonably at all times in relation to the plaintiff. The court finds no evidence that any of the defendants committed a business practice that could be described as immoral, unethical, oppressive, unscrupulous, or fraudulent. Judgment enters in favor of the defendants and against the plaintiff on count eight of the plaintiff’s second revised complaint.
The Defendants’ Special Defenses and Counterclaims
All three defendants have filed numerous special defenses to the plaintiff’s claims. All three defendants have also filed counterclaims against the plaintiff claiming damages for breach of the plaintiff’s obligations under the Master Lease and Lease. Each defendant alleges that paragraph seventeen of the Master Lease, which is binding upon the plaintiff, provides in part that the "Lessee shall not permit the Premises to be used so as to create a public or private nuisance" and that the "Lessee shall comply with all laws of the State of Connecticut, applicable federal law and regulations and any Town ordinances." The defendants also allege that the Master Lease requires the plaintiff to maintain insurance for property damage to the premises, and to refrain from taking any steps which might cause the plaintiff’s insurance coverage to lapse. The defendants allege that the plaintiff breached the provisions of the Master Lease by cutting and failing to properly cap the pipe that leaked a portion of the contents of the UST into the premises, which caused the defendants to incur cleanup costs. The plaintiff’s actions also led its insurer to deny coverage for any losses arising from the leak. The defendants claim damages as a result of the plaintiff’s breach of the Master Lease.
The plaintiff moved to strike all special defenses interposed by the defendants, as well as all three counterclaims. In support of the motions to strike, the plaintiff argues that all three counterclaims allege that the plaintiff breached its contractual duties pursuant to the Master Lease. The plaintiff argues, however, that the "Lessee" referred to in the Master Lease is the original tenant under the Master Lease, not the plaintiff. Under no circumstances, the plaintiff argues, could the provisions of the Master Lease between the town, the Faraca Companies, WCD and Paragon impose contractual obligations upon the plaintiff as a subtenant. The plaintiff also argues that the counterclaims do not adequately state the damages each defendant incurred as a result of the alleged breaches of the Master Lease or how the alleged violations caused any of the defendants to sustain damages.
In response to the plaintiff’s motions to strike, all three defendants rely on the second paragraph of the Lease, which states that "this Lease is a sublease and that therefore all of the rights and privileges of the Tenant hereunder are subject to the terms and provisions of the Master Lease as from time to time in effect ..." In that same paragraph, the Lease further states that "[t]he terms of the Master Lease shall govern and control the terms of this Lease in the event of any conflict."
"The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App., 305, 309, 620 A.2d 181 (1993). "A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) Cadle Co. v. D’Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ... We are limited ... to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
At the beginning of trial, the parties agreed that the court could rule on the plaintiff’s motions to strike at the close of evidence. This presents a question about the matters the court can consider when ruling on the plaintiff’s motions, as the court would normally be bound to considering only the pleadings. See Zirinsky v. Zirinsky, supra, 87 Conn.App. 268-69 n.9. Given the posture of the present case, the court will treat the plaintiff’s motions to strike as motions for judgment of dismissal for failure of the defendants to make out a prima facie case on their counterclaims. See Durkin v. Durkin, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-00-0158557-S (October 16, 2000, Hodgson, J.) ("a defendant who fails to challenge the legal sufficiency of a complaint by filing a timely motion to strike must await the close of evidence to make a motion for evidentiary nonsuit in a bench trial"); but see McLeod v. A Better Way Wholesale Autos, Inc., 177 Conn.App. 423, 442 n.12, 172 A.3d 802 (2017) ("A motion for judgment of dismissal has replaced the former motion for nonsuit for failure to make out a prima facie case" [internal quotation marks omitted]).
"The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case ... For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ... [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 846, 863 A.2d 735 (2005).
The parties stipulated, and the court agrees, that the terms of the Master Lease are binding on the plaintiff. The allegations of the defendants’ respective counterclaims, therefore, state legally sufficient causes of action for breach of contract against the plaintiff based on alleged violations of the Master Lease. The allegations of each counterclaim are also sufficiently detailed to place the plaintiff on notice of the claims against it. The standards for motions to strike and motions for dismissal pursuant to Practice Book § 15-8 have both been met by the defendants, and the plaintiff’s motions to strike are denied.
Having found in favor of the defendants on all eight of the plaintiff’s causes of action, the court does not reach whether the defendants have proven any of their special defenses. For this reason also, the court takes no action on the plaintiff’s motions to strike the defendants’ special defenses.
With regard to Paragon’s counterclaims, the court finds that the plaintiff’s contractors’ act of cutting through and failing to cap one or more of the pipes leading from the UST into the premises caused Paragon damage. Essentially, these actions caused the premises to be partially untenantable for several months and required Paragon to expend funds for investigation, testing, remediation and removal of potentially contaminated soil and concrete caused by the improper cutting of the pipe or pipes inside the premises, which was a violation of paragraph seventeen of the Master Lease. Furthermore, pursuant to the Lease, the plaintiff contractually agreed to indemnify and hold Paragon harmless "from and against all claims of whatever nature arising from any act, omission or negligence of the Tenant, or Tenant’s contractors ..." (Plaintiff’s Ex. 2.)
The court finds that Paragon expended a total of $ 83, 839.25 as a direct result of the plaintiff’s contractor’s actions, which is properly chargeable to the plaintiff in accordance with Paragraph 17 of the Master Lease and Paragraph 18 of the Lease.
The court notes that Paragon, in its counterclaim, did not claim damages pursuant to the indemnification provisions of paragraph eighteen of the Lease. However, variances between pleadings and proof are material only if they result in surprise or unfair prejudice to the opposing party. See, e.g., Brunswick School, Inc. v. Hutter, 53 Conn.App. 455, 462, 730 A.2d 1206 (1999) ("A plaintiff’s right to recover has traditionally been based on the allegations made in his complaint. A plaintiff may not allege one cause of action and recover upon another ... While this principle still remains in force today, courts now follow a more liberal policy in passing on claims of variance between the pleadings and the proof offered ... A court will overlook a variance between the pleadings and proof unless that variance is so material as to prejudice the other party in the presentation of its case" [internal quotation marks omitted)). Given the limited and straightforward nature of the counterclaim, the court does not find that the plaintiff was unfairly surprised or prejudiced by Paragon’s claims for damages at trial. Also, the plaintiff made no objection at trial, based on variance, to defendants’ exhibits DD through MM.
Conclusion
Judgment enters in favor of the defendants and against the plaintiff on each count of the plaintiff’s second revised complaint. Judgment enters in favor of Paragon and against the plaintiff on Paragon’s counterclaim in the amount of $ 83, 839.25.
(1) The discovery by owners and operators or others of released regulated substances at the UST site or in the surrounding area including, but not limited to, the presence of free product or vapors in soils, basements, sewer and utility lines, and nearby surface water.
(2) Unusual operating conditions observed by owners and operators, including, but not limited to, the erratic behavior of product dispensing equipment, the sudden loss of product from the UST system, or an unexplained presence of water in the tank, unless system equipment is found to be defective but not leaking, and is immediately repaired or replaced; and,
(3) Monitoring results from a release detection method required under subsections 22a-449(d)-104 (c) and (d) of these regulations that indicate a release may have occurred unless the monitoring device is found to be defective, and is immediately repaired, recalibrated or replaced, and additional monitoring does not confirm the initial result;
(4) The owner or operator of UST systems shall submit a written report to the commissioner within 3 working days of a release including, but not limited to, estimated amount of product lost, location of release and identification of leaking components of the UST system.