R.A. Civitello Co. v. City of New Haven, 3310

• Decision Date: 11 February 1986
• Docket Number: No. 3310,3310
• Citation: 504 A.2d 542,6 Conn.App. 212
• Court: Connecticut Court of Appeals
• Parties: The R.A. CIVITELLO COMPANY v. CITY OF NEW HAVEN.

Page 542

504 A.2d 542

6 Conn.App. 212

The R.A. CIVITELLO COMPANY v. CITY OF NEW HAVEN.

No. 3310.

Appellate Court of Connecticut.

Argued Nov. 13, 1985.

Decided Feb. 11, 1986.

Charles G. Albom, Corp. Counsel, New Haven, with whom, on brief, was Carolyn W. Kone, Asst. Corp. Counsel, Bridgeport, for appellant (named defendant).

Robert B. Cohen, with whom, on brief, were Jacob H. Channin and Susanne Gordon, Hartford, for appellee (third party defendant Edward Larrabee Barnes).

William F. Gallagher, with whom, on brief, were Robert J. Gillooly and Elizabeth A. Gallagher, New Haven, for appellee (third party defendant Spiegel & Zamecnik, Inc.).

Vincent M. DeAngelo, with whom were Louis B. Blumenfeld, Lorinda S. Coon, and on brief, Eugene A. Cooney, Hartford, for appellee (third party defendant Van Zelm, Heywood & Shadford, Inc.).

Before HULL, DALY and BIELUCH, JJ.

HULL, Judge.

This is an appeal from the rendering of summary judgment for three third party defendants on third party complaints brought by the defendant city of New Haven.

The R.A. Civitello Company, a construction contractor, brought suit against the city of New Haven in December, 1977, claiming damages arising out of a 1972 contract between the parties for the construction of a public school in the city. Civitello alleged that the city had caused lengthy delays in its performance of the contract work and as a result it had suffered damages. The city denied the allegations in this underlying action and later brought the three third party actions involved in this case. These actions were initiated as follows: (1) against Edward Larrabee Barnes, the architect hired by the city; (2) against Spiegel and Zamecnik, Inc., the structural engineering company retained by Barnes; and (3) against Van Zelm, Heywood and Shadford, Inc., the mechanical engineering company retained by Barnes.

In its third party actions, the city claimed breach of contract and negligence against Barnes, and negligence against the others. Each third party defendant filed a motion for summary judgment on the ground that the city's negligence claim was barred by the three year statute of limitations contained in General Statutes § 52-584. ¹ Barnes made the additional claim that the contract action against him was barred by the six year statute of limitations contained in General Statutes § 52-576. ² The city also moved for partial summary judgment against the three third party defendants on their respective special defenses of statute of limitations on the ground that such special defense was barred by the doctrine of governmental immunity. The parties agreed in the trial court, and on appeal, that all acts giving rise to the city's claims against the third party defendants occurred before September 1, 1974, so that, if the three year statute of limitations; General Statutes § 52-584; applied, the city's claims against the third party defendants would be barred, and, if the six year statute; General Statutes § 52-576; applied, the contract claim against Barnes would be barred. It was also agreed that if the seven year statute of limitations covering architects and engineers; General Statutes § 52-584a; applied, the city's claims would not be barred.

The trial court thus considered two clear cut issues: (1) whether the city of New Haven was vested with governmental immunity so that the city was immune from a statute of limitations running against it; and (2) if the city was not so immune, what statute of limitations applied to the city's third party claims against the three third party defendants.

The court granted the third party defendants' motions for summary judgment. ³ It held that the rights asserted by the city were proprietary rights and, consequently, that the city was not immune from the defense of statute of limitations. The court further held that subsection (d) of General Statutes § 52-584a prevented the seven year limitation from being operative. The court reasoned that to hold otherwise would extend the three year and six year time periods, running from the accrual of causes of action, to a seven year time period, running from substantial completion of performance. Such a decision, the court stated, would be contrary to subsection (d). Thus, the court concluded that the city's negligence and contract actions were barred by General Statutes § 52-584 and 52-576 and rendered summary judgment for the third party defendants. The court thereafter rendered judgment for the third party defendants and against the city in the third party actions.

