City of Hartford v. LLC (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE

I. NATURE OF THE PROCEEDINGS

This action arises from a contract between the City of Hartford (“the City”) and defendant Errol & Vincent, LLC (hereinafter “Errol & Vincent”) for municipal traffic police services during construction activities for a sanitary sewer and water main replacement project within the City. The Amended Complaint is in four counts.   Pursuant to Practice Book § 10–39, the defendant Metropolitan District Commission (“MDC”) has moved to strike Counts Three and Four of the complaint.

II. STANDARD OF REVIEW

“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.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

“[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Id., 252.   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citation omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

III. DISCUSSION

A. Third Count—Breach of Contract

The complaint alleges that on or about October 7, 2008 the MDC and Errol & Vincent entered into a construction contract for sanitary sewer and water main replacement for a portion of Lawrence Street, Hartford, Connecticut (hereinafter the “Contract”).  (Compl.¶ 4.)   The Contract required Errol & Vincent to provide and pay for municipal traffic police for the maintenance and protection of vehicular and pedestrian traffic in the streets and roadways in which construction activity was to be undertaken.  (Compl. ¶¶ 5 and 6.)

In May of 2009, Errol & Vincent began its work under the Contract.   The City and Errol & Vincent entered into a contract whereupon the Plaintiff would provide municipal traffic police services as a subcontractor in exchange for payment from Errol & Vincent.  (Compl.¶¶ 8–12.)   In September 2009, Errol & Vincent abandoned its work for a period of five consecutive days without reasonable cause in violation of the Contract.   On or about September 25, 2009, the MDC gave notice of the contract violation to Travelers Casualty and Surety Company of America (“Travelers”) which held the performance and payment surety bonds for Errol & Vincent for this project.   Errol & Vincent has not paid the City for any of the municipal traffic police services it utilized before it abandoned the project and owes the City $11,052.00.  (Compl.¶¶ 13–14.)

On June 19, 2012 the City commenced this action against defendants Errol & Vincent and its owner, Errol Walker, the MDC and Travelers.   On July 13, 2012, the complaint was withdrawn against Travelers.   On October 26, 2012 the Plaintiff filed an Amended Complaint in four counts:  First Count, breach of contract against Errol & Vincent;  Second Count, breach of contract against the individual defendant Errol Walker;  Third Count, breach of indemnity agreement against MDC;  and Fourth Count, quantum meruit against MDC.

MDC now moves to strike both the Third and Fourth Counts of the Amended Complaint, arguing that the loss sustained by the City is outside the purview of Hartford Municipal Ordinance § 31–87, and therefore the City cannot claim indemnification in this case.   And because the law does not permit recovery under a theory of quantum meruit for payment due to a subcontractor under a bonded public works project.

B. Discussion Third Count—Breach of Agreement of Indemnity

The plaintiff alleges that the MDC, as a condition of the right to do any excavation work in the City, “agreed to be liable to indemnify and reimburse the City for any loss sustained by it by reason of any such excavation.”   (Compl.¶ 30.)   The plaintiff alleges that this agreement is codified in Hartford Municipal Ordinance § 31–87(c) and (d).  Section 31–87(c) requires bonding for all excavation projects and states:

Every person making application for a street excavation license shall file with the bureau of licenses and inspections satisfactory bond of a surety company authorized to do business in the state, in the minimum sum of ten thousand dollars ($10,000), or an amount to be established by the Director of Public Works and conditioned substantially that the applicant shall indemnify and save the City and the department of public works and its agents harmless from all suits and actions brought against the City or any officer thereof for or on account of any injuries or damages received or sustained by any person in consequences of, or resulting from, any work performed by the applicant, his servants or agents, or any negligence in guarding such work, or any act or omission of the applicant, and that the applicant shall faithfully perform such work in all respects and shall replace and restore that portion of any street in which the applicant, his servants or agents shall make any excavation, to as good condition as that in which the same was before such work was performed, and guarantee such work for five (5) years.   The applicant must also agree to indemnify and save the City harmless from all damages caused by his acts or omissions while acting under the inspections issued and shall supply evidence of insurance as required by the risk manager of the City.

Hartford Municipal Ordinance § 31–87(d) reads as follows:

The provisions of subsections (a), (b) and (c) of this section shall not apply to the Metropolitan District Commission, provided that the Metropolitan District Commission shall be liable to any person who receives actionable injury through excavations which it makes or causes to be made in or below any street, sidewalk or public way in the City, and the Metropolitan District Commission shall be liable to indemnify and reimburse the City for any loss sustained by it by reason of any such excavation or negligent maintenance of any such excavation.

A fair reading of these ordinances does not support the existence of an “agreement” by the MDC to indemnify the City for contractual payments owed to the City as a subcontractor on an MDC project.   A reasonable interpretation of the ordinance leads to the conclusion that the ordinance was written to protect and indemnify the City from personal injury or property damage claims resulting from the physical act of excavation or from the mismanagement of the excavation site itself.

An indemnity agreement will be construed to cover only such losses as appear to have been intended by the parties.  Leonard Concrete Pipe Co. v. C.W. Blakeslee & Sons, Inc., 178 Conn. 594 (1979).   The scope of an indemnity agreement—i.e., the risk assumed by the indemnitor—is usually determined by its express written terms.  Leonard Concrete Pipe Co., supra, 598–99;  Cirrito v. Turner Construction Co., 189 Conn. 701, 706–07, 458 A.2d 678 (1983).

In this case, the purpose of the alleged indemnity “agreement” is to protect the City from claims by injured persons that slipped and fell at an open excavation site, property damage sustained by a property owner adjacent to an excavation site or damage to an underground utility.   The ordinance was not written for the purpose of allowing the City to recover uncollected money owed to it in its role as a subcontractor for public works projects.   For this reason, the Third Count does not set forth a legally sufficient claim for contractual indemnification.

C. Discussion Fourth Count—Quantum Meruit

MDC argues that Fourth Count of the Complaint should be stricken because a claim for unjust enrichment cannot be asserted against a municipality under a public works project.   Where a payment bond is posted, a subcontractor's only remedy is against the surety under Conn. Gen. Stat § 49–42.   In support of its motion, MDC cites Judge Markie's well-reasoned analysis in York Hill Trap Rock Quarry Co. v. Conn–Strux, Inc., Superior Court, Judicial District of New Haven, Docket No. CV10–6001360 (Feb. 10, 2012) (Hon.Markle, J.), in which the court granted a motion to strike two counts against the City of Meriden that were substantially similar to the claims directed against the MDC in the present action.

This court has reviewed the York Hill decision and the statutory and caselaw authority cited therein, and adopts Judge Markle's reasoning as persuasive on all the legal points raised by the defendant MDC as to Count Four of the Amended Complaint.   As a matter of law, the plaintiff is not entitled to maintain its claim of quantum meruit in the Fourth Count.

IV. CONCLUSION

For the foregoing reasons, the motion to strike is GRANTED as to the Third and Fourth Counts of the Amended Complaint.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.