Richard Palkimas v. Nationwide Insurance Company of America (2014)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Richard Palkimas, is the owner of property known as 350 Soundview Avenue, in the City of Stamford.   He purchased the property in 2004 for three hundred thirty-five thousand dollars ($335,000.).

One of Stamford's oldest homes is located on the property.   The structure dates back to the 1700s, having been constructed in 1747.   The building was later remodeled, when an addition was added in 1854.

The property overlooks Long Island Sound.   The building's architecture is a combination of Colonial and Victorian, reflecting both the initial construction, and the 1854 addition.

The structure is two stories, and has an unfinished basement.   The original siding and trim have been retained.

Following his purchase of the property, the Plaintiff, along with his life partner, Gay Engstrom, performed renovations to the property.   Ms. Engstrom's family were one of Stamford's original families, who purchased land in the area from the original Native Americans.

As part of the renovations, Richard Palkimas engaged the services of Oscar Fernandez, and signed a contract (Ex. 2) with Oscar's Painting Contractors, for fifty-two thousand, three hundred fifty-three dollars ($53,353).   Fernandez was hired to restore windows in the house, perform exterior and interior painting, and lead paint encapsulation.

As the project was nearing completion, an incident occurred in September of 2006.   A toilet in the second floor bathroom had been disconnected.   An unknown person used the disconnected toilet, and, as a result, water and waste flooded the second floor, portions of the first floor, and the basement.

The kitchen, bathroom, and hallway on the first floor were affected by the flooding.

Oscar Fernandez submitted a claim to his insurance carrier, the Defendant, Nationwide Insurance Company of America.

Although Nationwide initially denied that the event was a covered occurrence within the meaning of its policy with Oscar Fernandez, coverage was ultimately provided for the loss.

During the period of time in which Nationwide was making a determination concerning coverage, Hygenix, Inc. was hired to inspect the property, and to formulate a renovation plan.

Once coverage was acknowledged, a representative of the Defendant, Andrew Webber, met with Richard Palkimas at 350 Soundview Avenue.

It was determined, by Nationwide to engage the services of Serve Pro to remediate the damages caused by the use of the disconnected toilet.

Richard Palkimas maintains that Nationwide, acting through Andrew Webber, told him that he could not enter the property, while the remediation was in progress.   The Plaintiff also alleges that he was informed by Webber that as part of a “protocol,” Nationwide would require that heat be turned off in the home.

The Defendant, Nationwide Insurance Company of America, claims that the Plaintiff was never excluded from the property, and that he had access to the premises at all times.

Nationwide maintains that Hygenix restricted access only to the portion of the property where the remediation work was occurring.

Nationwide further maintains that it never requested that the heat be turned off at the property, and that the heat was turned off at the request of the Plaintiff, Richard Palkimas.

At trial, Webber testified that Serve Pro was engaged, with the approval of Richard Palkimas, to perform the remediation job.   He claimed that Serve Pro was working for Palkimas, and that the Plaintiff could have engaged another concern had he desired.

Anton Jelevich, a representative of Serve Pro, explained that the company was contacted by Nationwide, but that work was performed for the customer, Palkimas, and not for the insurance carrier.   He stated that payment to Serve Pro by Nationwide, was authorized and approved by Palkimas (Ex. DD).

Paul Wypychoski, an employee of Raps Plumbing and Heating, Inc., testified concerning a service call on November 24, 2006.   He was not instructed to turn off the heat at any time, and recommended that the heating system be maintained at 55 degrees (Ex. RR).

When Richard Palkimas returned to the dwelling following the remediation, he observed damage to the walls which was not present when the remediation efforts began.

He observed cracks in the wall, including the horsehair plaster, throughout the house.   The plaster walls, in addition to being cracked, had come loose from the supports, and were no longer firm and sturdy to the touch.

It was subsequently discovered that the plaster Keyways, which held the horsehair plaster in place, were broken.

The Plaintiff maintains that the damage to the surface of the walls, and the cracks in the horsehair plaster, were caused by exposure to freezing temperatures in the house, coupled with moisture.

This action was initially instituted against three named Defendants, Oscar D. Fernandez, d/b/a Oscar Painting Contractors, Oscar Painting Contractor, LLC, and the Nationwide Insurance Company of America (Ex. QQ).

The only remaining Defendant, at the time of trial, is the Nationwide Insurance Company of America.   The claims against Nationwide are pled in a single count, claiming negligence.

The Plaintiff claims that Nationwide “took over the work” from Oscar Fernandez, and engaged various tradesmen, plumbers, and remediation companies to work at the home.

It is claimed that Nationwide was negligent, in one or more of the following respects:

1. It should have provided an alternative source of heat.

2. It should have assured that the remediation was done in a timely fashion.

3. It should have instructed its subcontractors.

4. It negligently employed various subcontractors.

5. It failed to properly supervise its subcontractors.

6. It failed to appreciate the dangers in allowing the home to be subjected to freezing temperatures for a prolonged period of time.

At trial, both parties introduced expert testimony, concerning the impact of freezing temperatures upon the horsehair plaster contained in the structure.

The Plaintiff, Richard Palkimas, presented testimony from Barry Nelson, a professional engineer, while the Defendant called Peter Lord, an expert in the restoration and protection of historic buildings, and an individual experienced in working with horsehair plaster.

