Opinion
HHDCV166070813S
05-25-2017
Dicin Electric Company, Inc. v. O& G Industries, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
This action, filed by the plaintiff, Dicin Electric Company, Inc., against the co-defendants, O& G Industries, Inc. (" O& G"), and the town of Rocky Hill (" the defendant"), arises from a contract entered into between the plaintiff and O& G for the plaintiff to provide electrical services during the construction and renovation of Rocky Hill High School. Before this court is the motion filed by the defendant, Town of Rocky Hill, seeking to strike counts five and six of the plaintiff's complaint on the ground that the plaintiff failed to allege sufficient facts to support equitable causes of action.
The plaintiff alleges six counts in its complaint, filed on August 26, 2016. Counts one through four are asserted against O& G and allege unjust enrichment, quantum meruit, and breach of contract claims. Count five, alleging unjust enrichment, and count six, alleging quantum meruit, are asserted against the defendant.
Specifically, the plaintiff alleges the following facts. The contract between the plaintiff and O& G required the plaintiff to install an addressable lighting system in the school's natatorium, hallways, and building exterior, and a standard line voltage system in the remainder of the school. After the plaintiff and O& G executed the contract, the defendant revised the scope of work to require a fully addressable lighting system throughout the entire school. The defendant and/or O& G did not formally modify the contract to reflect these changes, but urged the plaintiff to complete the work in good faith. Despite the changes in the scope of work, the defendant failed to offer the plaintiff consideration for the benefit of their additional labor and materials, which is worth approximately $800,000 more than the value of the work represented in the contract documents.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
In the defendant's memorandum in support of its motion to strike, the defendant advances two arguments. First, the defendant argues that absent facts alleging that the plaintiff has no adequate remedies available at law, the plaintiff cannot allege unjust enrichment or quantum meruit, which it characterizes as equitable remedies. Specifically, the defendant argues that the plaintiff has several legal remedies available under General Statutes § 49-41 et seq. against the project's payment bond surety, the general contractor, and also against political subdivisions such as the defendant if they fail to ensure that the general contractor obtained a payment bond. The defendant argues the plaintiff has failed to allege facts in its complaint that these remedies are inadequate and thus is precluded from alleging equitable remedies. Second, the defendant alleges that the legislature intended General Statutes § 49-41 et seq. to be the exclusive remedy for subcontractors.
In opposition, the plaintiff argues that it has sufficiently alleged facts to support each individual element of its claims for unjust enrichment and quantum meruit. Further, it argues that General Statutes § 49-42 is not an adequate remedy at law because a payment bond is not intended to cover the cost of additional work completed outside the scope of a contract. The plaintiff also claims that the damages sought in the present action exceed the amount available from the defendant's payment bond.
" Quantum meruit and unjust enrichment are noncontractual means of recovery in restitution. Quantum meruit is a theory of recovery permitting restitution in the context of an otherwise unenforceable contract. In contrast, recovery under a theory of unjust enrichment applies in the absence of a quasi-contractual relationship . . . Because both doctrines are restitutionary, the same equitable considerations apply to cases under either theory." (Citation omitted.) Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012).
The defendant's first argument incorrectly assumes that the plaintiff's particular claims of unjust enrichment and quantum meruit are equitable and therefore require the absence of an adequate remedy at law. " This assumption ignores the fact that the jurisdictions of law courts and equity courts have always overlapped with respect to restitution . . ." (Internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn.App. 436, 442, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). " Although [the] description of quasi contract as 'equitable' has been repeated many times, this refers merely to the way in which a case should be approached, since it is clear that the action is at law and the relief given is a simple money judgment." 1 G. Palmer, The Law of Restitution (1978) § 1.2, p. 9.
