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REG'L REFUSE DISPOSAL v. BARBELLA

Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
Aug 16, 2007
2007 Ct. Sup. 14536 (Conn. Super. Ct. 2007)

Opinion

No. X03 CV 03 4022297 S

August 16, 2007


MEMORANDUM OF DECISION ON MOTION TO DISMISS


The apportionment defendant, LFR, Inc. ("LFR"), has filed a motion to dismiss count one of an apportionment complaint filed by O'Brien Gere Engineers, Inc. ("O G"). In the underlying action, the plaintiff, Regional Refuse Disposal District No. 1 ("Regional Refuse"), makes claims against Barbella Environmental Technology, Inc. and O G regarding work done at the Barkhamsted landfill. In the four counts against O G, Regional Refuse alleges causes of action for negligence, breach of contract, breach of the implied covenant of good faith and fair dealing and negligent misrepresentation. In count one of the apportionment complaint, directed against LFR, O G seeks to apportion liability based upon LFR's negligence in improperly overseeing the monitoring, testing, reporting and/or maintenance of the improvements at the Barkhamsted landfill. LFR claims that the court lacks subject matter jurisdiction in that the underlying action against O G seeks damages for commercial loss only, and does not seek recovery for personal injury, wrongful death or property damage. O G claims that the underlying complaint contains allegations of property damage resulting from O G's negligence.

A motion to dismiss challenges the court's subject matter jurisdiction. Practice Book § 10-31(a); St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). In deciding the motion to dismiss in this case, the court must take the facts to be those alleged in the apportionment complaint, including those facts necessarily implied from the allegations, and construe them in a manner most favorable to O G. See Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). Every presumption favoring jurisdiction should be indulged. Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006). In this case, because O G is seeking apportionment of any damages awarded to Regional Refuse, the court will also view the allegations of negligence in the underlying complaint by Regional Refuse in the light most favorable to finding jurisdiction over O G's apportionment complaint.

General Statutes § 52-102b is the "exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." General Statutes § 52-102b(f). General Statutes § 52-572h(c) provides, in relevant part: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . if the damages are determined to be proximately cause by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages."

In Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583, 657 A.2d 212 (1995), the Supreme Court held that the legislature intended the phrase "damage to property" in General Statutes § 52-572h(b) "to encompass only its usual and traditional meaning in the law of negligence actions, namely, damage to or the loss of use of tangible property." The court further stated: "As a matter of statutory interpretation . . . [the court] simply cannot stretch the meaning of `damage to property,' as used in § 52-572h(b), to include commercial losses unaccompanied by physical damage to or loss of use of tangible property." Id., 584. The court concluded that "the term `damage to property' as used in § 52-572h, does not include purely commercial losses." Id. "Courts have held that this interpretation of `damage to property' is also applicable to § 52-572h(c)." Baldino Izzi v. Berkshire Engineering Surveying, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 065001045 (February 16, 2007, Gallagher, J.) (42 Conn. L. Rptr. 782).

In this case, Regional Refuse alleges in the original complaint that it is a municipal landfill district comprised of several towns and it operates a landfill in Barkhamsted. (Complaint, Count 1, ¶ 1.) It further alleges that it found "extensive erosion at the drainage down chute on the west side of the landfill which required extensive and costly repairs," and it "discovered that the cap on the Barkhamsted landfill was not constructed in accordance with the applicable contracts and specifications." (Complaint, Count One, ¶¶ 10, 11.) Regional Refuse further alleges that it suffered damages as a result of O G's failure to identify and/or identify to the plaintiff that material defects existed in the construction of the cap and that the cap was not installed in accordance with the proper specifications, and O G's failure to provide proper and competent construction oversight and on-site inspection. (Complaint, Count One, ¶¶ 12, 13.) Construing the allegations in the underlying complaint in the light most favorable to finding jurisdiction over O G's apportionment complaint, the court finds that the allegations regarding erosion and a defectively constructed cap relate to physical damage to property. Furthermore, O G's allegations in paragraphs fifteen and sixteen of count one of the apportionment complaint include claims that if the plaintiff sustained damages, they were or may have been caused by LFR's negligence in failing to properly monitor, inspect or discover deterioration and erosion to the cap, down chutes and improvements at the landfill. Both the underlying complaint and the apportionment complaint contain allegations of negligence resulting in physical damage to property. These allegations are sufficient "`to preclude any finding that [the plaintiffs] claims for economic damages were unaccompanied by physical damage or loss of use of tangible property, or are, in other words, purely commercial.' " (Internal quotation marks omitted.) Baldino Izzi v. Berkshire Engineering Surveying, LLC, supra, 42 Conn. L. Rptr. 782, quoting Acmat Corp. v. Jansen Rogan Engineers PC, Superior Court, judicial district of New Britain, Docket No. CV 960474249 (February 6, 1997, Handy, J.).

The court has subject matter jurisdiction over O G's apportionment complaint. LFR's motion to dismiss count one of the apportionment complaint is denied.

So ordered,


Summaries of

REG'L REFUSE DISPOSAL v. BARBELLA

Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
Aug 16, 2007
2007 Ct. Sup. 14536 (Conn. Super. Ct. 2007)
Case details for

REG'L REFUSE DISPOSAL v. BARBELLA

Case Details

Full title:REGIONAL REFUSE DISPOSAL DISTRICT NO. 1 v. BARBELLA ENVIRONMENTAL…

Court:Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford

Date published: Aug 16, 2007

Citations

2007 Ct. Sup. 14536 (Conn. Super. Ct. 2007)