Amica Mutual Insurance Co. v. LLC (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (178.00)

I. Background

The plaintiff Amica Mutual Insurance Co. (Amica) and apportionment defendant Wayne Jervis move for summary judgment.   In this case Amica, as subrogee of Wayne and Heath Jervis, has sued the defendant Fassarella Pro Painting & Design, LLC (Fassarella) for a large amount of damages caused by fire to a residence located at 59 Catrock Road in Greenwich, Connecticut, benefically owned by Mr. and Mrs. Jervis and insured by Amica, which occurred while Fassarella was in the process of staining the building.   In its answer, Fassarella asserts a special defense that Wayne Jervis was negligent in the following ways:

“(a) he failed to properly execute the duties of general contractor in overseeing the work performed by his subcontractors;

(b) he failed to retain and/or hire a qualified professional general contractor to oversee the work performed by subcontractors on site;

(c) he failed to properly supervise the work of subcontractors on site, including but not limited to the proper use, storage and/or disposal of the materials alleged to have spontaneously combusted;

(d) he failed to properly inspect the work site for safety hazards, including but not limited to the allegedly improperly stored and/or disposed of materials

(e) he failed to properly detect, contain, and/or remove the alleged safety hazard from the site;

(f) he failed to ensure that subcontractors he retained were properly trained and/or knowledgeable in the use of hazardous material such as those alleged to have spontaneously combusted;

(g) he failed to be present on site as the general contractor while the work was being performed to inspect and supervise the work and detect any potential hazards on site.”

Fassarella also served an apportionment complaint on Jervis making exactly the same allegations of negligence.   The summary judgment motion seeks to dismiss the above special defense against Amica's claim as well as the apportionment complaint against Jervis.   The negligence claim against Fassarella essentially states that Fassarella failed to heed the directions of the manufacturer of the stain being used as to proper storage and disposal of the product, and the failure led to a spontaneously combusted fire.

The court heard argument on this motion on January 23, 2012 and has read the moving and reply papers including an affidavit with exhibits and deposition of Jervis, and the deposition of Jaoa Fassarella.   The court has also read the opposition papers by Fassarella and the transcript of testimony by Jervis in Superior Court on September 29, 2010 in another civil action.

II. Standard of Review

Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co., v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd., Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The court is persuaded by the facts and arguments presented in the moving papers of Amica and Jervis that Fassarella was an independent contractor and that Fassarella's contract with Jervis (attached to the Jervis affidavit) did not impose any duties to supervise or direct Fassarella, or any other duties, on Jervis.   The contract directed Fassarella to use the stain in accordance with the manufacturer's directions.   The court is also persuaded by the testimony of Fasarella in his deposition to the same effect and that he, Fasarella had the responsibility to supervise and direct the work he was undertaking.   Fassarella also testified that he was responsible for the control, direction and successful completion of the job and he only saw Jervis on the first day of the job and again when Jervis to chose the color of the stain.   Therefore, there is no evidence to support the allegations of the special defense or apportionment complaint quoted above to the effect that Jervis was negligent in not supervising or directing of Fassarella, an independent contractor.

Fassarella contends there are unresolved questions of material fact that preclude summary judgment.   Fassarella testified that Jervis told him to store the materials and equipment he left on site under the back deck.   Jervis states he had no conversations with Fassarella about storage or cleaning the site after the contract was signed.   If this is a dispute, it is not about a relevant material or fact.   The allegations against Fassarella are that he did not follow manufacturer's directions as to how to store and dispose the staining product;  the issue is not where the product was stored.

Fassarella contends that Jervis has admitted he was responsible for overseeing the renovations at 59 Catrock Road in testimony he gave in Superior Court on September 29, 2010 in an unrelated action Catrock Nominee Trust v. Frank Coscarella, CV 08 5009240.   Specifically, he was asked the following question and gave the following answer:

Q. “And who was the individual responsible for the day-to-day operations of the renovations in terms of seeing that the work was done appropriately, making sure payments were made;  who was responsible for that?”

A. (By Jervis) “Me. Or, I was responsible.”

Defendant Fassarella Opposition Memorandum, Exhibit A, pp. 1–2.   This testimony was given in another case involving work done, or not done, during the renovations at 59 Catrock Road. The defendant was another painter hired to do interior painting who also was listed as general contractor of the project until he stopped working.  Id., 5. The testimony is not relevant to the issues in this case in that question limited itself to responsibility for seeing that work was completed appropriately and making payments.   Jervis' answer does not put him in the position of supervising how the work was accomplished or overseeing whether the materials were used correctly.

IV. Conclusion

The motion for summary judgments is granted, and the special defense and apportionment complaint are dismissed.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.