Our appellate courts, with at least one exception, have continued to characterize restitution claims seeking monetary relief as actions at law. " In Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963), our Supreme Court, consonant with the Restatement [of Restitution] view, explained: [An unjust enrichment claim] is an action in quasi contract, i.e. an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which is to prevent unjust enrichment . . . The only remedy is in an award of money damages. There is no merit to the claim of the defendant that the plaintiff's only right of action was in equity and that equitable relief had to be sought." Gagne v. Vaccaro, supra, 80 Conn.App. 441. At least one recent Superior Court decision has explicitly held that the requirement of an adequate remedy at law is inapplicable to unjust enrichment because it is an action at law. Rapoport v. Southfield Point Ass'n, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-02-0188888-S (September 2, 2004, Grogins, J.) [37 Conn.L.Rptr. 806, ]. See also 1 Restatement (Third), Restitution and Unjust Enrichment, Restitution May Be Legal or Equitable or Both § 4, Reporter's Note (e), p. 40 (2010) (" Quantum meruit is not an equitable doctrine, it is a form of action developed in courts of law").
In United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn.App. 125, 521 A.2d 1048, cert. denied, 203 Conn. 806, 525 A.2d 521 (1987), the Appellate Court held that the statutory subrogation procedures available at the time were adequate legal remedies that precluded the equitable remedy of unjust enrichment. The holding that unjust enrichment is equitable is inconsistent with Misisco and Gagne, and this court declines to follow it.
In the present action, the plaintiff alleges that the defendant, despite promising to amend its contract with O& G, failed to do so and received the benefit of over $800,000 in additional goods and services. The plaintiff's claims of unjust enrichment and quantum meruit seek monetary relief for goods and services provided to the defendant in the absence of a contract with the defendant. Consequently, these claims seek remedies at law, not equity, and therefore, the outcome of this motion does not depend on the availability of adequate remedies at law.
In the alternative, the defendant argues that the common-law claims of unjust enrichment and quantum meruit are precluded by § 49-41 et seq. The defendant asserts that the legislature intended § 49-41 et seq. to be the exclusive remedy for subcontractors. The defendant's argument is twofold. First, it asserts that because § 49-41 et seq. was modelled after the federal Miller Act, which provided an exclusive remedy against the otherwise immune federal government, the Connecticut legislature had a similar intent with respect to municipalities. Second, the defendant asserts that the legislature intended § 49-41 et seq. to be the exclusive remedy because it provided a complete scheme under which subcontractors could sue the surety, the general contractor, and the municipality. Under this scheme, according to the defendant, a right of action is only available against the municipality when it fails to ensure that the general contractor secured a bond. In light of this comprehensive set of remedies, the defendant claims that allowing common-law remedies against the town would frustrate the purpose of the statutes.
The defendant's first argument fails because state municipalities, unlike the federal government, do not have sovereign immunity. Though our courts have concluded that the General Assembly intended § 49-41 and § 49-42 to operate in general conformity with the federal Miller Act; American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978); " [c]are must be taken when relying on decisions under, or relating to . . . the Miller Act. Most of the cases . . . involve the United States government as a party. The United States, however, can only be sued when it consents to be sued, much as the State of Connecticut can only be sued when it consents to be sued (in State court). Municipalities, on the other hand, do not have sovereign immunity but rather a more limited immunity, commonly referred to as governmental immunity." M& L Constr., Inc. v. Town of Darien, Superior Court, judicial district of Stamford, Docket No. CV-13-6022914-S (March 5, 2015, Povodator, J.) [59 Conn.L.Rptr. 823, ]. Given the limited immunity granted to state municipalities as compared to the broad immunity of the federal government, one cannot conclude, simply by analogy, that the legislature intended § 49-41(d) to be the exclusive remedy against municipalities.
The defendant's second argument fails because the Connecticut Supreme Court has already established in Cecio Brothers, Inc. v. Greenwich, 156 Conn. 561, 244 A.2d 404 (1968) that such a claim for unjust enrichment could lie against a municipality. In Cecio Brothers, Inc., the court examined " whether the facts support the conclusion that the town will be unjustly enriched unless it is required to pay the [subcontractor] for furnishing 10, 000 cubic yards of borrow fill in excess of the . . . specifications of the prime contract." Id., 564. The court reached the merits of the unjust enrichment claim, even though, under the circumstances, it held that the plaintiff could not recover. See also Vertex, Inc. v. Waterbury, 278 Conn. 557, 576, 898 A.2d 178 (2006) (citing Cecio for the general proposition that municipalities can be liable for unjust enrichment if acting within the scope of their corporate powers).
