JOHN GIROLAMETTI, JR., ET AL.
MICHAEL HORTON ASSOCIATES, INC. JOHN GIROLAMETTI, JR., ET AL.
VP BUILDINGS, INC., ET AL.
December 14, 2018
in the first case, to recover damages from the defendant
Michael Horton Associates, Inc., for alleged negligence,
brought to the Superior Court in the judicial district of
Danbury, where the defendant Michael Hor-ton Associates,
Inc., filed apportionment complaints against the defendant
Rizzo Corporation et al., and action, in the second case, to
recover damages for, inter alia, the defendants' alleged
negligence, brought to the Superior Court in the judicial
district of Danbury, where the cases were transferred to the
judicial district of Waterbury, Complex Litigation Docket;
thereafter, the plaintiffs in the first case filed an amended
complaint asserting claims against the defendant Rizzo
Corporation et al.; subsequently, in the first case, the
court, Agati, J., granted the motion for summary
judgment filed by the defendant Rizzo Corporation and denied
the motions for summary judgment filed by the defendant
Michael Horton Associates, Inc., et al.; thereafter, in the
second case, the court, Agati, J., denied the motion
for summary judgment filed by the defendant Blue-Scope
Buildings North America, Inc., et al.; subsequently, the
plaintiffs and the defendant Michael Horton Associates, Inc.,
et al. in the first case, and the defendant BlueScope
Buildings North America, Inc., et al. in the second case,
filed separate appeals with the Appellate Court,
Sheldon, Mullins and Bishop, Js.,
which affirmed the decision of the trial court granting the
motion for summary judgment filed by the defendant Rizzo
Corporation in the first case, reversed the decisions of the
trial court denying the motions for summary judgment filed by
the defendant Michael Horton Associates, Inc., et al. in the
first case, reversed the decision of the trial court denying
the motion for summary judgment filed the defendant BlueScope
Buildings North America, Inc., et al. in the second case, and
remanded both cases with direction to grant those motions for
summary judgment, from which the plaintiffs, in both cases,
on the granting of certification, appealed.
J. Donnell, with whom was Michael G. Cald-well, for the
appellants (plaintiffs in both cases).
C. Di Gioia, for the appellee in Docket No. SC 20032
(defendant Domenic Quaraglia Engineering, Inc.).
M. Godbout, with whom, on the brief, was Alison H. Weinstein,
for the appellee in Docket No. SC 20033 (defendant Michael
Horton Associates, Inc.).
R. Caruthers, with whom, on the brief, was Mark A. Milano,
for the appellee in Docket No.SC20034 (defendant Pat Munger
Construction Company, Inc.).
L. Brown, pro hac vice, with whom wereDam-ian K. Gunningsmith
and, on the brief, David S. Hardy, for the appellee in Docket
No. SC 20035 (defendant BlueScope Buildings North America,
Inc., et al.).
Deborah Etlinger, with whom, on the brief, was Erin E.
Canalia, for the appellee in Docket No. SC 20036 (defendant
Lindade Construction, Inc.).
R. Pepe and Douglas M. Poulin filed a brief for Associated
General Contractors of Connecticut as amicus curiae in Docket
No. SC 20036.
Robinson, C. J., and Palmer, McDonald, D'Auria and Ecker,
certified appeal poses the question of whether and under what
circumstances arbitration of a construction dispute between a
property owner and a general contractor is res judicata as to
the claims of subcontractors that did not participate in the
arbitration. We agree with the Appellate Court that, in the
absence of clear evidence of contrary intent by the parties,
subcontractors are presumptively in privity with the general
contractor on a construction project for purposes of res
judicata. Accordingly, we affirm the judgment of the
relevant factual and procedural history is set forth in full
in the decision of the Appellate Court. See Girolametti
v. Michael Horton Associates, Inc., 173 Conn.App. 630,
636-46, 164 A.3d 731 (2017). We briefly summarize that
history as follows.
five consolidated appeals arise from disputes regarding the
construction of an expansion to a Party Depot Store located
in Danbury. The plaintiffs are the owners of the store, John
Girolametti, Jr., and Cindy Girolametti. The
defendant-appellees are five subcontractors on the project:
Michael Horton Associates, Inc. (Horton), Domenic Quaraglia
Engineering, Inc. (Quaraglia), Lindade Construction, Inc.
