Stanley Einbinder et al. v. Petro, Inc. (2012)

MEMORANDUM OF DECISION

MOTION TO STRIKE

Pursuant to Practice Book § 10–39 et seq., the defendant, Petro, Inc., has filed a motion to strike Counts Five, Six, Seven, Nine, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen and Eighteen of the Amended Complaint, dated May 10, 2011.¹

The Amended Complaint contains eighteen counts.   Count Five and Six allege gross negligence/recklessness.   Count Seven alleges a violation of General Statutes § 22a–452.   Count Nine alleges negligence per se, General Statutes § 22a–430.   Count Twelve alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110(a)(4).   Count Thirteen alleges negligent misrepresentation.   Count Fourteen alleges reckless misrepresentation.   Count Fifteen alleges intentional misrepresentation.   Count Sixteen alleges a breach of the covenant of the duty of good faith and fair dealing.   Count Seventeen alleges a claim for common-law indemnification.   Count Eighteen alleges a claim for strict liability for an abnormally dangerous activity.

As to Counts Five and Six the defendant argues that Connecticut does not recognize a claim for “gross” negligence and the plaintiffs have failed to properly claims of recklessness.   In Count Seven the defendant argues the plaintiffs seek reimbursement for expenses which may not be recovered under General Statutes § 22a–452.   The defendant argues that in Count Nine, the plaintiffs are not within the class of persons whom General Statutes § 22a–430 is designed to protect and, thus, cannot bring a claim for negligence per se.   The defendant argues that Count Twelve fails to properly allege a claim under the Connecticut Unfair Trade Practices Act, General Statutes § 42–110b et seq.

As to Counts Thirteen and Fourteen, the defendant claims that the plaintiffs have failed to allege any misrepresentations of fact that can support claims of negligent and reckless misrepresentation.   The defendant argues that in Count Fifteen the plaintiffs have not only failed to allege misrepresentations of fact, but also have failed to sufficiently allege an action for intentional misrepresentation.   As to Count Sixteen, the defendant argues that the plaintiffs have failed to allege that Petro acted in bad faith in breach of the covenant of good faith and fair dealing.   Regarding Count Seventeen, the defendant claims the plaintiffs have not alleged they were joint tortfeasors with Petro, thus, precluding a claim for common-law indemnification.   Lastly, Count Eighteen, alleging strict liability, must fail because the provision of oil and servicing of furnaces is not an ultrahazardous activity.

Argument of the motion to strike occurred on November 21, 2011.   In considering the merits of the motion the court has reviewed each party's Memorandum of Law and a Supplemental Reply Memorandum filed by the defendant.²

I

The Claims

The allegations of the Amended Complaint set forth the basis of the plaintiffs' various claims.   The plaintiffs are the owners of real property located at 73 Beach Avenue, Milford, Connecticut.³  The defendant, Petro is in the business of fuel oil supply and delivery and services furnaces and heating units.   On January 6, 2009, Petro contacted Stanley Einbinder and arranged for a delivery of approximately 211 gallons of fuel oil to fill a 275 gallon above-ground oil storage tank located at the subject property.   At said time, the defendant performed maintenance service on the oil fueled furnace;  changed the oil filter, and restarted the furnace.

On January 8, 2009, the plaintiffs noticed an odor of oil permeating the cold residence at the property and discovered oil flowing from the filter.   On that date Petro responded to a call from the plaintiffs, and thereafter, the local fire department and the Connecticut Department of Environmental Protection (“DEP”) were called.   Petro, upon inspection, found that the furnace was not operational as the oil filter was leaking.   Petro removed and replaced the oil filter and called in a plumber and electrician to winterize the house.   Petro checked the oil tank and discovered that only 65 gallons of oil remained in the tank.   As a result, more than 200 gallons of heating fuel oil was lost and released into the surrounding environment.

The plaintiffs then hired the apportionment defendant Herbert Recovery Systems (“Herbert”) to engage in limited soil excavation from areas on the property.   Contaminated water was also pumped from the property in the crawlspace area.   Nonetheless, the plaintiffs claim that full remediation was not accomplished.   During 2009, the plaintiffs hired an additional company to perform more remediation efforts, including removing the furnace and periodically pumping contaminated water from the house and the property.   The oil smell, however, continued to permeate the house and its contents.   Subsequently, after requests by the plaintiffs, Petro, in July 2009 removed the contents of the house to continue remediation of the oil odors.   Remediation efforts have been ongoing to the date of the Amended Complaint.   These efforts have allegedly resulted in further damage to items remaining in the house and ultimately, the removal of the chimney at the subject property.

II

Standard of Law

“The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).   A motion to strike shall be granted if “the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law.”  Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).

A motion to strike “admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Emphasis omitted.)  Id. “A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts.”  Id. “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).   A motion to strike “is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged.”  (Internal quotation marks and citations omitted.)   Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541–50, 427 A.2d 822 (1980).