The city, as third party plaintiff, appeals from the judgment rendered against it and raises the two issues considered below: (1) whether the court erred in granting summary judgment to the third party defendants and in ruling that the city, in hiring an architect or structural engineer in connection with the construction of a public school building, was engaged in a proprietary function and not a governmental function, and was therefore bound by the ordinary statutes of limitations governing negligence and contract actions respectively; ⁴ and (2) whether the court erred in concluding that § 52-584a, which expressly allows actions against architects and engineers for their work to be brought within seven years after substantial completion of that work, did not supersede the general three and six year statutes of limitations applicable to tort and contract actions which run after a cause of action accrues and therefore erred in granting summary judgment against the city. ⁵

I

WHETHER THE CITY WAS IMMUNE FROM THE SPECIAL DEFENSE OF

STATUTE OF LIMITATIONS

"The Connecticut Supreme Court has repeatedly stated that, as respects public rights, 'a subdivision of the state, acting within its delegated governmental capacity, is not impliedly bound by the ordinary statute of limitations.' State v. Goldfarb, 160 Conn. 320, 326, 278 A.2d 818 (1971); New Haven v. Torrington, 132 Conn. 194, 204, 43 A.2d 455 (1945); Bridgeport v Schwarz Bros. Co., 131 Conn. 50, 54, 37 A.2d 693 (1944)." (Emphasis added.) Department of Transportation v. Canevari, 37 Conn.Sup. 899, 900-901, 442 A.2d 1358 (1982). The distinction between governmental and nongovernmental functions was clearly stated in Winchester v. Cox, 129 Conn. 106, 109, 26 A.2d 592 (1942): "The functions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes, and those of a proprietary nature, where it carries on activities for the particular benefit of its inhabitants." (Citations omitted.)

Although this case involves the city itself rather than its board of education, the reasoning of the court in Board of Education v. Dow Chemical Co., 40 Conn.Sup. 141, 142-43, 482 A.2d 1226 (1984), concerning sovereign immunity, is instructive. "The protections offered by the doctrine of sovereign immunity have been extended to agents of the state acting in its behalf. Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). A board of education is an agency of the state in charge of education in a town. Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265 (1974). Local boards of education are not agents of the state, however, in performing each and every mandated function. Cheshire v. McKenney, 182 Conn. 253, 257, 438 A.2d 88 (1980). Local boards of education act as agents of the state when fulfilling the statutory duties imposed upon them by the legislature in light of the state constitutional mandate to furnish public education. Cheshire v. McKenney, supra, 257-58, 438 A.2d 88. Local boards of education also are agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality's limits. Id., 258-59, 438 A.2d 88; Cahill v. Board of Education, supra, 187 Conn. 101-102, 444 A.2d 907; see General Statutes §§ 10-220, 10-240.

"In determining whether a local school board is afforded the protections consistent with the doctrine of sovereign immunity, the courts look to whether the suit would operate to control or interfere with the activities of the state. Cahill v. Board of Education, supra, 102, 444 A.2d 907; Lostumbo v. Board of Education, 36 Conn.Sup. 293, 295, 418 A.2d 949 (1980). The maintenance of school property is not encompassed within the educational activities of the state. Lostumbo v. Board of Education, supra, 294-95, 418 A.2d 949. The funding source for such building and maintenance is primarily a local responsibility. Id. We conclude that a local school board acting to recover damages arising from the construction of the physical plant of a school building is not acting as a state agent and, therefore, would not be entitled to employ the doctrine of sovereign immunity as a shield from the defense of the statute of limitations." Board of Education v. Dow Chemical Co., supra, 40 Conn.Sup. 142-43, 482 A.2d 1226.

The Supreme Court further articulated the appropriate test as follows. "[A] local board of education is bound by and may sue or be sued on contracts in the same manner as municipal corporations. 17 McQuillin, Municipal Corporations (3d Ed.1968 Rev.) § 49.60, p. 310; 1A Antieau, Municipal Corporation Law (1982) § 10.98; see Light v. Board of Education, 170 Conn. 35, 41, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 520, 356 A.2d 109 (1975); Waterbury Teachers Assn. v. Board of Education, 162 Conn. 390, 416, 294 A.2d 546 (1972). A breach of contract between a local board of education and its employees does not give rise to a conclusion that such an action would operate to control the activities of the state or subject it to liability. Employment contracts in such circumstances remain primarily the function of the local communities, and any damages resulting from...