Opinion
No. FBT CV 05 5000495 S
March 24, 2009
MEMORANDUM OF DECISION
Plaintiff's action is for damages resulting from the failure of plumbing work and an ensuing flood in the Tenay's house. This case is a subrogation action, in the name of the insured homeowner.
Count one is a claim for negligence. Count two is for breach of statutory new home warranty pursuant to General Statutes § 47-121.
On December 4, 2008, the defendant moved for summary judgment as to counts three, four and five. This matter was heard at short calendar on March 16, 2009.
The plaintiff, in his memorandum in opposition to summary judgment, consents to the entry of summary judgment on counts one and two of the complaint.
Count three asserts a breach of contract claim, and counts four and five assert claims of breach of express and implied warranty.
The documents submitted by the parties include a written contract in which the defendants agreed to provide the plumbing for the new Tenay house. The defendants agreed to install the master bathroom sink. The plaintiff claims that the plumber failed to fully insert the PVC riser into the gasketed connection for the faucet and that this resulted in the damages claimed. The improper installation of this and other parts constitute the basis of the plaintiff's claim.
The exhibits attached to the defendants' memorandum, among others, include the following: Exhibit A is an executed contract between G O Mechanical, LLC, and the plaintiff, dated August 15, 2000, for heating, air conditioning and plumbing work, containing a "guarantee" as follows: "All work specified herein to be completely guaranteed for a period of one year from the date of installation on all parts and labor. All work shall conform to state local codes. All material is guaranteed as specified. All work to be completed in a workmanlike manner according to standard practices . . ." Exhibit B contains two proposals for plumbing work to G O Mechanical, LLC, by Tonny's Plumbing Service, dated August 14, 2000, and October 17, 2000.
The plaintiff did not address the factual details of the breach, and provided no affidavits or documents relating thereto, because the defendants confined their arguments to the nature of the damages sought. The plaintiff quoted from the defendants' supporting papers as follows: "`However, the issue in this case is not whether any such implied terms or warranties exist, or whether there was such a breach by the defendant. The crucial inquiry should be on the claims of damages contained in Counts Three through Five.' (Defendants' Memorandum of Law, p. 14.)" (Plaintiff's memorandum in support of objection to summary judgment, p. 3, fn.1).
BREACH OF CONTRACT AND WARRANTY CLAIMS
The defendants claim that the contract; (Exhibit A); is a simple service contract containing no express provisions related to the nature and/or manner in which the work was to be done and containing no express warranties. The court does not agree. To the contrary, the language does exactly that, i.e. "GUARANTEE" as follows: "All work specified herein to be completely guaranteed for a period of one year from the date of installation on all parts and labor. All work shall conform to state local codes. All material is guaranteed as specified. All work to be completed in a workmanlike manner according to standard practices . . ." (Emphasis added.)
The plaintiff argues that the defendants' express promise in the contract to install the sink carried with it an implied promise that it would be done in a workmanlike manner.
The defendants claim that summary judgment should be granted because the plaintiff does not seek any breach of contract relief, but only damages resulting from negligence in the installation of plumbing fixtures in the plaintiff's residence, and these are tort claim damages barred by the statute of limitations.
The type of duty that is breached that gives rise to the plaintiff's claim determines whether the claim is a tort claim or a contract claim. Hill v. Williams, 74 Conn.App. 654, 813 A.2d 135 (2003). The same course of conduct may sound both in tort and in contract. Id.; 57A Am.Jur.2d, Negligence §§ 119-25 (1989). See also Beizer v. Goepfert, 28 Conn.App. 693, 699, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), 507 U.S. 973, 113 S.Ct. 1416, 122 L.Ed.2d 786 (1993) (allowing claim based in contract and tort). "[A]bsent a conflict between the rules of contract and tort, the plaintiff [is] allowed to proceed in both." Hart, Nininger Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 628, 548 A.2d 758 (1988). See also Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981); Knapp v. Walker, 73 Conn. 459, 461, 47 A. 655 (1900) (fraud and breach of contract claims made in single count).
In this case, there was a contract for the installation of a sink with guarantees, express and implied, and therefore the breach of contract and warranty claims are timely and within the six year statute of limitations. The fact that these defendants may have subcontracted out some of the work would not relieve them of their contractual duties. Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001) ("[T]he nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility.") (Emphasis in original.).
Damages for breach of contract can include compensation to put that party in the same position as he would have been if the contract had been performed. Russel v. Russel, 91 Conn.App. 619, 643, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005) ("It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed."); Levesque v. D M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976).
"Damages resulting from a breach of contract may be divided into those which flow naturally and usually from the breach itself, or general damages, and those which do not naturally flow from such a breach, but did in this case, or special or consequential damages." Milford v. Coppola Construction Co., 93 Conn.App. 704, 714, 891 A.2d 31 (2006), citing 24 S. Williston, Contracts (4th Ed. Lord 2002) § 64:14, pp. 130-31.
The plaintiff here seeks damages for personal property and housing materials damaged by water flowing from the failed connection, arguing that these are the types of general damages that would normally flow from an improper installation of a sink connection.
The damages claimed are those that would be a part of a breach of contract action because they are those which would flow naturally and usually from a breach by the failure to properly install a sink connection. As such, they are recoverable in contract and the claim for said damages is within the six-year statute of limitations for a breach of contract action.
For these reasons, the defendants' motion for summary judgment as to the third, fourth and fifth counts is denied.