Upon deciding a motion to strike, the trial court must construe the “plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).  ‘The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail.”  Mingachos v. CBS, Inc., supra, 196 Conn. 108–09.   However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

III

DiscussionA.Counts Five and Six

Counts Five and Six allege actions for gross negligence and recklessness by Petro, relating to the delivery of heating fuel to the subject property and the winterization process at said property.   Count Six, respectively.⁴  In the Fifth Count after repeating claims for negligence, which were incorporated from other counts, the plaintiffs allege that Petro “intentionally, willfully, wantonly or maliciously created a dangerous condition showing indifference to the interests of the Einbinders” in several different ways.   The plaintiffs then allege that Petro's actions were “willful, wanton or reckless acts,” which caused the plaintiffs to suffer monetary damages, loss of the enjoyment of their home and emotional distress.   The Sixth Count repeats allegations of negligence from prior counts and allegations of recklessness from the Fifth Count.   The Sixth Count then alleges “gross negligence,” as well.

The defendant argues that the Fifth and Sixth Counts fail to sufficiently allege claims of recklessness, and further, Connecticut does not recognize the tort of gross negligence as a separate basis of liability.  Hanks v. Powder Ridge, 276 Conn. 314, 337, 885 A.2d 734 (2005);  Matthiessen v. Vanech, 266 Conn. 822, 833 n.10, 836 A.2d 394 (2003).  “[G]ross negligence has never been recognized in this state as a separate basis of liability in the law of torts.”  (Citations omitted.)  Matthiessen v. Vanech, supra, 266 Conn. 833 n.10. Therefore, as the defendant argues, the Fifth and Sixth Counts must be analyzed as to whether or not they sufficiently allege claims of recklessness.

“To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior.   Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.   The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Citations omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1003 (2003).  “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  Matthiessen v. Vanech, supra, 266 Conn. 832–33.

The plaintiffs argue that they have pleaded a very detailed complaint and have alleged recklessness.   They argue that Petro is in a regulated business of oil delivery and essentially knew a high degree of danger was apparent to the environment and the plaintiffs.   The plaintiffs rely on Craig v. Driscoll, supra, that “a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.”  Id., 343.   Thus, the plaintiffs argue their Amended Complaint is legally sufficient, despite the fact that Counts Five and Six closely mirror Counts One, Two and Three, all of which allege negligence.   See Id., 343 n.22.

The court is aware our Supreme Court's decision in Craig v. Driscoll, supra, 262 Conn. 312 and this court's obligation to apply that decision.   However, the court is also aware that the plaintiff's complaint in Craig contained allegations regarding a specific policy to continue to serve alcohol to a particular patron, who was known to have an excessive drinking problem, while that patron was already intoxicated, with the additional knowledge that the patron would be operating a motor vehicle upon leaving a bar.  Id., 343.   The plaintiff in Craig argued that it was that conduct which constituted wilful, wanton and reckless conduct sufficient to survive a motion to strike and our Supreme Court agreed that, as pleaded, the conduct alleged an extreme departure from ordinary care in a situation that involves a high degree of danger.  Id.

A review of Counts Five and Six reveals that after the paragraphs of the plaintiffs' negligence counts are incorporated, Counts Five and Six contain several additional paragraphs where the acts that were previously pleaded as negligent acts are now characterized as intentional, willful, wanton, reckless and malicious acts by the insertion of these magic words and little more.

The plaintiffs allege that the defendant failed to take appropriate action to:  (1) abate the loss of oil;  (2) contain the oil spill;  and (3) maintain the structural integrity of the house.   The defendants claim the defendants have damaged or destroyed [the] property and ignored and disregarded odors in the house.   In Count Six the plaintiffs additionally add that the defendant was indifferent to the plaintiffs' interests and well-being.   However, the plaintiffs have failed to allege that the defendant's conduct was highly unreasonable conduct, involving an “extreme departure from ordinary care in a situation where a high degree of danger is apparent ․” Id.

The court discerns a difference between the alleged negligent conduct in delivering heating fuel oil and the repair and servicing of furnaces and the reckless conduct of serving alcoholic beverages to an intoxicated person with a known excessive drinking problem when one knows the intoxicated person will be operating a motor vehicle.   Additionally, Petro's fuel oil business is not an abnormally dangerous or ultrahazardous activity as defined by Connecticut law.   The doctrine of ultrahazardous activity has traditionally been applied in cases involving blasting and explosives.  (Citations omitted.)  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 482–83, cert. denied 220 Conn. 919, 595 A.2d 1383 (1991).  “Connecticut's sole extension beyond blasting cases is to damage from a concussion resulting from pile driving.”  Id., 483;  Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 61 (1961).   The decision in Green v. Ensign–Bickford Co., supra, 25 Conn.App. 479, extended liability to an explosion during research experiments involving highly volatile chemicals.  Id., 482–83.

Connecticut trial court decisions have also concluded that the storage and delivery of oil is not an ultrahazardous activity.   Nelson v. Thomaston Oil, Inc., Superior Court, Judicial District of Litchfield at Litchfield, No. CV990078798S (Jul. 3, 2000, DiPentima, J.) 27 Conn. L. Rptr. 454, (“It is hard to imagine what, if any, harm could result from the delivery of home heating oil when reasonable care is exercised”) (“The usual dangers resulting from an activity that is one of common usage are not regarded as abnormal, even though a serious risk of harm cannot be eliminated by all reasonable care”);  see also, The Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford at Hartford, No. CV94–0535590S, (Mar. 4, 1996, Corradino, J.) 16 Conn. L. Rptr. 213.

In construing Counts Five and Six in a manner most favorable to sustaining its legal sufficiency the court, nonetheless, finds that the plaintiffs have failed to sufficiently plead actions in alleging recklessness.   The Fifth Count and the Sixth Count are ordered stricken.

B.