(Lindade), BlueScope Buildings North America, Inc., and its
employee, Steven Oakeson (BlueScope), and Pat Munger
Construction Company, Inc. (Munger). Other original
defendants, including the general contractor on the project,
Rizzo Corporation (Rizzo), and other subcontractors, are not
involved in the present appeals.
2009, following the completion of the project and
Danbury's issuance of a certificate of occupancy, the
plaintiffs and Rizzo, pursuant to the contract between them
(prime contract), entered arbitration to resolve various
disputes regarding the project. Rizzo contended that the
plaintiffs owed it further sums beyond the contract price for
extra work performed and costs incurred in connection with
the project. For their part, the plaintiffs sought to hold
Rizzo liable for costs arising from, among other things,
Rizzo's alleged failure to complete the project in a
timely and proper manner. They claimed, for example, that
Rizzo was responsible for multiple construction defects, had
failed to provide a pre-engineered structure that complied
with the intent of the original design, and had eliminated
some important construction elements, jeopardizing the
building's load carrying capacity. None of the other
defendants was formally a party to the arbitration.
December, 2010, on the thirty-third day of what would
ultimately be a thirty-five day hearing, the plaintiffs
decided to no longer participate in the arbitration hearings,
despite the urging of the arbitrator that they proceed to
present their damages claims. The arbitrator subsequently
issued an award ordering the plaintiffs to pay $508, 597 to
Rizzo for sums due. Rizzo's subsequent application to
confirm the award was granted by the trial court.
respect to the plaintiffs' claims, the arbitrator found
that the plaintiffs made a conscious and informed decision to
no longer attend the hearing, and intentionally refused to
present any evidence or expert witnesses to explain or
justify any alleged damages. From this finding, the
arbitrator concluded that either the plaintiffs did not incur
any damages or were unable to prove their damages. The
arbitrator also rejected the plaintiffs' claims that the
second floor of the building remained unoccupied due to
construction defects resulting in structural problems. The
arbitrator instead concluded that the structure had passed
inspection but that Danbury zoning regulations did not permit
use of the second floor for any purpose.
present appeals arise from two lawsuits, one filed during the
arbitration proceedings and one filed subsequently, in which
the plaintiffs sought to recover from Rizzo and from its
subcontractors. At the heart of many of the plaintiffs'
claims in these underlying cases are allegations of
negligence in connection with the design and construction of
the steel joists used to support the second floor of the
building. In the actions underlying these appeals, each of
the defendants-who were involved in various capacities in the
design and construction of the second floor supports-moved
for summary judgment against the plaintiffs on the basis of,
among other grounds, res judicata. That is, they contended
that all of the claims raised in the underlying actions
either had been or could have been raised and resolved during
trial court granted the motion filed by Rizzo but denied the
motions for summary judgment filed by the other defendants.
The court concluded that the plaintiffs' actions against
the subcontractor defendants were not barred by res judicata
because those defendants were not parties to the arbitration
and were not in privity with Rizzo. Although it is unclear
from the court's brief order, its conclusion that the
defendants were not in privity with Rizzo appears to be
founded on the premise that they could not have been
compelled to participate in the arbitration process.
defendants brought an interlocutory appeal from the
court's denial of their motions for summary judgment.
See, e.g., Santorso v. Bristol Hospital, 308 Conn.
338, 346 n.7, 63 A.3d 940 (2013) (interlocutory appeal may be
taken from denial of motion for summary judgment based on res
judicata or collateral estoppel). The Appellate Court
reversed the judgment of the trial court with respect to the
res judicata issue as to all of the defendants. That court
held that all of the defendants were in privity with Rizzo
for purposes of res judicata and, therefore, that the
plaintiffs' claims were barred because they could have
been raised during the ...