Northeast Panel Co., LLC v. Rizzo Corp., CV156052574S

• Decision Date: 01 March 2016
• Docket Number: CV156052574S
• Court: Connecticut Superior Court
• Parties: Northeast Panel Co., LLC v. Rizzo Corporation et al

Northeast Panel Co., LLC v. Rizzo Corporation et al

No. CV156052574S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

March 1, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#137)

Robin L. Wilson, J.

FACTS

The plaintiff, Northeast Panel Co., LLC, filed a third amended complaint^[1] in this action against the defendants Rizzo Corp. (Rizzo), and Travelers Casualty and Surety Co. (Travelers), on August 26, 2015.^[2] In the eight-count complaint, the plaintiff alleges violations of General Statutes § § 49-41a^[3] and 49-42, ^[4] breach of third-party beneficiary contract, breach of the implied covenant of good faith and fair dealing, a violation of the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes § § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act (CUIPA) General Statutes § § 38a-815 et seq. The plaintiff further alleges the following relevant facts.

On or about June 2, 2011, Rizzo, as principal, and Travelers, as surety, entered into a payment contract bond and were bound unto the owner, the state of Connecticut, for the payment of subcontractors who worked on the project known as " Independent Wheel Truing Facility at the New Haven Rail Yard" (project). The plaintiff entered into a subcontract agreement with Rizzo to supply building products on or about March 26, 2012, for use in the project, and Rizzo purchased and ordered building products and supplies from the plaintiff from March 26, 2012, until as recently as June 23 2015. The building products and supplies were used in the project and have not been paid for.

Despite demand, Rizzo has failed to pay the plaintiff the sum of $196, 268.28, exclusive of interest. Pursuant to the bond the plaintiff made a claim against the bond by letter dated January 15, 2015, and further amended its claim letter on February 2, 2015. Nonetheless, both Rizzo and Travelers have failed and refused to pay the plaintiff pursuant to its demand on the bond. Further, the plaintiff notified Rizzo that, according to General Statutes § 49-41a(c) ^[5] the amount of the plaintiff's claim is to be placed in an interest-bearing escrow account. Rizzo, however, has failed to set aside the funds in such an account as required by the statute.

The defendants filed the present motion to strike on September 25, 2015, on the grounds that counts one, three, six, seven, and eight and that paragraphs 12(4), 11(d), and 8(d) of counts three, five, and seven respectively are improper allegations. The defendants submitted a memorandum of law in support of their motion. The plaintiff filed a memorandum of law in opposition to the motion to strike on November 6, 2015. This matter was heard at short calendar on November 9, 2015.

DISCUSSION

I Legal Standard

" [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).

II Count One: General Statutes § § 49-41a and 49-42 Against Both Defendants

It is important to review the procedural history of this case before resolving the defendants' motion on count one. In the plaintiff's first amended complaint, dated March 18 2015, count one against the defendants alleged failure to pay pursuant to the bond, the defendants moved to strike that count on the ground that the plaintiff failed to state a claim because it had not sufficiently pleaded that it provided timely notice of its claim to the defendants as required by § 49-42, and additionally it failed to allege that Rizzo received payment from the state of Connecticut. This court granted the motion to strike count one, stating: " [W]hile the plaintiff alleges that it sold building materials to the defendant Rizzo Corp., it fails to allege the dates on which its performance began or ended in either the complaint or its attachments. Notice under § 49-42 must be provided 'not later than one hundred eighty days after the last date any such materials were supplied or any such work was performed by the claimant . . .' Because the plaintiff has not pleaded any facts regarding the last date it provided materials or otherwise performed, it cannot be determined if the plaintiff's notice was timely. Thus, the plaintiff has failed to sufficiently plead compliance with the notice provision under § 49-42. Accordingly, the defendants' motion to strike count one is granted." Northeast Panel Co. v. Rizzo Corp., Superior Court, judicial district of New Haven, Docket No. CV-15-6052574-S, (August 4, 2015, Wilson, J.) .

The plaintiff has since remedied the prior defect, which is reflected in the operative complaint. In paragraph three of the first count, the plaintiff alleges that Rizzo " purchased and ordered building products and supplies from the plaintiff from March 26, 2012, until as recently as June 23, 2015 . . ." Moreover, the complaint is dated August 26, 2015, which is within one hundred eighty days from the last date the plaintiff alleges such materials were supplied or any such work was performed by the plaintiff which was June 23, 2015. While the date and notice requirement has been satisfied since the previous motion to strike, the defendants still argue that (1) the plaintiff is required to plead that Rizzo received payment from the state; (2) the plaintiff has failed to state a legally sufficient cause of action against Travelers pursuant to General Statutes § 49-41; and (3) the plaintiff has failed to state a legally sufficient cause of action because the plaintiff has not attached a copy of the requisite notice of the claim on the bond. The plaintiff replies that the first count is legally sufficient because there is no requirement to specifically plead that Rizzo was paid.

" [Section] 49-42 is a remedial statute enacted to provide security for workers and materials suppliers unable to avail themselves of the protection of a mechanic's lien . . . Because [t]he statutory requirement of a bond is designed to protect and benefit those who furnish materials and labor to the contractor on public work, in that they may be sure of payment of their just claims, without defeat or undue delay . . . such statutory provisions are to be liberally construed." (Citation omitted; internal quotation marks omitted.) Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 373, 623 A.2d 483 (1993). Therefore, " [the court has] relied on the rule of liberal construction when the issue was the eligibility for statutory coverage of a particular class of subcontractors . . . or a particular type of supplier of materials." (Citation omitted.) Id., 373-74. " [I]f the statute itself imposes specific constraints, [the Supreme Court has] held these constraints to be mandatory; if the statute leaves room for construction, we have construed its requirements liberally in order to implement the statute's remedial purpose." Id., 374.

" Because § 49-42 was patterned after federal legislation popularly known as the Miller Act . . . we have regularly consulted federal precedents to determine the proper scope of our statute . . . The federal precedents, like our own, counsel liberal construction of statutory requirements other than those relating to specific time constraints . . . [A] requirement which is clearly made a condition precedent to the right to sue must be given effect, but in determining whether a provision is of that character the statute must be liberally construed so as to accomplish its purpose." (Citations omitted; internal quotation marks omitted.) Id.

Although the defendants maintain that the plaintiff is required to allege that Rizzo received payment in order to plead a cause of action under the statute, they do not point to any legal authority to support such a contention. Instead, the defendants directly rely on the language in § 49-41a(a), which provides that " any public work contract shall contain a provision that the general contractor is required to pay any amounts due to subcontractors, whether for labor performed or materials furnished, within thirty days after payment to the general contractor by the state or municipality." There is nothing in the statute or any case law that suggests that the plaintiff is required to plead that Rizzo received payment as a prerequisite to bringing a cause of action under the statute. Additionally, because the statute is remedial in nature, its provisions should not be construed so as to prevent the plaintiff from recovery. The plaintiff has pleaded that it has complied with the written demand provisions of § 49-41a and the notice provision of § 49-42; therefore, it should be allowed to proceed under the statute.

In regard to the defendants' argument that notice of claim on the bond was not attached, this potential defect is not fatal at this stage of the proceedings. " It is well established that a motion to strike must be...