Count Seven

The Seventh Count alleges a violation of General Statutes § 22a–452.⁵  Count Seven incorporates paragraphs 1 through 60 of the Fifth Count.   The plaintiffs then allege the oil contamination of their property was the result of the negligence of the defendant.   They seek reimbursement for costs expended to investigate, contain, remove or mitigate the pollution and contamination of their real and personal property including consultant's costs and attorneys fees.   The defendant argues that while General Statutes § 22a–452 permits recovery of reasonable costs of remediation it does not provide for the recovery of attorneys fees.

Section 22a–452(a) provides in relevant part that:  “Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil ․ resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil ․ or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation.”

The plaintiffs rely on the decision in Etting v. Estate of McDermid, Superior Court, Judicial District of New Britain at New Britain No. CV07–5003868 (Jan. 8, 2009, Trombley, J.) for their argument that attorneys fees are recoverable pursuant to Section 22a–452.   A close inspection of Etting reveals that the count seeking an award of attorneys fees pursuant to Section 22a–452 was not the subject of the motion for summary judgment in that case.   Judge Trombley did state that “the statute also provides for the recovery of reasonable attorneys fees,” but undertakes no analysis of that issue.   Judge Trombley recites the language of Section 22a–452 in his decision.   Etting v. Estate of McDermid, supra, n.2. However, other than reciting the statute, Judge Trombley does not give any reason for his interpretation, especially in light of the absence of any such language in the statute.

The plaintiffs also cite in support of their position Augelli v. Matos, Superior Court, judicial district of Waterbury at Waterbury, No. CV01–0163496S (Jul. 29, 2003, Dubay, J.) 35 Conn. L. Rptr. 228.   A reading of Augelli reveals that Judge Dubay never undertook an analysis of whether a plaintiff can recover attorneys fees pursuant to Section 22a–452.   In Augelli, the defendants moved to strike count five, a claim for reimbursement pursuant to § 22a–452, on the ground that such claim failed to allege with specificity what costs, if any, the plaintiffs have incurred in remediating their property and because it seeks to recover costs which have yet to be incurred.   There was no discussion and no ruling by the court (Dubay, J.) regarding the ability to recover “attorneys fees.”

The plaintiffs' argument that attorneys fees are recoverable pursuant to § 22a–452 is misplaced.  “The common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”  (Internal quotation marks omitted.)  Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532 (2004).

The defendant has provided the court with two decisions that specifically discuss and analyze whether a plaintiff can recover attorneys fees pursuant to General Statute § 22a–452.   In Maiorino v. Desmarais & Sons, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. CV 98 0058440 (December 17, 1998, Sferrazza, J.), the defendant moved to strike the plaintiff's claim for attorneys fees pursuant to § 22a–452.   The plaintiffs' claim was contained both in the relevant count and the claim for relief.   In granting the motion to strike, the court reviewed the language of § 22a–452 and held that § 22a–452 permits recovery of “reasonable costs,” but “[n]o provision under that statute permits the court to include attorneys fees as part of this remediation reimbursement.”  Id. The court ordered the request for attorneys fees stricken from the count and the prayer for relief.  Id.

In Little Mountains Enter. v. Servco Oil, Superior Court, Judicial District of Danbury at Danbury, No. CV03–0350788 S (Mar. 15,2004, Moraghan, J.) 36 Conn. L. Rptr. 607 the court found that Section 22a–452 does not provide an exception to the general rule that attorneys fees are not allowed absent a statutory exception.   The court granted the striking of the claim for relief seeking attorneys fees.  Id. Therefore, the defendant's motion to strike the plaintiffs' request for attorneys fees from the seventh count is granted.

C.

Ninth Count

In the Ninth Count the plaintiffs allege a claim of negligence per se based on an alleged violation of General Statutes § 22a–430.   The Ninth Count incorporates paragraphs 1 through 48 of the Second Count (Negligence as to Oil Release) and adds five additional paragraphs.   The plaintiffs claim the defendant allowed and/or permitted a discharge of contaminants into state waters at the plaintiffs' property without a permit.   The plaintiffs allege they are within the class of persons that Section 22a–430 was designed to protect.

The defendant argues that because the sole enforcement of Section 22a–430 is vested in the Department of Environmental Protection, the plaintiffs are not within the class of persons whom the statute is designed to protect.   Therefore, the plaintiffs may not maintain a private right of action for a violation of the statute based on a theory of negligence per se.

In opposition, the plaintiffs argue they are not attempting to maintain a direct cause of action under Section 22a–430 and are not trying to enforce statutory remedies.   Rather, the plaintiffs argue that the defendant has failed to comply with the statutes and that a duty of care may derive from a statute.   Therefore, it follows that failure to comply with a statute is negligence per se.

In support of its counts alleging negligence per se, the plaintiff cites to the Connecticut Water Pollution Control Act (WPCA), General Statutes § 22a–422 et seq., specifically §§ 22a–430, claiming that these provisions provide a standard by which to measure the defendant's conduct.   The defendant seeks to strike Count 9, arguing that it is legally insufficient because the WPCA neither supports a private cause of action nor establishes standards of care the violation of which constitutes negligence per se.

