B & D ASSOCIATES, INC. v. Russell

• Decision Date: 15 October 2002
• Docket Number: (AC 22112)
• Citation: B & D ASSOCIATES, INC. v. Russell, 73 Conn. App. 66, 807 A.2d 1001 (Conn. App. 2002)
• Court: Connecticut Court of Appeals
• Parties: B AND D ASSOCIATES, INC. v. RICHARD J. RUSSELL.

73 Conn. App. 66

807 A.2d 1001

B AND D ASSOCIATES, INC. v.RICHARD J. RUSSELL.

(AC 22112)

Appellate Court of Connecticut

Argued June 6, 2002

Officially released October 15, 2002

Foti, Mihalakos and Bishop, Js.Stuart G. Blackburn, for the appellant(plaintiff).

Joseph A. LaBella, for the appellee(defendant).

Opinion

BISHOP, J.

B and D Associates, Inc., the plaintiff in this negligence action, appeals from the summary judgment rendered by the trial court in favor of the defendant, Richard J. Russell.On appeal, the plaintiff claims that genuine issues of material fact exist and, therefore, that the court acted improperly in granting the defendant's motion for summary judgment.In response, the defendant, inter alia, advances an alternate ground for affirming the judgment; he contends that an intervening force, namely, a criminal act of a third party, superseded to relieve him of liability for his negligence.We affirm in part and reverse in part.

The following facts are undisputed.The defendant, a landlord, was the owner of a building at 7 Capital Drive, Wallingford.As of February, 1997, that building was divided into two business locations, one of which was leased by the plaintiff and the other by a business named Quality Auto Care.On February 1, 1997, a fire occurred in the area of the building leased by Quality Auto Care.Although that fire caused considerable damage to the building, it did not cause significant damage to the area of the building leased by the plaintiff.Between February 1 and February 10, 1997, employees of Quality Auto Care removed salvageable items from the building, and the defendant undertook some measures to secure the damaged area of the building.

On February 19, 1997, a second fire occurred.That fire, which is known to have resulted from arson, began in the area of the building leased by Quality Auto Care and eventually consumed the entire building, causing substantial damage to personal property that was owned by the plaintiff.The plaintiff's insurer, Hartford Fire Insurance Company, indemnified the plaintiff for losses totaling $1,699,012.42, including $350,000 for lost business income.The Hartford Fire Insurance Company, asserting the rights of its insured, later commenced a subrogation action against the defendant.In that action, which sounds in negligence and is the subject of the present appeal, the defendant is alleged to have proximately caused the plaintiff's losses by failing in its duty (1) to secure the building, especially after the first fire, (2) to repair the building adequately following the first fire and (3) to install "fire stopping" and "draft stopping" devices as required by law.The plaintiff alleged that as a result of the defendant's omissions, it "suffered damage to its equipment and the loss of its business in an amount in excess of $1,600,000."

In response, the defendant filed a motion for summary judgment in which it argued that the lease contains a risk of loss provision, releasing the defendant from all liability to the plaintiff, including liability flowing from the defendant's own negligence.Section 24 of the lease consists of the risk of loss provision and states: "Risk of Loss.It is expressly understood and agreed between the parties hereto that all goods, wares, merchandise, equipment, furnishings, tools, machinery and every other property of any other nature whatsoever, stored, used, maintained or kept on the herein leased premises, will be stored, used, maintained and kept on the herein leased premises by said TENANT, TENANT'S agents, servants, customers or by any other person or persons whatsoever solely at the risk of TENANT and/or any of the aforementioned persons or classes of persons; and there shall be no liability on the part of the LANDLORD to said TENANT and/or to any of said persons or classes of persons, or to anyone else for any damage or loss to any of the foregoing from any cause or for any reason whatsoever."(Emphasis added.)

On the basis of § 24 of the lease, the court rendered summary judgment in favor of the defendant.In so doing, it concluded that § 24 was clear and unambiguous, and that the use of the word "any" extinguished the possibility that a genuine issue of material fact existed as to whether the plaintiff had assumed the risk of loss.The court further concluded that in § 24, the plaintiff released the defendant from liability flowing from the defendant's negligence.This appeal followed.Additional facts and procedural history will be set forth as necessary.

"The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established.Practice Book§ 384[now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law....In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact."(Citations omitted; internal quotation marks omitted.)Rivera v. Double A Transportation, Inc.,248 Conn. 21, 24, 727 A.2d 204(1999).Mindful of that standard of review, we consider the plaintiff's claims and the alternate ground for affirmance advanced by the defendant.

I

The plaintiff advances several arguments in support of its claim that the court acted improperly in rendering summary judgment.It argues that: (1)§ 24 does not release the defendant from liability for his negligence or, alternatively, that § 24 does not release the defendant from liability for negligently failing to secure the building; (2)the court acted improperly in concluding that there was no genuine issue of material fact as to the intent of the parties at the time they entered into the lease, particularly § 24;(3)§ 24 does not release the defendant from liability for negligently causing the plaintiff to lose business income; and (4) the first fire altered the scope of § 24.

The following additional legal principles are relevant to our consideration of the plaintiff's arguments."In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible."(Internal quotation marks omitted.)Peter-Michael, Inc. v. Sea Shell Associates,244 Conn. 269, 275, 709 A.2d 558(1998)."A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court."Id., 276.

"In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. . . .A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . .The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity....Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . .Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature. . . .

"In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself....[A]ny ambiguity in a contract must emanate from the language used by the parties....If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous."(Citations omitted; internal quotation marks omitted.)United Illuminating Co. v. Wisvest-Connecticut, LLC,259 Conn. 665, 670-71, 791 A.2d 546(2002).

A

In the present case, the parties disagree over whether § 24 of the lease ever releases the defendant from liability to the plaintiff for the defendant's negligence.We now address that issue."The law does not favor contract provisions which relieve a person from his own negligence. . . .Such provisions, however, have been upheld under proper circumstances."(Citations omitted.)Griffin v. Nationwide Moving & Storage Co.,187 Conn. 405, 413, 446 A.2d 799(1982);see alsoGross v. Sweet,49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365(1979)("the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence")."[T]he law's reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity.So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts....Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility. . . .

"Not only does this stringent standard require that the drafter of such an agreement...