Biller Associates Tri-State v. Trevor Foster (2010)

MEMORANDUM OF DECISION

STATEMENT OF THE CASE

The plaintiff, a licensed public adjuster, seeks to recover for services rendered the defendant in connection with a fire loss the defendant suffered on or about November 25, 2007.

The subject property was located at 466-68 Stanley Street in New Britain.   The parties executed a written contract on November 26, 2007.

The defendant does not deny hiring the plaintiff but interposes a special defense which would negate their contract and has filed a counterclaim sounding in misrepresentation.   Two counts of that counterclaim have been ordered stricken.

DISCUSSION

I

The defendant acknowledges signing the employment contract and a subsequent agreement in which he admits the claimed indebtedness and outlines the payment process.   In brief, the defendant admits to being a party to the transactions as outlined by the plaintiff.

His defense to the plaintiff's breach of contract claim is that he was led to believe that the plaintiff would recover sufficient funds from the carrier to cover the plaintiff's fee.

However, he is unable to explain his voluntary acts in executing Exhibit 4 and in endorsing the check from the carrier.   In Exhibit 4, he acknowledges the plaintiff's fee and goes on to admit the carrier's check has been received and he agrees to make two equal payments to the plaintiff to cover that fee.

He also admitted that he stopped payment on those checks.

The defendant's testimony as to this matter is not credible.   He stated he expected the carrier to pay the plaintiff, that the recovery would be high enough to pay the plaintiff and leave him whole - despite the fact that his coverage was woefully inadequate.

Equally unpersuasive is the claim that a plaintiff's employee assured him the recovery would be sufficient to accomplish all of the above.

The plaintiff has presented a solid picture, supporting its claim with uncontroverted evidence.

Judgment may enter for the plaintiff on the first count, breach of contract, in the amount of $19,214.96.   The counts sounding in conversion, misappropriation and civil theft are rejected as not applicable.   However, the defendant's failure to honor his agreement and his totally unsupported claims warrant attention.   The plaintiff is therefore awarded pre-judgment interest starting from March 24, 2008, the date the defendant signed the agreement to pay, to the date hereof at the rate of 6% per annum.   This would appear to be $1977.14.

II

The defendant argues that Exhibit 4, in which he admits owing the plaintiff $19,214.96 and agrees to a payment plan, is really a private adjuster employment contract.

Since it does not conform to the requirements of CGS § 38a-724, he asks the court to treat it as unenforceable.

The court declines to make this incredible leap from reality.   Exhibit 1 is a properly executed contract adhering to the statutory requirements.   Exhibit 4 is clear in its meaning and intent.   The court rejects the theory so advanced.

CONCLUSION

Judgment may enter for $21,192.10

The plaintiff is awarded taxable costs and post-judgment interest.

Anthony V. DeMayo

Judge Trial Referee

DeMayo, Anthony V., J.T.R.