The Appellate Courts have not ruled on whether a claim for negligence per se may be predicated on provisions of the WPCA, and there is a significant split of authority in the Superior Courts.   Those courts that decline to recognize a cause of action generally reason that the WPCA is a broad statutory scheme and does not provide standards sufficient to support a claim for negligence per se.   See. Etting v. Estate of McDermid, supra, Superior Court, Judicial District of New Britain at New Britain No. CV07–5003868 (Jan. 8, 2009, Trombley, J.);   Bourbeau v. Alpha Q., Inc., Superior Court, judicial district of Hartford, Docket No. CV 054015076 (Jun. 15, 2007, Miller, J.);   Cerretani v. Levco Tech, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0193735 (April 22, 2004, Adams, J.);   Augelli v. Matos, Superior Court, judicial district of Waterbury, CV 01 0163496 (July 29, 2003, Dubay, J.) (35 Conn. L. Rptr. 228);  Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford, Docket No. CV 94 0535590 (March 4, 1996, Corradino, J.) (16 Conn. L. Rptr. 213, 213–15) (striking a negligence per se claim under General Statutes §§ 22a–427, 22a–430 and 22a–450);  Chromium Process Co. v. Yankee Gas Service Co., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 92 038532 (Jun. 23, 1995, Comerford, J.) (granting summary judgment on a count alleging negligence per se under General Statutes §§ 22a–422, 22a–427, 22a–430 and 22a–450).   The basis of this reasoning is the conclusion by some Superior Courts that the WPCA does not provide a private cause of action.   Oink, Inc. v. Ann Street Limited Partnership, Superior Court, judicial district of Hartford, Docket No. CV 93 0532065 (October 18, 1994, Corradino, J.) (12 Conn. L. Rptr. 547);  Michael v. Kenyon Oil Company, Inc., 4 C.S.C.R. 337 (March 22, 1989, O'Connor, J.).   In Connecticut Water Co. v. Thomaston, supra, 16 Conn. L. Rptr. 213, the court held that a claim for negligence per se could not be predicated on the WPCA. The court relied upon Superior Court decisions that found that no private action could be maintained under the WPCA. Acknowledging that the inquiry as to whether the statute provided a private cause of action was analytically distinct from the inquiry as to whether the statute could serve as a basis for a claim of negligence per se, the court nonetheless reasoned that “to permit a negligence per se rule adopting administrative regulations is tantamount to saying there is a private cause of action under the statute.”  Id., 214.

The courts recognizing a cause of action for negligence per se based upon the WPCA rely on Gore v. People's Savings Bank, 235 Conn. 360, 381–82, 665 A.2d 1341 (1995).   In Gore, the Supreme Court gave negligence per se treatment to statutory requirements regarding the presence of lead paint in apartments.   “[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action.   It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions.   First, the plaintiff must be within the class of persons protected by the statute ․ Second, the injury must be of the type which the statute was intended to prevent.”  (Citations omitted;  internal quotation marks omitted.)  Gore v. People's Savings Bank, supra, 235 Conn. 375–76.   “Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct.   To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances.   They merely decide whether the relevant statute or regulation has been violated.   If it has, the defendant was negligent as a matter of law ․” (Citation omitted;  internal quotation marks omitted.)  Id., 376.   Noting that “[t]he majority of cases concluding that a statutory provision implicates the doctrine of negligence per se have arisen in the context of motor vehicle regulation,” the court held that nevertheless, “[s]uch a history ․ should not be read to suggest that the negligence per se doctrine is relevant only in the context of statutes pertaining to motor vehicles.”  Id. The court pointed out that in Panaroni v. Johnson, 158 Conn. 92, 100–02, 256 A.2d 246 (1969), it “concluded that the trial court had not improperly charged the jury that certain provisions of the New Haven housing code imposed an affirmative duty on the landlord, beyond the requirements of the common law, the violation of which gave rise to civil liability.”  Id.

Courts recognizing a cause of action have relied upon the above language in determining that a plaintiff can state a claim for negligence per se under the standards in the WPCA. See Oxford Bd. Of Education v. Environ Consult., Superior Court, judicial district of Waterbury at Waterbury, No. CV08–5011175S (Mar. 12, 2010, Gallagher, J.);   Hamm v. Laidlaw Transit, Superior Court Judicial District of Litchfield at Litchfield, No. LLI CV 07 5002427S (Aug. 20, 2008, Pickard, J.) 46 Conn. L. Rptr. 153;  Putnam v. County Environmental Services, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98 166445 (July 12, 2000, D'Andrea, J.) (27 Conn. L. Rptr. 684) (holding that plaintiffs properly pleaded a sustainable negligence per se cause of action pursuant to § 22a–452);  Accashian v. Danbury, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 97 0147228 (January 6, 1999, Hodgson, J.) (23 Conn. L. Rptr. 648);  Walker v. Barrett, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0169673 (November 8, 1999, D'Andrea, J.) (25 Conn. L. Rptr. 665);  Goodrich v. Jennings, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 96 150074 (May 22, 1997, Mintz, J.) (19 Conn. L. Rptr. 544);  Blackburn v. Miller–Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J.) (13 Conn. L. Rptr. 364);  see also Sundaram v. Kenyon Oil Co., Superior Court, judicial district of Danbury, Docket No. CV 04 0352014 (November 4, 2004, Nadeau, J.) [38 Conn. L. Rptr. 204];  French Putnam, LLC v. County Environmental Systems, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV980166445 (July 21, 2000, D'Andrea, J.) (27 Conn. L. Rptr. 684).

