Marilyn Hassiak et al. v. Ernest O. Belmont, Inc. d/b/a/ Arrow Home Inspection (2010)

MEMORANDUM OF DECISION

This is the defendants' motion for summary judgment (# 117).   The motion must be denied for the reasons set forth below.

Statute of Limitations

First, the defendants claim that the plaintiffs' action was brought beyond the applicable statute of limitations and that summary judgment should be granted on their special defense which reads:  “The claims asserted in Count One and Count Three are barred as not brought next within two years of the date the injury was first sustained or discovered or should reasonably have been discovered, pursuant to C.G.S. § 52-584.”   But, this argument is unavailing because, pursuant to the marshal's return, the plaintiffs placed the writ, summons and complaint in the hands of the marshal for service on August 21, 2007, a date which is within three years from the alleged negligence,¹ and within two years the date when the negligence was discovered by the plaintiff.²  The marshal's return states that service was made on the defendants on August 30, 2007, a date which is within thirty days of delivery.   Therefore, pursuant to C.G.S. § 52-593a, the plaintiff's cause of action is not lost due to the statute of limitations.

Contractual Statute of Limitations

Next, the defendants have raised a one-year limitation period contained in the agreement between the parties.   The special defense reads:  “The action is barred as it was not brought within one year of the date of accrual pursuant to the provisions of the contract.”   The contract provides:  “No suit or action shall be brought against the inspection company by any third party at any time beyond 1 year after the accrual of the cause of the action itself.   If someone other than the client who ordered this inspection shall make any claim or file any lawsuit against the inspection company for failure of its services hereunder in any respect, the client agrees to indemnify, absolve and hold harmless the inspection company from any and all such claims and lawsuits including the payment of all damages, expenses, costs and attorneys fees.”   (Emphasis added.)   The one-year limitation in this provision applies only to “third parties,” which implies persons who are not party to the contract.   Although the contract does not define “third parties,” it does refer to the party ordering the inspection as a “client,” not as a “third party,” which also suggests that a client is not a third party.   Thus, the court need not reach the question of whether the one-year limitation supersedes the three-year statute of limitations in General Statutes § 52-584 because the one-year provision does not apply to the plaintiff.

Arbitration Clause

The contract provides:  “If there is a claim, then all parties shall agree to submit to BINDING ARBITRATION in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.”   The applicable special defense filed by the defendants states:  “The suit is barred by the arbitration provision of the contract.”   The defendants seek summary judgment on that special defense.

The brief filed by the defendants simply states:  “The plaintiffs did not submit this case to arbitration.   As such, this court does not have subject matter jurisdiction over this lawsuit.”   No cases are cited for this proposition.   This is because the Connecticut Appellate Court has rejected this argument, noting:  “The fact that General Statutes § 52-409 allows a court to enter a stay in a matter involving an arbitration agreement belies the ․ claim, and the trial court's implicit ruling, that an agreement to arbitrate ousts the court of its subject matter jurisdiction.   If the existence of an arbitration agreement in a contract implicated the court's jurisdiction to hear an action, then a court would, accordingly, not have jurisdiction to stay such a matter because, in the absence of jurisdiction, the court may only dismiss a matter.   In short, because the power to order a stay implies that the court has jurisdiction over a matter, the legislature could not have empowered the court to enter a stay in such a matter unless the court has jurisdiction over it.”   Catrini v. Erickson, 113 Conn.App. 195, 197, 967 A.2d 275 (2009).

Since the lack of subject matter jurisdiction is the only argument raised by the defendants regarding the arbitration clause, summary judgment must be denied on the special defense raising the arbitration clause.³

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The complaint alleges that the defendant negligently performed the home inspection August 23, 2004.   The plaintiff's affidavit in opposition to the motion for summary judgment states that the defendant began testing on August 23, 2004, continued it on August 25, 2004, and delivered the inspection report to the plaintiff on August 30, 2004.   Even the earliest possible date, August 23, 2004, is less than three years from the date that the writ, summons and complaint were delivered to the marshal..  FN1. The complaint alleges that the defendant negligently performed the home inspection August 23, 2004.   The plaintiff's affidavit in opposition to the motion for summary judgment states that the defendant began testing on August 23, 2004, continued it on August 25, 2004, and delivered the inspection report to the plaintiff on August 30, 2004.   Even the earliest possible date, August 23, 2004, is less than three years from the date that the writ, summons and complaint were delivered to the marshal.

FN2. The plaintiff's affidavit in opposition to the motion for summary judgment states that negligence was not discovered until October 2005..  FN2. The plaintiff's affidavit in opposition to the motion for summary judgment states that negligence was not discovered until October 2005.

FN3. The court also notes that a moving party properly raises an arbitration clause by filing a motion to stay and a motion to compel, pursuant to C.G.S. §§ 52-409 and 52-410, and by showing that he or she is ready and willing to proceed with arbitration..  FN3. The court also notes that a moving party properly raises an arbitration clause by filing a motion to stay and a motion to compel, pursuant to C.G.S. §§ 52-409 and 52-410, and by showing that he or she is ready and willing to proceed with arbitration.

Pickard, John W., J.