National Fire Ins Co Of Hfd v. Wetherell Corporation

Filing 45

MEMORANDUM OF DECISION granting 39 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 5/8/2012. (Candee, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NATIONAL FIRE INSURANCE CO.
OF HARTFORD a/s/o CHURCH HOME
OF HARTFORD, INC.,
Plaintiff,
v.
THE WETHERELL CORPORATION,
Defendant.

:
:
:
:
:
:
:
:

3:10cv1518 (WWE)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
In this action, plaintiff National Fire Insurance of Hartford asserts that defendant
The Wetherell Corporation (“Wetherell”) is liable for negligence in connection with the
design, engineering and installation of a sprinkler system installed at the Seabury
Retirement Community.
Defendant has filed a motion for summary judgment. For the following reasons,
the motion for summary judgment will be granted.
BACKGROUND
The parties have submitted statements of facts and supporting exhibits. The
parties’ submissions reflect that the following facts are not in dispute.
Church Home of Hartford is the owner of Seabury Retirement Community.
Architectural firm Jeter Cook & Jepson was retained in connection with a project to
create additional apartments and a natatorium for the retirement community. Jeter
Cook & Jepson hired Barnhart, Johnson, Francis & Wild (“BJF&W”), an engineering
firm, to prepare a performance specification for the fire protection of this project.
Defendant Wetherell Corporation was hired pursuant to a subcontract to perform work
as a sprinkler contractor on the Seabury Retirement Community construction project.

1

The subcontract stated:
This Subcontractor shall produce all labor, material, tools and equipment
required by the Contract Documents to FURNISH AND INSTALL ALL FIRE
PROTECTION WORK per the Contract Documents that are listed on Exhibit C,
and the bidding documents contained in BBE’s Invitations to Bid dated 7/30/02
and Addenda 1 through 3.

Defendant used BJF&W’s drawing to produce more detailed “installation
drawings” that were used to construct the fire protection system for the natatorium. In
completing its work, defendant did not engage the assistance of a design engineer.
The drawings were completed by 2003, and the sprinkler system was completed
in 2003. By 2004, defendant’s involvement in the project had ended.
On July 29, 2009, the Seabury Retirement Community sustained extensive
damage to its property due to a fire that spread throughout the natatorium, an area that
lacked any sprinkler heads.
National Fire Insurance Company of Hartford paid its insured Church Home of
Hartford, Inc. $7,041,840.20 for damages caused by the fire of July 29, 2010. This
action was commenced in 2010.
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when
reasonable minds could not differ as to the import of the evidence is summary judgment
proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849
(1991).
The burden is on the moving party to demonstrate the absence of any material

2

factual issue genuinely in dispute. American International Group, Inc. v. London
American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether
a genuine factual issue exists, the court must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential
element of its case with respect to which it has the burden of proof, then summary
judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party
submits evidence which is "merely colorable," legally sufficient opposition to the motion
for summary judgment is not met. Anderson, 477 U.S. at 249.
Statute of Limitations
Defendant argues that this case should be dismissed because the statute of
limitations for negligence, Connecticut General Statutes § 52-584, has passed. Plaintiff
counters that the relevant period of limitations is dictated by Connecticut General
Statutes § 52-584a. Plaintiff maintains that defendant was providing unlicensed
engineering services and should have hired an engineer when it developed the
drawings for the sprinkler system.
Section 52-584 provides, in relevant part:
No action to recover damages for injury to the person, or to real or
personal property, caused by negligence, or by reckless or wanton
misconduct ... shall be brought but within two years from the date when
the injury is first sustained or discovered or in the exercise of reasonable
care should have been discovered, and except that no such action may
be brought more than three years from the date of the act or omission
complained of ...

The “act or omission” requirement of Section 52-584 is satisfied when the contractor

3

has ceased work on the site and the contract for the job has been completed. Bartha v.
Waterbury House Wrecking Co., Inc., 135 Conn. 176, 178 (1983). An action may be
time barred even if no injury is sustained during the three years following a defendant's
act or omission. Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205,
210-11 (1993). However, the limitations period may be tolled where there is a
continuous course of conduct, which requires that defendant “(1) committed an initial
wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to
the alleged original wrong; and (3) continually breached that duty.” Witt v. St. Vincent's
Medical Center, 252 Conn. 363, 370 (2000).
Plaintiff argues not that any continuing course of conduct tolls the statute but that
Section 52-584a applies in this case.
Section 52-584a provides, in relevant part:
(a) No action or arbitration, whether in contract, in tort, or
otherwise, (1) to recover damages (A) for any deficiency in the
design, planning, contract administration, supervision, observation
of construction or construction of, or land surveying in connection
with, an improvement to real property; (B) for injury to property, real
or personal, arising out of any such deficiency; (C) for injury to the
person or for wrongful death arising out of any such deficiency, or
(2) for contribution or indemnity which is brought as a result of any
such claim for damages shall be brought against any architect,
professional engineer or land surveyor performing or furnishing the
design, planning, supervision, observation of construction or
construction of, or land surveying in connection with, such
improvement more than seven years after substantial completion of
such improvement.

4

Connecticut state courts have limited application of Section 52-584a to actions
against architects, professional engineers or land surveyors as delineated by the
statute. Sandrig v. Dubreuil and Sons, Inc., 68 Conn. App. 79, 92 (2002). In fact, the
legislative history underscores that the statute was enacted to protect the specific
professionals enumerated therein. See Bagg v. Town of Thompson, 2008 WL
1971326, *3-4 n.8 (Ct. Sup. Ct. 2008) (citing legislative history that statute is directed at
protecting architects and engineers; noting that other jurisdictions have statutes that
cover contractors and subcontractors).
Courts have found disputed issues of fact in the context of Section 52-584a
where the alleged activity did not clearly fall within the statutory requirement of an
“improvement” to the property. See Lathrop v. Malcolm Pirnie, Inc. 131 Conn. App.
204, 214 (2011) (question of whether monitoring wells constitute improvements to
property).
Here, an architectural and engineering firm were involved with the project and
allowed for the defendant’s installation of the sprinkler system. No inference of fact
suggests that Wetherell constituted an engineering, architectural or land surveyor firm
so as to bring this action within the purview of Section 52-584a. Accordingly, the Court
finds that Section 52-584 bars this action.

5

CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment [doc. #39]
is GRANTED. The clerk is instructed to close this case.
Dated this _8th__ day of May, 2012 in Bridgeport, Connecticut.

__________________________
/s/
Warren W. Eginton,
Senior United States District Judge

6