The decisions of the trial court on both sides of this issue are well-reasoned.   The court however, finds the decisions that have declined to allow negligence per se claims based on various provisions of the Water Pollution Control Act more persuasive and agrees with their use of judicial restraint given the “broad, almost standardless, language of Sections 22a–427 and 430.”   See Cerretani v. Levco Tech, Inc., supra, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0193735 (April 22, 2004, Adams, J.).  General Statutes § 22a–430 does not create a private right of action.   That its purpose is regulatory and that the sole authority to initiate legal action thereunder is conferred upon the Commissioner of Environmental Protection.   Count Nine is ordered stricken.

D.

Count Twelve

Count Twelve alleges violations of the Connecticut Unfair Trade Practices Act (“CUTPA”) General Statutes § 42–110 et seq.   The Twelfth Count incorporates paragraphs of the Third Count alleging negligence and the Eleventh Count alleging negligent infliction of emotional distress.   The plaintiffs allege Petro was engaged in the conduct of trade or commerce and the plaintiffs were consumers of Petro's services, labor and materials insofar as Petro “advertised, sold, leased and/or distributed its services and property to the plaintiffs, or otherwise failed to perform services ․” The plaintiffs allege Petro engaged in false, misleading and deceptive representations of material facts which Petro knew were reckless, and that Petro had an obligation to disclose to the plaintiffs that it was not capable of performing proper winterization, remediation and customary oil services at the property.   As a result of the defendant's alleged unfair and deceptive practices, the plaintiffs claim they have sustained costs, expenses and ascertainable losses.

The defendant argues that the plaintiffs have not recited any conduct alleging a violation of CUTPA other than alleged misrepresentations of material facts, but the plaintiffs have not identified any such misrepresentations upon which the plaintiffs could have relied.   The defendant directs the court to paragraphs 14 and 22.   In paragraph 14, the plaintiffs allege that “Petro ․ confirmed to the Einbinders that the fuel oil filter failed due to a gasket that was twisted by the Petro serviceman when the oil filter was replaced on January 6, 2009.”   In paragraph 22, the plaintiffs allege “[a] Petro representative admitted to Stanley Einbinder that it knew that the oil odors would permeate the house and contents of the house and Petro failed to promptly remove the personal property and take mitigation measures to prevent the oil from saturating the structure of the house.”   The defendants claim all other allegations are of negligent conduct by Petro, as no other allegations of misrepresentations are alleged.   Thus, without any factual allegations of misrepresentations, the plaintiffs are left with a claim that the defendant negligently violated CUTPA, and negligence alone is not sufficient to impose liability under CUTPA.   See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).

“In determining whether a practice violates CUTPA, we use the following criteria:  ‘(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].’   Thus, a violation of CUTPA may be established by showing either an actual deceptive practice;  or a practice amounting to a violation of public policy.”  (Citations omitted and internal quotations marks omitted.)  Daddona v. Mobile Home Sales, 209 Conn. 243, 254, 550 A.2d 1061 (1988);  Blackwell v. Mahmood, 120 Conn.App. 690, 992 A.2d 1219 (2010).

The plaintiff must plead sufficient facts to support three elements in order to state a claim under CUTPA for deceptive practices.  “First, there must be a representation, omission, or other practice likely to mislead consumers.   Second, the consumers must interpret the message reasonably under the circumstances.   Third, the misleading representation, omission, or practice must be material—that is, likely to affect consumer decisions or conduct.”   Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1099 (1991).  “CUTPA embraces a broader standard of conduct more flexible than traditional common law claims and does not require proof of intent to deceive, to mislead or to defraud.”  Associated Investment Co. Ltd. Partnership v. William Associates IV, 230 Conn. 148, 158, 645 A.2d 505 (1994);  Muniz v. Kravis, 59 Conn.App. 704, 713, 757 A.2d 1207 (2000).  “A violation may be established by showing either an actual deceptive practice or a practice that violates public policy.”  Id., 156.

Utilizing the standard of law governing a motion to strike that the court should interpret plaintiffs' complaint in a manner most favorable to sustaining its legal sufficiency, Bouchard v. People's Bank, supra, 219 Conn. 471.   The instant motion is not a motion for summary judgment.   The defendant still has the discovery process as a method to flesh out the substance of the plaintiffs' allegations.   The court agrees that the plaintiffs have alleged sufficient facts to support a cause of action for a CUTPA violation.   The plaintiffs have alleged that the defendant has made false representations of material facts that were misleading and deceptive and failed to disclose material facts, which the defendant had an obligation to disclose, in that it was not capable to performing the oil services and remediation services required.   The plaintiffs have alleged they relied on the misrepresentation of material facts to their detriment, and they as a result were injured.   The motion to strike the Twelfth Count alleging a violation of CUTPA is denied.

E.

Counts Thirteen, Fourteen and Fifteen

The defendant also moves to strike Counts Thirteen, Fourteen and Fifteen alleging negligent misrepresentation, reckless misrepresentation and intentional misrepresentation, respectively.   The plaintiff argues that these counts suffer from the same deficiency as Count Twelve, in that they fail to allege any misrepresentation of fact.   Additionally, the defendant argues that the Fifteenth Count does not allege intentional conduct;  rather the plaintiffs allege that Petro acted negligently.