The Plaintiff claims that Nationwide's failure to prevent the property from freezing, and thus damaging the horsehair plaster, caused him to suffer damages, including the diminution in the value of the home, expenses for alternate housing, and the cost of repairing the home, following the remediation.

The Defendant argues that it owed no duty to the Plaintiff, and that any negligence on the part of the subcontractors is not attributable to the Nationwide Insurance Company of America.

In the alternative, the Defendant claims that the temperatures and moisture present in the home during the winter of 2006–07, did not cause the damage to the horsehair plaster, which the Plaintiff discovered in February of 2007.

NATIONWIDE NOT LIABLE FOR ANY NEGLIGENCE OF INDEPENDENT CONTRACTORS, AND WAS NOT IN CONTROL OF THE PREMISES

The Plaintiff, Richard Palkimas, claims that Nationwide was in control of 350 Soundview Avenue, Stamford, during the course of the remediation in 2006–07.   He further claims that any negligence of those who actually performed the remediation, is attributable to Nationwide.

In addition, he claims that Nationwide ordered that the heat at the premises be turned off as part of an unwritten “protocol,” and that following the protocol caused damage to the interior of the home, including the horsehair plaster.

The Defendant claims that all work on the premises was performed by independent contractors, who were not under the direction and control of Nationwide.   Therefore, Nationwide claims that no duty is owed to the Plaintiff, given the well established rule that the negligence of an independent contractor, is not attributable to the person or entity employing the independent contractor.  Gazo v. Stamford, 256 Conn. 245, 256–57 (2001);  Douglass v. Pesk & Lines, Co., 89 Conn. 622, 627 (1918);  Ray v. Schneider, 16 Conn.App. 660, 663–64 (1988).   The same rule applies in the case of a general contractor, who employs independent contractors.  Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518 (2003).

The court agrees with the Defendant.

The legal distinction between an employer-employee relationship, and an employer-independent contractor relationship is well established.  Alexander v. R.A. Sherman's Sons, Co., 86 Conn. 292, 297 (1912).   An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of his work.   The fundamental distinction between an employee and an independent contractor, depends upon the existence or nonexistence of the right to control the means and methods of the work.  Hunte v. Blumenthal, 238 Conn. 146, 154 (1996);  Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639 (1990);  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 534 (2004).

The basic premise is that control of the property and the work is deemed to be in the independent contractor.   Since the employer has no control over the manner in which the work is done by the contractor, it is deemed to be the contractor's enterprise, rather than that of the owner of employer.  Ellis v. Allied Snow Plowing, Removal, 81 Conn.App. 110, 116, n.6 (2004);  Mozeleski v. Thomas, 76 Conn.App. 287, 291–92 (2003).

Here, no evidence was presented at trial concerning any negligent hiring of a contractor by Nationwide, or any of its authorized agents or employees.   Serve Pro and Hygenix did not enter into any written agreement with Nationwide regarding the sewage loss, after Nationwide acknowledged coverage under its policy.

Nationwide paid the Serve Pro invoices, which were approved by the owner of the property (Ex. DD).

It is therefore found, that those persons and entities who performed work designed to remediate the results of the September 2006 incident, were independent contractors, and not employees of the Defendant, Nationwide Insurance Company of America.

Nor has any agency relationship between Nationwide and any of the providers of services been established.

An agency relationship is established when one person consents to have another act on his behalf, subject to his control, and the other agrees.   Beckenstein v. Potter & Carrier, 191 Conn. 120, 132–34 (1983);  1 Restatement (Second) Agency, S. 1 (1958).   Three elements are required in order to establish an agency:  1) a manifestation by the principal that an agent will act for him, 2) acceptance of the undertaking by the agent, and 3) an understanding that the person will be in control of the undertaking.  Wesley v. Schaller Subaru, 277 Conn. 526, 543 (2006).

The evidence fails to support any finding of agency.

Nationwide was not in control of the remediation work, and there is no evidence that Nationwide “took over the work” as the Plaintiff claims.

CLAIMS OF DAMAGES DUE TO FREEZING TEMPERATURES NOT PROVEN

Assuming, arguendo, that it could be established that either Nationwide, or any of the independent contractors left the premises without heat, and that the failure to heat the premises was negligent, the Plaintiff has failed to prove that any damages were caused.

The court finds the testimony of Peter Lord concerning the properties of horsehair plaster to be credible, in light of his extensive background in the restoration and protection of historic structures.   Lord testified that horsehair plaster is not damaged by extreme cold, even if wet, or subject to moisture.

The fact that he could not make a definitive conclusion concerning the cause of the damage to the walls at 350 Soundview Avenue, does not diminish his testimony.

He was unable to examine or test the horsehair plaster, because the Plaintiff had taken the materials to the dump in the summer of 2012, while this case was pending.

The Plaintiff's expert, Barry Nelson, did not have experience with horsehair plaster, and testified as an engineer, concerning general concepts.

His conclusions were not verified by any scientific experiments or tests at the property, to rule out other causes for the damage to the walls.

Based upon the best evidence presented at trial, it is found that the Plaintiff has failed to prove that the damage to the horsehair plaster at 350 Soundview Avenue, was proximately caused by the failure to properly heat the premises during the remediation period.

CONCLUSION

Judgment may enter in favor of the Defendant.

RADCLIFFE, J.

Radcliffe, Dale W., J.