October 19, 2005
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
Brief Factual Background
The plaintiff, John Nangle, was the owner of a beauty salon (Salon 3303) located at 3303 Main Street in Stratford, Connecticut. He was a commercial tenant on the property under a lease with its owner, the defendant, National One, LLC. The plaintiff, Helen Kantzas, worked at Salon 3303 as a manager. The claim is that the defendant re-sided the building and performed other construction work and, in so doing, created a condition which promoted the growth of mold, fungi, bacteria and/or other known allergens, irritants and microtoxins; it is further alleged the defendant failed properly or promptly to remediate the infestation of these toxic agents.
Both plaintiffs allege the negligent construction and/or remediation caused them to develop allergies, experience skin rashes, headaches, generalized muscle pain, impairment of their immune system, etc. — from which they continue to suffer and for which they have required medical treatment. Both also allege a breach of the defendant's obligation under the lease to make repairs to structural portions of the building. Nangle also has asserted, in the Fifth Count, a claim for forcible entry and detainer and, in the Sixth Count, a cause of action for conversion. The gravamen of these claims is that the defendant entered the premises of Salon 3303 without Nangle's consent during the term of the lease and took possession of his personal property, thereby causing him further damage.
Paragraph 16 of the Third Count and paragraph 15 of the Fourth Count allege the plaintiff Kantzas, "as an employee of Nangle and working in the Premises (sic), was an intended beneficiary of the duty imposed upon National to make such repairs."
On April 25, 2005, the plaintiffs filed a Motion for PJR, requesting a PJR be granted to secure the sum of $60,000.00 on behalf of Nangle and $190,000 on behalf of Kantzas. The plaintiffs have requested as much of the real property the defendant owns at 3303 Main Street, 2573 Main Street and 33 King Street in Stratford, Connecticut, and 180 Pepe's Farm Road in Milford, Connecticut, be attached to secure the sums determined as damages, if any. Evidence was taken on August 22 and October 11, CT Page 13350-n 2005.
Applicable Legal Standard
The issue in deciding an Application for PJR relief is whether a party has established probable cause as to any claim and as to damages. Probable cause has been defined as a bona fide belief in facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such relief. Dufraineau v. CHRO, 236 Conn. 250, 261 (1996). Probable cause must be established as to both liability and damages. Ledgebrook Condominium Association, Inc. v. Lusk Corp., 172 Conn. 577, 579 (1977). Probable cause does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730 (1983); thus the plaintiff does not have to establish he will prevail but must establish there is probable cause to sustain the validity of the claim. Ledgebrook, supra, at 577. The court's role therefore in such a hearing is to determine probable success by weighing probabilities. Three S Development Co. v. Santore, 193 Conn. 174, 175-76 (1984). The granting or denial of the remedy is within the discretion of the trial court. Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 30 (2003).
Exhibit 18 was a report (dated 11/12/03) by a civil engineer (O'Leary) with a company called EFI; that company was requested by the defendant's adjusting company to determine the cause of water damage to the wooden sheathing and clapboard siding at the southeast corner of the addition to the building in which Salon 3303 was located. On October 21, 2003, O'Leary met with one of the defendant owners (Mason) at the site, viewed photographs of the water damage and the construction undertaken to repair the damage, and toured and inspected the premises. He determined the two sources of water entry into the building were: (1) the gutter at the eave of the west side of the original roof which he found was too small to hold the runoff from the roof above it (which caused the gutter to overflow and fall to the ground adjacent to the foundation wall, some of which water leaked into the foundation at the southeast corner); and (2) the wall at the southeast corner of the addition (Again, the downspout and gutter were too small to store excess water and/or to handle runoff water from the roof, thus causing some water to overflow the gutter, run down the side of the building and to be trapped behind the original clapboard and wet the sheathing under it). The result was the formation of dry rot and mold, "most likely the source of the odors and mold in the addition." Exh. 18, p. 2. Exhibit 17 was a report prepared by Dr. William Vaughan of Nauset Environmental Services, Inc. (an air quality CT Page 13350-o company located on Cape Cod, Massachusetts) at the request of plaintiff Nangle. Dr. Vaughan, the company president and senior scientist, inspected the building on November 7, 2003, and took air samples to address mold concerns in the salon proper (where the two plaintiffs were employed) and the basement. By that date, the defendant had retained a contractor to replace the siding on the north and south sides of the building (in order to address ongoing leaks on the side walls of the building). As part of that work, extensive mold was found in the wall cavities with resulting wood rot. Eventually a mold remediation effort was carried out, which effort was concentrated on a part of the salon space. Indoor air samples were strongly influenced by "Asp-Pen" ( Aspergillus and Penicillium) like spores, a spore type associated with strong allergic reactions by sensitized individuals. Absolute levels of these spores increased two to seven times when comparing "quiet" samples to "disturbed" samples; this, he concluded, indicated reservoirs of spores in the work space of the salon, which reservoirs could be stirred up so as to irritate persons inside the salon. Documented spore levels in the quiet mode were above the guideline (of 1,000 spores/m3) for two of the three quiet salon samples and exceeded the guideline by almost a factor of five when there was human activity within the space. Exh. 18, p. 5. The quiet basement levels were above the salon disturbed levels and well above the guideline level. Id. Vaughan concluded there were remaining reservoirs of spores not eliminated by activities in the areas of the salon or basement. With regard to Vaughan's wall cavity sampling, he concluded there was a considerable reservoir of viable Penicillium spores which, as drafts moved through the cavities as a result of wind or pressure differences, could be carried through, for example, electrical outlets into the air space of the salon and, because these colony forming units were capable of producing more spores, could proliferate in the salon if they encountered damp or humid conditions. Id. Finally, he determined that, as a result of the crawl space under the rear salon room having been stripped of insulation and the anomaly of basement floor joists being used as return air ducts, air from the crawl space and basement was brought to the salon space above, drawn into the HVAC system, and circulated to other areas of the building. Id., at pp. 2-3.