It is noted that these counts incorporate the allegations contained in the Twelfth Count.   The Thirteenth Count alleges additional paragraphs that alleged misrepresentations were negligent;  that the plaintiffs relied to their detriment on these misrepresentation and suffered damages;  and that the plaintiffs were harmed.   The Fourteenth Count alleges that the plaintiff recklessly made representations without an adequate factual basis that Petro knew or should have known were false with the intent to defraud the plaintiffs.   The plaintiffs allege they relied on these representations to their detriment, have been harmed and have suffered damages.   The Fifteenth Count alleges the defendant “intentionally ” made these representations “negligently ” (Emphasis added) without an adequate factual basis to induce the plaintiffs to rely on them.   The plaintiffs further allege “Petro acted negligently in disregard of the plaintiffs' rights.”  (Emphasis added.)

The plaintiffs, in opposition, incorporate the arguments they presented in opposing the motion to strike the Twelfth Count alleging a CUTPA violation.   As to the Fifteenth Count, alleging intentional misrepresentation, the plaintiffs rely upon the wording of paragraph 66 that “Petro intentionally made these representations negligently and/or without factual basis to induce the plaintiffs to rely upon Petro's representations.”   It is the plaintiffs' position that they have alleged intentional misrepresentations and “whether these misrepresentations were made negligently is inconsequential insofar as plaintiffs have alleged the defendant ․ intentionally misrepresented material facts.

Our courts have long recognized liability for negligent misrepresentation.   “One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”  (Emphasis added;  internal quotation marks omitted.)  Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004);  Petitte v. DSL Net, Inc., 102 Conn.App. 363, 372, 925 A.2d 457 (2007).

Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.  Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626 (2006) 910 A.2d 209;  Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005);  Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007).

Since the rule of liability is based upon negligence, the defendant is subject to liability if, but only if, has failed to exercise the care or competence of a reasonable person in obtaining or communicating the information.   3 Restatement (Second) Torts § 552, comment (e), p. 130 (1977).  “Whether evidence supports a claim of ․ negligent misrepresentation is a question of fact.”  (Citations omitted.)  (Internal quotation marks omitted.)   Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 201–02.   “Proving a false representation is, however, only one part of a claim of actionable misrepresentation.   To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation.”  Visconti v. Pepper Partners LTD Partnership, 77 Conn.App. 675, 682–83, 825 A.2d 210 (2003);  Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995);  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218, 520 A.2d 217 (1987);  3 Restatement (Second) Torts § 552, pp. 126–27 (1977).

“A claim of reckless or intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation ‘to induce the other party to act upon it.’  Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995).   Reckless misrepresentation requires ‘[t]he intent to defraud.’  DeLuca v. C.W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978).”   Studio Zee, LLC v. The Edge Tattoo Co., Superior Court, judicial district of New Haven, Docket No. CV 01 0449758 (March 25, 2002, Zoarski, J.T.R.) (31 Conn. L. Rptr. 701, 702–03).  “[A] fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it ․ [A]t common law, fraudulent misrepresentation and intentional misrepresentation are the same tort.”   (Citation omitted;  emphasis added;  internal quotation marks omitted.).   Kramer v. Petisi, 285 Conn. 674, 684 n. 9, 940 A.2d 800 (2008).   “ ‘Intentional misrepresentation is synonymous with fraudulent misrepresentation.’   St. Denis v. DeToledo, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 00 0180606 (April 5, 2002).   ‘The essential elements of an action in [fraudulent or intentional misrepresentation] are (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.’  (Internal quotation marks omitted.)  Cadle Co. v. Ginsberg, 70 Conn.App. 748, 769, 802 A.2d 137 (2002).”   Kenney v. McClatchie, Superior Court, Judicial District of New Haven, Docket No. CV 01 0450368 (May 6, 2003).   In contrast to a negligent misrepresentation, ‘[a] fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it.’  “ Clark v. Haggard, 141 Conn. 668, 673, 109 A.2d 358 (1954).

The court in applying its stated reasons for denying the motion to strike Count Twelve, denies the motion to strike, as to the Thirteenth and Fourteenth Counts.   As to the Fifteenth Count, the plaintiffs have alleged the defendant “intentionally ” made these representations “negligently.”   The plaintiffs have sufficiently placed the defendant on notice of their intent to pursue a claim for intentional misrepresentation.   The motion to strike the Fifteenth Count is also denied.

F.

Sixteenth Count

The defendant has moved to strike the Sixteenth Count alleging a breach of the duty of good faith and fair dealing.   The defendant argues that the plaintiffs have not alleged that it acted in bad faith, and they have not claimed the defendant's actions were fraudulent;  were designed to mislead the plaintiffs;  or based on an interested or sinister motive.   The defendant argue that the plaintiffs have merely alleged a breach of contract and that this breach violated the duty of good faith and fair dealing.

The plaintiffs, in opposition, argue that a fair reading of the Fourth Count not only alleges breach of contract, but further alleges that the breach was the result of bad faith, misrepresentations, objection and delay, evasiveness, non-responsiveness and failure to remedy pollution.   The plaintiffs argue that they have clearly put the defendant on notice of the plaintiffs' claim that the breach of contract was not a mere mistake.

The Sixteenth Count incorporates 50 paragraphs of the Fourth Count alleging breach of contract.   The Sixteenth Count contains two additional paragraphs.   Paragraph 51 states:  “By engaging in the aforementioned conduct, Petro has violated its duty of good faith and fair dealing with the Einbinders.”   Paragraph 52 alleges the plaintiffs have been damaged.   These two paragraphs on their face do not set forth an action for breach of the duty of good faith and fair dealing.   A review of the allegations in Count Four (breach of contract) which constitute the initial 50 paragraphs of Count Sixteen will be required.