Critically, Cecio held that unjust enrichment claims could lie against municipalities at a time when the statutes already afforded subcontractors a right of action against the payment bond. General Statutes (Rev. to 1958) § 49-42(a) stated in relevant part: " Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished . . . shall have the right to sue on such payment bond for the amount . . . unpaid . . ." Furthermore, the Cecio court was aware that the statutes were modelled on the Miller Act. Connecticut revised the statutes in conformity with the Miller Act in 1941 long before Cecio was decided. International Harvester Co. v. L.G. DeFelice & Son, Inc., 151 Conn. 325, 332, 197 A.2d 638 (1964) (noting that during the 1941 legislative session the General Assembly used the Miller Act as its model for legislation that ultimately became § 49-41 and § 49-42). Notably, the Cecio defendant explicitly briefed this issue, arguing that the 1941 revisions were intended to preclude unjust enrichment claims against municipalities. Cecio Brothers, Inc. v. Greenwich, Conn. Supreme Court Records & Briefs, May Term, 1968, Town of Greenwich's Brief, pp. 10-14. Nevertheless, the Cecio court reached the merits of the plaintiff's unjust enrichment claim.
Despite the implications of Cecio, several trial courts have concluded that the presence of a payment bond precludes a subcontractor from bringing a claim for unjust enrichment against a municipality. In its memorandum, the defendant cites two such cases: York Hill Trap Rock Quarry Co. v. Conn-Strux, Inc., Superior Court, judicial district of New Haven, Docket No. CV-10-6001360-S, (February 10, 2012, Markle, J.), and Kerite Co. v. Norwalk, 32 Conn.Supp. 168, 344 A.2d 364 (1975). Though both cases were decided after 1968, neither acknowledge the court's ruling in Cecio . Rather, they rely on the fact that the statutes were modelled on the Miller Act and also on the basis of later amendments to the statutes. Comparisons between § 49-41 et seq. and the Miller Act are unhelpful because, as discussed previously, municipalities lack sovereign immunity, and as will be discussed, the later legislative amendments to the statutes are not dispositive. Therefore, the court declines to follow these decisions.
Moreover, since the Cecio decision, there have been no amendments to § 49-41 et seq. that abrogate subcontractors' common-law rights against municipalities for unjust enrichment and quantum meruit. " [T]he legislature is always presumed to have created a harmonious and consistent body of law . . . [and] to be aware of prior judicial decisions involving common-law rules." R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 257 n.20, 939 A.2d 1122 (2008). " In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 789, 865 A.2d 1163 (2005). For subcontractors, the relevant amendments to § 49-41 et seq. since 1968 have given them additional statutory remedies. In 1969, the legislature enacted General Statutes § 49-41a, which added a cause of action against the general contractor if payment was not made to a subcontractor within forty-five days of the general contractor receiving payment from the municipality. The Connecticut Supreme Court concluded that the addition of § 49-41a did not affect the remedy already available to subcontractors under § 49-42, stating " § 49-41a(b) and § 49-42 . . . are separate and distinct statutes designed by the legislature to accomplish separate and distinct ends and to afford separate and distinct remedies to subcontractors." Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477, 542 A.2d 692 (1988). In 2005, § 49-41 was amended to include subsection (d), granting subcontractors " the same legal right of action against such political subdivision of the state as such person would have had against a surety under the provisions of section 49-42" if a municipality " fails to obtain delivery from the contractor of the bond."
None of the amendments since 1968 overcome the presumption that the legislature does not intend to abrogate subcontractors' common-law rights. Though subcontractors have additional remedies, including one against a municipality for failing to ensure a bond is provided, subcontractors already had a statutory remedy when Cecio was decided. The fact that more remedies now exist does not demonstrate a clear intent that the remedies should be exclusive. Moreover, the legislature is presumed to be aware of existing judicial decisions such as Cecio, and the amendments do not demonstrate that the legislature intended to supersede it. Accordingly, the plaintiff's quantum meruit and unjust enrichment claims are not abrogated by these statutes.
CONCLUSION
The motion to strike counts four and five are denied.