O'Leary concluded that, to cause the extent of the damage shown in repair photos shown him by defendant Mason, "water has been overflowing the gutters and downspouts for at least five years, and probably many CT Page 13350-s more." Exh. 18, p. 4.
The building was — and had for some time been — a sick building. Clearly, the remediation efforts failed; odors persisted and individuals — to include these plaintiffs — continued to exhibit symptoms as earlier described. Yet the building was not closed to its occupants or visitors; this literally required the plaintiffs to stay away. Nangle had little choice but to leave his personal property behind (chairs, mirrors, beauty products and equipment, fishing materials he housed on site, etc.) and to rent a chair at another beauty salon in the area where he could service customers who followed him. From the evidence, the court can infer that, CT Page 13350-p when the defendant purchased the property in March of 2001, either the inspection presumably done prior to closing was negligently done or that the defendant owners failed to read the inspection report.
This scenario is not unlikely. Mason testified, with regard to a bathroom which emitted particularly foul odors as a result of urine having seeped through layers of floor boards around the toilet, that he did not even know of the existence of the bathroom, believing it to be a "closet."
The court's examination of the exhibits revealed Nangle's treatment by Dr. John Santilli, testing undertaken, and a consult with an infectious disease doctor (as ordered by Santilli) resulted in medical expenses of $2,219.91 (above the amount argued at trial). Dr. Santilli, a board certified allergist, examined the patient, administered questionnaires focusing on rhinitis outcomes and cognitive functions, and did some skin testing which showed an allergy to, inter alia, Aspergillus and Penicillium. He concluded Nangle's symptoms were "severe," that he experienced "severe" cognitive impairment, and he opined that, within a reasonable degree of medical probability, the poor indoor air quality at Salon 3303 was due to contamination by toxic mold which had a significant impact on the plaintiff's health. Exh. 15, report of 2/21/05, p. 2. His property damage loss is estimated to be $14,000. He continues to experience the effects of allergies not previously experienced though there was no evidence of the need for further treatment.
The defendant argued Wasko v. Manella, 87 Conn.App. 390 (2005), prevents the court from accepting the values Nangle placed on his inventory, furniture and fishing equipment. The court is not persuaded. In Wasko, the damages for loss of contents was based on replacement costs. There was no evidence in this two-day hearing of replacement costs. The court's belief is that Nangle's value was of the fair market value of the property when he was dispossessed of it.
The defendant introduced as evidence the declarations pages of two policies providing the defendant business owners' liability coverage for the periods 10/1/02 — 10/1/03 and 10/1/03 — 10/1/04. A specimen policy was offered though, because only a "specimen" policy, it cannot be said with certainty that was the policy covering this defendant during the identified time periods. The defendant urges the court to find any judgment rendered against it is adequately secured by insurance, an inquiry the court is required to make under C.G.S. § 52-278d(a)(2). The court cannot make that finding in the absence of an offer of the policy issued this defendant (as opposed to defense counsel's offering of what is at best — a specimen policy), no testimony by an insurance representative, and the presence in the specimen policy of a "Total Pollution Exclusion." The specimen policy is silent as to whether "mold, fungi, and bacteria" are pollutants. There is no declaratory judgment action before this court. The superior court cases cited by defendant at the close of the hearing ( National Grange Mutual Ins. Co. v. Caraker, D.N. CV-03-0070715, j.d. of Windham at Putnam, Foley, J., 8/6/04 ( 37 Conn. L. Rptr. 616); Danbury Insurance Co. v. Novella, 45 Conn.Sup. 551) considered whether lead paint and asbestos were "pollutants" or "irritants" or "waste" or "contaminants" as those terms were defined in the relevant policies. In both cases, the insurance carrier's motion for summary judgment was denied, both courts finding the language of the exclusion clauses ambiguous. Additionally, the carrier in the case before this court is defending under a reservation of rights under that total pollution exclusion as well as on the basis there was not here an CT Page 13350-q "occurrence" so as to bring the plaintiffs' injuries within the ambit of coverage. Finally, information provided in the Declarations (Exhs. A and B) suggest that, if coverage is provided, no more than $5,000 will be paid for medical expenses to any one person — and that may be relevant to the claim of Ms. Kantzas. Under these circumstances, the court is not satisfied of the existence of insurance sufficient to satisfy awards that may ultimately be rendered.