The defendant argues that the plaintiffs have not alleged that it acted in bad faith, and they have not claimed the defendant's actions were fraudulent;  were designed to mislead the plaintiffs;  or based on an interested or sinister motive.   The defendant argue that the plaintiffs have merely alleged a breach of contract and that this breach violated the duty of good faith and fair dealing.  “[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.   In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.   The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term,” (Internal quotation marks omitted.)  (Internal citations and quotation marks omitted.)  De La Concha of Hartford v. Aetna Life Ins., 269 Conn. 424, 442–43, 849 A.2d 382 (2004).

“To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  Id.;  Alexandru v. Strong, 81 Conn.App. 68, 80–81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004), citing Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996).  “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Citation omitted.)  19 Perry Street, LLC v. Unionville Water Company, 294 Conn. 611, 637, 987 A.2d 1009 (2010).

“Though the weight of authority seems to be on the side of recognizing a duty of good faith, there is no consensus about what that duty requires.”  PSE Consulting, Inc., v. Frank Mercede and Sons, Inc., 267 Conn. 279, 302, 838 A.2d 135 (2004).  “The majority of courts agree that the principal must establish something more than mere negligence to prove bad faith.”  Id., 302–03.   “[W]e join those jurisdictions that define bad faith as requiring an “improper motive” or “dishonest purpose ․” Id., 304–05.  “Whether a party has acted in bad faith is a question of fact ․” Renaissance Mgt. Co. v. Connecticut Hous. Fin. Auth., 281 Conn. 227, 240, 915 A.2d 290 (2007).

“In order to prevail on a claim of bad faith, it is necessary for the complaint to allege a specific act that was performed purposefully, with a sinister intent ․ Even if it was found that there was a breach of contract, not all contracts are breached with a sinister intent.”   Namoury v. Tibbetts, United States District Court for the District of Connecticut, Docket No. 3:04 CV 599 (January 11, 2005).  “Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive.”  Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993).  “The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud.”   Ravski v. Connecticut State Medical Society, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 04 4000582 (January 26, 2005, Sheedy, J.).

The Fourth Count incorporates the 42 paragraphs of the First Count alleging carelessness and negligence as to oil service.   The Fourth Count then alleges eight more paragraphs alleging breach of contractual duties.   The Sixteenth count then adds the two additional paragraphs claiming only that they have been damaged and that the defendant has breached the covenant of good faith and fair dealing.

“[T]he interpretation of pleadings is always a question of law for the court ․ The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ Although essential allegations may not be supplied by conjecture or remote implication;  the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.   As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.”  (Internal citations and internal quotation marks omitted.)  Dornfried v. October Twenty–Four, Inc., 230 Conn. 622, 629–30, 646 A.2d 772 (1994).

The court's review of the First and Fourth Counts and the additional two new paragraphs that, in total, constitute the allegations in the Sixteenth Count reveals that the plaintiffs have not sufficiently pleaded a cause of action sounding in bad faith.   While paragraph 27 alleges a “pattern of delay and objection” to the plaintiffs' requests for the development of a Remedial Action Plan, this allegation does not equate to a sinister motive, deception and fraud, which are lynchpins of a bad faith claim.   Count Sixteen is ordered stricken.

G.

Count Seventeen

The defendant moves to strike Count Seventeen purportedly alleging a cause of action for common-law indemnification.   Count Seventeen incorporates 53 paragraphs of Count Three, alleging negligence as to winterization.   Count Seventeen then adds three more paragraphs regarding negligence and concludes with paragraph 57.   Paragraph 57 reads as follows:

“As a result of Petro's carelessness and negligence, the plaintiffs are entitled to reimbursement from Petro for their reasonable costs expended to repair and/or restore their real and personal property located at the property, and will continue to suffer losses and damages including, but not limited to, contractor costs, attorneys fees and consulting fees associated with the property.”

The defendant argues that because an action for common-law indemnification only lies between two tortfeasors, the plaintiffs' claim is legally insufficient.   The defendant notes that the plaintiffs have not alleged they were joint tortfeasors with Petro;  nor do they allege the necessary active passive negligence of the two parties.  “[T]ortious indemnification is an action that arises between two tortfeasors, one, whose passive negligence resulted in a monetary recovery by the plaintiff;  and a second, whose active negligence renders him liable to the first by way of reimbursement.”  (Citation omitted, internal quotation marks omitted.)  ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 551, 935 A.2d 115 (2007).

The plaintiffs argue they have become obligated to pay for remediation costs for the contaminated property, as the owner of the property because the Department of Environmental Protection (“DEP”) has been placed on notice of the contamination caused by Petro's negligence.   The Amended Complaint alleges that the DEP was called on January 8, 2009, when the plaintiffs noticed the odor of oil and the leaking oil filter.   It is unclear as to who called the DEP.

There is no allegation that any action is pending against the plaintiffs, as tortfeasors, by the DEP or any other party.   The plaintiffs have not directed the court to any case law that challenges the proposition that common-law indemnification is available only between joint tortfeasors.   That the plaintiffs may have become obligated to pay their own contractor costs, attorneys fees and consulting fees does not change their status to one of a joint tortfeasor.   Whether the plaintiffs attain the status of a tortfeasor in a subsequent action by DEP or others is speculative at this time.   The motion to strike Count Seventeen is granted.

