Patrick Garvy et al. v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 136)

FACTS

On July 7, 2010, the plaintiffs, Patrick and Sheila Garvy (the Garvys), filed a seven-count complaint against the defendant/apportionment plaintiff, The Signature Gordon, LLC (Signature), a residential real estate developer.   The complaint alleges that the Garvys and Signature had contracted for the construction and sale of a new home at 11 Old Powder Hill Road (the Old Powder Hill property) in the town of Durham.   The complaint further alleges several causes of action against Signature, including breach of contract, breaches of express and implied warranties, negligence, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.

On December 10, 2010, Signature brought a claim for apportionment pursuant to General Statutes §§ 52–102b and 52–572h against the apportionment defendant, Bascom & Benjamin, LLC (Bascom), a land surveyor alleged to have performed services on the Old Powder Hill property, along with other construction contractors.   As relevant to the present motion, the apportionment complaint alleges that Signature entered into an agreement for Bascom to provide engineering services on the Old Powder Hill property.   The apportionment complaint further alleges that construction defects and resultant damages alleged in the underlying complaint were the result of Bascom's negligence and that Bascom is, thus, liable for the claim of damages in the underlying complaint.¹

On March 15, 2011, Bascom moved to dismiss the apportionment complaint on the ground that the court lacks subject matter jurisdiction.   Signature objected thereto on April 14, 2011, and the matter was heard at the short calendar on April 25, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

“In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”   Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).   “Because the jurisdiction that a court has over an apportionment complaint involves subject matter jurisdiction, a motion to dismiss is the appropriate vehicle for the apportionment [defendant] to have raised [its claim].   See Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, 660, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004).”   New Canaan v. Brooks Laboratories, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 05 4006797 (August 18, 2006, Lewis, J.) [41 Conn. L. Rptr. 861].

Bascom argues that the court lacks subject matter jurisdiction over the apportionment complaint.   Specifically, Bascom contends that the apportionment complaint alleges a “purely commercial loss” and thus fails to fall within the scope of General Statutes § 52–572h.   Signature objects, arguing that the court maintains jurisdiction over the apportionment claim pursuant to §§ 52–102b and 52–572h because the underlying complaint alleges physical damage to the Old Powder Hill property.

“[Section] 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.’   “ Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 792–93, 756 A.2d 237 (2000), quoting § 52–102b(f).

Section 52–102b(a) provides in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability ․ The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52–572h.”

Section 52–572h(c) provides in relevant part:  “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused 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 ․”

The phrase “damage to property” in § 52–572h is construed “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 as opposed to damages for personal injury.”  Williams Ford Inc. v. Hanford Courant Co., 232 Conn. 559, 583, 657 A.2d 212 (1995).   Damage to property under § 52–572h does not include “commercial losses, unaccompanied by damages to or loss of the use of some tangible property.”  Id., 581;  see also Borman v. Wheeler Real Estate, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5007830 (June 22, 2009, Pavia, J.) [48 Conn. L. Rptr. 97] (“The damage to property requirement can be satisfied ․ if the relevant allegations include physical damage or loss of use of tangible property”).

Here, count four of the underlying complaint alleges physical damage to tangible property as a result of Signature's negligence.   Specifically, the complaint alleges water intrusion damage, damage to interior walls, driveway washout damage, destruction of exterior wood siding and bowing of a garage wall.   As the underlying complaint alleges damage to tangible property as a result of negligence, the apportionment complaint falls within the ambit of §§ 52–572h and 52–102b.   Accordingly, this court maintains subject matter jurisdiction over the apportionment claim and therefore Bascom's motion to dismiss is denied.

Wilson, J.

FOOTNOTES

FN1. The Garvys filed an amended complaint on February 18, 2011 adding direct negligence counts against each of the apportionment defendants.   The first through seventh counts of the amended complaint are identical to those in the original complaint..  FN1. The Garvys filed an amended complaint on February 18, 2011 adding direct negligence counts against each of the apportionment defendants.   The first through seventh counts of the amended complaint are identical to those in the original complaint.

Wilson, Robin L., J.