As to Nangle, there is probable cause to sustain the validity of his claim on, at the least, the negligence claim asserted. A prejudgment remedy is granted in the amount of $35,000.
The situation is decidedly less clear for the plaintiff Kantzas. On the one hand, she also has treated with Dr. Santilli who, in a report dated Aug. 18, 2005, diagnosed her as having allergic rhinitis and sinusitis and concluded, with a reasonable degree of medical probability, that her exposure to high levels of indoor mold at work was the direct cause of her allergies. He noted Ms. Kantzas had allergies before and, thus, the workplace exposure caused an exacerbation. "She previously reported minimal allergies before her exposure at work and it is unlikely that her symptoms will return to their previous minimal level." Id. She was also seen by Dr. Sena who in his report of November 18, 2003, indicated the patient told him her symptoms ("numbness and tingling in the extremities and the trunk as well as a sensation of aches and pains in the joints dating from the early part of 2002") " started when she went into a workplace where some construction was being done and it was full of mold and mildew." Id. The court therefore credits the medical costs attributed to Dr. Santilli's and Dr. Sena's care ($1,267 and $1,450). Her treatment by Drs. Hermele and Dawe was for a lumbar and right hip condition her physicians attributed to a car accident in December of 2001; thus, the costs of MRIs of those body areas at Bridgeport Hospital in August and September of 2003 are disregarded in the absence of any report which establishes a causal relation between the treatment rendered and mold in the workplace. Nor is the 9/27/03 bill from Advanced Radiology (for an MRI of the lumbar spine and lower extremity) or the 8/18/03 bill from the same group (for still another lumbar MRI) causally related by any report or testimony. The bill of Dr. Yannopoulos (listed as $525 in the Summary of Bills in Exh. 21 but which actually appears to be in the amount of $810) is not causally related anywhere (In fact, there is no report from that practitioner.). Dr. Hermele's report of 7/31/03 makes clear he saw her at the request of Dr. Yannopoulos — for "back and right hip problems" attributed to an accident in December 2001." Id. Dr. Miljkovic, an infectious disease doctor (for whom no bill is claimed), saw her on 11/4/03. His report notes she was referred for evaluation of mold exposure but he doubted "that the patient's symptoms are related to mold CT Page 13350-r exposure." Id. That report also references the patient having seen Dr. Pleban for a questionable hernia and that doctor having ordered another MRI of the back. The court is provided nothing that permits her to find a causal relation between that treatment and the mold exposure nor is the right groin surgery the patient underwent related.
Santilli ordered allergen testing at Quest Diagnostics in October of 2003 but no bill is provided.
The lady testified to having been out of work for one year for a salary loss of $23,000. The court must reject the same in the absence of any supporting documentation (i.e., payroll records, tax returns, W2). While Dr. Santilli's report of 8/18/05 indicates Ms. Kantzas will need the continued treatment of an allergist "to keep her symptoms under control" at a cost he estimates is $5,952 per year, no evidence of the patient's life expectancy was introduced and thus, for the purpose of this PJR application, that information is not useful.
Counsel, in closing argument, made reference to his having a lower burden of proof on a hearing for PJR relief than he would have at trial. He cites no authority for that proposition nor is there any. The fact a plaintiff need not establish he will prevail at trial but must establish probable cause to sustain the validity of the claim does not relieve counsel of the burden of establishing probable cause as to liability and damages. For the court to have a bona fide belief in facts essential under the law for the action asserted means medical damages and lost wages must be removed from the area of speculation and established as more probably correct than not.
The court is satisfied that, apart from injuries to her back and hip attributable to a December 2001, accident, Ms. Kantzas has sustained a re-aggravation or worsening of a problem with allergies her treater has stated she had before mold in the workplace, such that she now has a negative response to a far wider group of provocative agents which causes her to live her life differently and with greater difficulty. There is probable cause to sustain the validity of her claims on the negligence cause of action asserted. A prejudgment remedy is granted in the amount of $50,000.
The four properties listed in Schedule A attached to the Application are attached to the extent necessary to secure a total judgment in the amount of $85,000.
Accordingly, an Order for Disclosure of Assets is granted. The deposition shall occur at 1061 Main Street in Bridgeport on a date and time agreeable to counsel.