H.

Count Eighteen

Count Nineteen sounds in strict liability for an abnormally dangerous activity.   The defendant argues that courts have concluded that the storage and delivery of heating oil is not an ultrahazardous activity.   The plaintiffs claim that when the provision of oil, the servicing of furnaces cause a release of oil and petroleum products into the environment, whether it is an ultrahazardous activity is a question of fact that cannot be resolved on a motion to strike.

The court addressed the issue of ultrahazardous activity earlier herein when analyzing Counts Five and Six. The court re-states its finding that the doctrine of ultrahazardous activity has traditionally been applied in cases involving blasting and explosives.  (Citations omitted.)  Green v. Ensign–Bickford Co., supra, 25 Conn.App. 482–83.  “Connecticut's sole extension beyond blasting cases is to damage from a concussion resulting from pile driving.”   Id., 483;  Caporale v. C.W. Blakeslee & Sons, Inc., supra, 149 Conn. 85.   The decision in Green v. Ensign–Bickford Co., supra, 25 Conn.App. 479, extended liability to an explosion during research experiments involving highly volatile chemicals.  Id., 482–83.   The court is unwilling to expand the definition of ultrahazardous activity beyond those limited activities set forth by our Supreme Court and Appellate Court.   See Green v. Ensign–Bickford Co., supra, 25 Conn.App. 479, and Caporale v. C.W. Blakeslee & Sons, Inc., supra, 149 Conn. 79.   The motion to strike Count Eighteen is granted.

Summary of Orders

In accordance with the reasons set forth herein, Counts Five, Six, Nine, Sixteen, Seventeen and Eighteen are ordered stricken.   That portion of Count Seven seeking a recovery of attorneys fees is also ordered stricken.   The motion to strike is denied as to Counts Twelve, Thirteen, Fourteen and Fifteen.

THE COURT

By Judge Richard E. Arnold

FOOTNOTES

FN1. The plaintiffs are Stanley Einbinder and Roslyn Einbinder.   The defendant is Petro, Inc. Herbert Recovery Systems, Inc. is an apportionment defendant.   Reference in this decision to the plaintiffs includes the Einbinders.   Reference to the defendant is directed to Petro, Inc. only..  FN1. The plaintiffs are Stanley Einbinder and Roslyn Einbinder.   The defendant is Petro, Inc. Herbert Recovery Systems, Inc. is an apportionment defendant.   Reference in this decision to the plaintiffs includes the Einbinders.   Reference to the defendant is directed to Petro, Inc. only.

FN2. The defendant does not move to strike any of the plaintiffs' prayers for relief.   The court, therefore will not address the plaintiffs' corresponding prayers for relief..  FN2. The defendant does not move to strike any of the plaintiffs' prayers for relief.   The court, therefore will not address the plaintiffs' corresponding prayers for relief.

FN3. The subject property is a waterfront residence..  FN3. The subject property is a waterfront residence.

FN4. The Amended Complaint sets forth “Facts Common to All Counts,” containing thirty-four paragraphs.   The Fifth Count incorporates each of these paragraphs and nineteen additional paragraphs from other various counts.   The plaintiffs then allege seven additional paragraphs for a total of 60 paragraphs for the Fifth Count.   The Sixth Count incorporates the sixty paragraphs from the Fifth Count and four additional paragraphs for a total of sixty-four paragraphs in the Sixth Count.   The first fifty-three paragraphs of Fifth Count and the Sixth Count are allegations relating solely to negligence and have been incorporated from other counts..  FN4. The Amended Complaint sets forth “Facts Common to All Counts,” containing thirty-four paragraphs.   The Fifth Count incorporates each of these paragraphs and nineteen additional paragraphs from other various counts.   The plaintiffs then allege seven additional paragraphs for a total of 60 paragraphs for the Fifth Count.   The Sixth Count incorporates the sixty paragraphs from the Fifth Count and four additional paragraphs for a total of sixty-four paragraphs in the Sixth Count.   The first fifty-three paragraphs of Fifth Count and the Sixth Count are allegations relating solely to negligence and have been incorporated from other counts.

FN5. General Statutes § 22–452 regarding reimbursement for containment costs, removal and liability for certain acts or omissions reads as follows:(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation.   When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, other than a discharge of oil as defined in section 22a–457b, to the surface waters of the state, or which assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for civil damages as a result of any act or omission by him in rendering such assistance or advice, except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless he is compensated for such assistance or advice for more than actual expenses.   For the purpose of this subsection, “discharge” means spillage, uncontrolled loss, seepage or filtration and “hazardous materials” means any material or substance designated as such by any state or federal law or regulation.(c) The immunity provided in this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle..  FN5. General Statutes § 22–452 regarding reimbursement for containment costs, removal and liability for certain acts or omissions reads as follows:(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation.   When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, other than a discharge of oil as defined in section 22a–457b, to the surface waters of the state, or which assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for civil damages as a result of any act or omission by him in rendering such assistance or advice, except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless he is compensated for such assistance or advice for more than actual expenses.   For the purpose of this subsection, “discharge” means spillage, uncontrolled loss, seepage or filtration and “hazardous materials” means any material or substance designated as such by any state or federal law or regulation.(c) The immunity provided in this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle.

Arnold, Richard E., J.