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J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC

Appellate Court of Connecticut

April 12, 2016

J.D.C. ENTERPRISES, INC.
v.
SARJAC PARTNERS, LLC

         Argued January 14, 2016.

          Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the town of West Hartford was cited in as a party defendant; thereafter, the named defendant filed an amended third party complaint against the defendant town of West Hartford; subsequently, the court, Hon. Richard M. Rittenband, judge trial referee, granted the motion to strike the third party complaint filed by the defendant town of West Hartford; thereafter, the court, Scholl, J., granted the motion for judgment on the third party complaint filed by the defendant town of West Hartford and rendered judgment thereon, from which the named defendant appealed to this court.

          SYLLABUS

         The plaintiff, J Co., sought damages from the defendant S Co. for remediation work J Co. had done in connection with flooding at real property that was owned by S Co. After J Co. had determined that the damage to S Co.'s property had been caused by a damaged municipal storm line, S Co. brought a six count, third party complaint against the town of West Hartford, seeking, inter alia, damages for common-law negligence and indemnification pursuant to statute (§ 7-465). S Co.'s complaint did not name as a defendant any agent, employee or officer of the town. The complaint alleged that the town had the authority to lay out, construct and maintain sewers pursuant to statute (§ 7-148 [c] [B] and [C]) and a town ordinance (§ 12-40). The town thereafter filed a motion to strike S Co.'s entire complaint on the ground that the town enjoyed governmental immunity from common-law negligence claims. The trial court determined that all six counts of S Co.'s complaint sounded in common-law negligence, and that neither § 7-148 nor town ordinance § 12-40 abrogated municipal liability. The court further determined that whether to repair or to install storm pipelines were discretionary acts by the town. The court thereafter granted the town's motion to strike and rendered judgment for the town, from which S Co. appealed to this court. S Co. claimed, inter alia, that the trial court improperly granted the town's motion to strike because it erred in concluding that town ordinance § 12-40 did not extend to subterranean storm water pipelines and that the repair of such pipelines was a discretionary function. Held that the trial court properly granted the town's motion to strike S Co.'s entire third party complaint, that court having correctly determined that all counts of the complaint sounded in common-law negligence, and neither § 7-148 nor town ordinance § 12-40 abrogated the town's common-law immunity; moreover, S Co. did not cite any statute that abrogated the town's common-law immunity, S Co. relied solely on its common-law negligence claim on the part of the town during the entire course of the litigation, and S Co. could not invoke indemnification pursuant to § 7-465 because it did not name as a defendant any agent, employee or officer of the town.

         Gary J. Greene, for the appellant (defendant-third party plaintiff).

         William S. Wilson II, for the appellee (third party defendant town of West Hartford).

         DiPentima, C. J., and Beach and Flynn, Js. FLYNN, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 509] FLYNN, J.

          The third party plaintiff, Sarjac Partners, LLC (Sarjac), appeals from the judgment of the trial court rendered after the granting of the motion to strike its six count third party second amended complaint filed by the defendant town of West Hartford (town). Sarjac argues that the court improperly granted the town's motion to strike. We disagree and affirm the judgment of the trial court.

         The following procedural history and factual allegations from the operative third party complaint are relevant to this appeal. The underlying case began when Sarjac suffered flood damage to property it owns, known as 36 LaSalle Road in West Hartford (property), and engaged the plaintiff, J.D.C. Enterprises, Inc., for remediation work in connection with the flooding and resulting damage.

         Prior to June 12, 2013, the property had experienced periodic flooding and sustained water damage requiring [164 Conn.App. 510] repair and remediation of the water and moisture damage. Sarjac engaged remediation companies to determine the source of the water problem, but none were able to identify definitively the source of the problem, so it replaced sump pumps on the property. On June 12, 2013, the property suffered major flooding causing significant damage. The following day, Sarjac put the town on notice that it would seek restitution from the town should it be determined that the floodwater originated from a defect in the town's pipes. J.D.C. Enterprises, Inc., was engaged to stop the flooding, prevent further flooding, and to determine its cause. During the investigation by J.D.C. Enterprises, Inc., a sinkhole formed on the front pavement.

         A town engineering official visited the premises and advised both Sarjac and J.D.C. Enterprises, Inc., that the town had no storm lines running through that location, but if any such pipe existed, it was inactive. However, after investigation by J.D.C. Enterprises, Inc., and Sarjac, it was determined that a municipal storm line did exist, a two foot section of the pipe was missing, the line was active, and it was owned by and/or controlled by the town. J.D.C. Enterprises, Inc., was then engaged by Sarjac to remediate and repair the damage and to prepare a report, which subsequently concluded the damage to Sarjac's property was caused by a damaged active storm water line.

         When its bill for services remained unpaid, J.D.C. Enterprises, Inc., the first party plaintiff, brought the first party action against Sarjac seeking the sum of $154,559.54 for its work plus additional fees and costs. Sarjac in turn commenced this third party action against the town seeking damages for negligence, common-law indemnity, and a declaratory judgment seeking a judicial determination as to what part of the bill from J.D.C. Enterprises, Inc., should be borne respectively by it and the town. The third party complaint further [164 Conn.App. 511] alleged that pursuant to General Statutes § 7-148 (c) (6) (B) and (C),[1] the town has authority to lay out, construct, and maintain sewers and pursuant to the town of West Hartford ordinance § 12-40, its Department of Public Works " shall be responsible for the repairing, maintaining and cleaning of streets and sewers . . . ." [2]

         On October 6, 2014, the town moved to strike the entire second amended third party complaint on the [164 Conn.App. 512] ground that the allegations were legally insufficient to state a claim on which relief could be granted because the town enjoys governmental immunity against common-law negligence claims unless such immunity has been abrogated by statute. The court ruled that the third party complaint sounded in negligence in all of its six counts, generally a municipality is immune from liability, and neither § 7-148 nor local ordinance § 12-40 abrogated municipal immunity. It further held that to repair or not to repair and to install or not to install are ...


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