LLC v. Stephen Falcigno et al. (2013)

MEMORANDUM OF DECISION

In its complaint dated October 11, 2012, the plaintiff, Giordano Associates, LLC (GA), alleges that, subsequent to Hurricane Irene, it entered into a public adjuster contract with defendants Stephen Falcigno (Falcigno) and Caroline Road Associates, LLC (CRA) to act as the defendants' adjuster for a fee of ten percent of the adjusted property loss.   The first count alleges breach of that contract.   The second count alleges unjust enrichment.   The defendants have denied these allegations in their answer dated December 17, 2012.   The matter was tried to the court on May 8, 2013.   The parties have filed post-trial briefs.   The following facts have been proven by a preponderance of the evidence.

Findings of Fact

On August 27, 2011, Falcigno retained the services of GA to provide public adjuster services for real property which had sustained wind and flood damage from Hurricane Irene.   The property, 25 Caroline Road, was owned by defendant CRA. CRA has two members, defendant Falcigno and his wife, Loredana Falcigno.

GA's employee, Anthony Serio, provided Falcigno with a public adjuster contract.   The contract complies with insurance regulations, in particular, Regs., Conn. State Agencies, § 38a–788–6.   The contract was signed by Falcigno as “insured” and was also signed by Serio.   Serio gave Falcigno a copy of the contract.

The contract does not state that Falcigno signed on behalf on CRA. Falcigno did not inform GA that the subject property was owned by defendant CRA. Falcigno told Serio that he was the owner of the property.   It was reasonable for GA to rely upon the representation of Falcigno that he was the insured and, therefore, the court finds that GA complied with Regs., Conn. State Agencies, § 38a–788–7 in obtaining a contract signed by the insured.¹

Subsequently, Loredana Falcigno learned of the contract that her husband had signed with GA and disagreed with him about entering into the contract.   Despite her displeasure, neither Loredana nor Stephen Falcigno canceled GA's services or contacted GA to inform GA that CRA was the owner or that Falcigno had no authority to enter into the contract.

With respect to the homeowner's policy claim for wind damage, there appears to be no contest that GA performed its services pursuant to the contract.   The claims for adjusting the flood damage, however, were contested.

As to the flood damage claim, Falcigno had been contacted by a flood claim insurance adjuster directly and attempted to pass along communications from the adjusters to GA, but received no response.   Therefore, Falcigno resorted to self-help.   He met with the insurance adjuster and ultimately agreed to a resolution of the flood claim without the assistance of GA.² However, GA was also negotiating the claim with a flood insurance adjuster and reached its own resolution of the claim, albeit for an amount less than that which Falcigno had himself negotiated.³

After reaching its own settlement, GA contacted Falcigno to inform him that GA had a resolution proposal from the insurance carrier.   GA was unaware that Falcigno had already negotiated a claim settlement for a higher amount than the proposal to GA and learned for the first time that Falcigno had resorted to self-help and reached his own settlement.

On June 21, 2012, GA generated an invoice to CRA for services rendered in the amount of $13,337.60.   The insured listed on the invoice was “Falcigno.”   The amount sought by GA in the invoice was contractual and was warranted under the terms of the contract.   The defendants did not pay this invoice.

First Count—Breach of Contract

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc., 143 Conn.App. 581, 585 (2013).

On August 27, 2011, GA and Falcigno entered into a contract for services.   GA performed those services.   Pursuant to the contract, Falcigno was obligated to pay for such services and breached the contract by failing to do so.   The damages pursuant to the contract are $13,337.60.   The court finds in favor of the plaintiff against the defendant Falcigno in the amount of $13,337.60.   The contract does not provide for an accrual of interest for unpaid balances.   Therefore, no prejudgment interest is awarded.⁴

Second Count—Unjust Enrichment

The second count, claiming unjust enrichment, is pleaded in the alternative.   “Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

“Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims.”  (Internal quotation marks omitted.)  Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007).  “The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.”  (Internal quotation marks omitted.)  BHP Land Services, LLC v. Seymour, 137 Conn.App. 165, 169, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).

As the court finds in favor of the plaintiff on the first count, it does not address the cause of action contained in the second count.   See Union Trust Co. v. Jackson, 42 Conn.App. 413, 416 n.2, 679 A.2d 421 (1996).

Judgment

On the first count of the complaint, the court finds in favor of the plaintiff Giordano Associates, LLC against the defendant Stephen Falcigno and awards damages in the amount of $13,337.60, plus costs.

The Court,

Robert E. Young, Judge

FOOTNOTES

FN1. A subsequent amended answer with special defenses was withdrawn on the date of the trial.   Therefore, the defendant's claims that the plaintiff failed to comply with Regs., Conn. State Agencies, §§ 38a–788–6 and 38a–788–7 were withdrawn, although reasserted in the defendant's post-trial brief.   Whether or not the claims survived the withdrawal of the pleading, the court specifically finds that the plaintiff was in compliance with both regulations..  FN1. A subsequent amended answer with special defenses was withdrawn on the date of the trial.   Therefore, the defendant's claims that the plaintiff failed to comply with Regs., Conn. State Agencies, §§ 38a–788–6 and 38a–788–7 were withdrawn, although reasserted in the defendant's post-trial brief.   Whether or not the claims survived the withdrawal of the pleading, the court specifically finds that the plaintiff was in compliance with both regulations.

FN2. On the proof of loss which Falcigno himself negotiated, Loredana Falcigno, not CRA, is listed as the insured, and Loredana Falcigno signed the proof of loss in her own capacity, not as agent or representative of CRA..  FN2. On the proof of loss which Falcigno himself negotiated, Loredana Falcigno, not CRA, is listed as the insured, and Loredana Falcigno signed the proof of loss in her own capacity, not as agent or representative of CRA.

FN3. There was no testimony from either of the national flood insurance adjusters, so the court is unaware as to why the insurance adjuster met directly with an insured who was represented by his own adjuster, nor why the insurance carrier allegedly had two adjusters working on the same claim, each apparently unaware of the other's existence..  FN3. There was no testimony from either of the national flood insurance adjusters, so the court is unaware as to why the insurance adjuster met directly with an insured who was represented by his own adjuster, nor why the insurance carrier allegedly had two adjusters working on the same claim, each apparently unaware of the other's existence.

FN4. The plaintiff withdrew its claim for attorneys fees, consequential and punitive damages on the day of trial..  FN4. The plaintiff withdrew its claim for attorneys fees, consequential and punitive damages on the day of trial.

Young, Robert E., J.