State v. Lombardo Bros. Mason Contractors

• Decision Date: 23 February 2009
• Docket Number: No. X01-UWY-CV-08-501068S.,X01-UWY-CV-08-501068S.
• Citation: 51 Conn.Sup. 265,980 A.2d 983
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. LOMBARDO BROTHERS MASON CONTRACTORS, INC., et. al.

980 A.2d 983

51 Conn.Sup. 265

STATE of Connecticut v. LOMBARDO BROTHERS MASON CONTRACTORS, INC., et. al.

No. X01-UWY-CV-08-501068S.

Superior Court of Connecticut, Complex Litigation Docket at Waterbury.

February 23, 2009.

Richard Blumenthal, attorney general, and McCarter & English, LLP, Hartford, for the plaintiff.

Morrison Mahoney, LLP, Thomas C. Federico, Hartford and Garcia & Milas, New Haven, for the named defendant.

Litchfield Cavo, LLP, Avon, for the defendant A & J Caulking Company, Inc.

Levy & Droney P.C., Farmington, for the defendant American Casualty Company of Reading, Pennsylvania.

Nuzzo & Roberts, L.L.C., Cheshire, for the defendant Daniel's Caulking et al.

Howard Kohn Sprague & Fitzgerald, LLP, Hartford, for the defendant Arborio Corporation.

Michael P. Byrne, Stamford, for the defendant Di Salvo Ericson Group, Structural Engineers, Inc.

Ryan Ryan Deluca, LLP, Stamford, for the defendant F.B. Mattson Company, Inc.

Pepe & Hazard and Frank A. Sherer III, Hartford, for the defendant Gilbane, Inc.

Neubert, Pepe & Monteith, P.C., New Haven, for the defendant Hartmann-Cox Architects.

O'Connell Flaherty & Attmore, LLC, Danbury, for the defendant Hohmann & Barnard, Incorporated.

Wiggin & Dana, LLP, Hartford, for the defendant Johnson Controls, Inc.

Wilson Elser Moskowitz Edelman & Dicker, LLP, Stamford, for the defendant Kamco Supply Corporation of New England.

Kenny O'Keefe & Usseglio, P.C., Hartford, for the defendant Karnak Corporation.

Wolf Horowitz & Etlinger, LLC, Hartford, for the defendant Peerless Insurance Company.

Danaher Lagnese & Sacco, P.C., Hartford, for the defendant Plascal Corporation.

Sharp Shields & Smith and Holahan Gumpper & Dowling, Fairfield, for the defendant Premier Roofing Company, Inc., et al.

Williams Walsh & O'Connor, LLC, North Haven, for the defendant ProTect of Connecticut, Inc.

Constantine Antipas, Mystic, for the defendant Special Testing Laboratories, Inc.

Kenneth Naide, Boston, MA, for the defendant Fox Steel Company.

Kenneth B. Walton, Leslie King and Patricia B. Gary, Boston, MA, for the defendant S/L/A/M Collaborative, Inc.

McNamara & Kenny, for the defendant Walter D. Sullivan Company, Inc.

Pepe & Hazard and Regnier Taylor Curran & Eddy, Hartford, for the defendant USA Contractors, Inc.

Milber Makris Plousadis & Seiden, LLP, Newtown, for the defendant van Zelm Heywood & Shadford, Inc.

Jason A. Lien, Minneapolis, MN, James D. O'Connor, Washington, DC, Martin S. Fallon, Minneapolis, MN and LeClair-Ryan, Los Angeles, CA, for the defendant Apogee Wausau Group, Inc.

CREMINS, J.

I BACKSTORY

The plaintiff, the state of Connecticut, brought suit by service of a complaint dated February 14, 2008, against fifteen defendants. There is also a first amended complaint dated August. 8, 2008 (first amended complaint). In the second amended complaint now before the court, dated October 17, 2008 (second amended complaint), the state asserts claims against fifteen defendants and fourteen apportionment defendants for the alleged defective design and construction of the University of Connecticut School of Law library (law library or project).

In the second amended complaint, the state alleges that it acquired the Hartford campus of the University of Connecticut School of Law in the 1980s and subsequently decided to build a new law library. In paragraph forty-one, the state alleges that "[t]he [p]roject was designed starting in 1992 and construction commenced in 1994, with completion in 1996." Additionally, the state alleges in paragraph forty-two that "[t]he [s]tate began occupying the [l]ibrary on January 31, 1996."

The state further alleges in paragraphs forty-three and forty-four that "[d]uring the months and years following completion of the [p]roject and occupancy by the [s]tate [in 1996], the [s]tate began to experience problems with water intrusion into the [l]ibrary," and "that in the [2000s] the [s]tate retained forensic engineers to investigate the full extent and likely causes of the problem."

This memorandum of decision addresses the following motions:

1. The motion to strike filed by the defendant A & J Caulking Company, Inc., on November 13, 2008, and directed at count twenty-two of the second amended complaint (negligence).

2. The motion to strike filed on October 1, 2008, by the defendant American Casualty Company of Reading, Pennsylvania (American Casualty), and directed at count twenty-six of the first amended complaint (performance bond).

3. The objection filed by the defendant Daniel's Caulking to the state's motion to strike its first and second special defenses, dated November 3, 2008 (statute of limitations and laches), directed at count twenty-one of the first amended complaint (negligence).

4. The objection filed by the apportionment defendant Andrew Peterson to the state's motion to strike his first and second special defenses, dated December 5, 2008 (statute of limitations and laches), directed at count thirty-two of the second amended complaint (negligence).

5. The motion to strike dated October 1, 2008, filed by the defendant Arborio Corporation, directed at count ten of the first amended complaint (negligence) and supplemental motion to strike dated November 17, 2008, directed at count forty of the second amended complaint (breach of fiduciary duty).

6. The motion to strike dated November 13, 2008, filed by the apportionment defendant Di Salvo Ericson Group, Structural Engineers, Inc. (Di Salvo), directed at count thirty-eight of the second amended complaint (negligence) and objection to the state's motion to strike Di Salvo's special defense dated November 13, 2009 (statute of limitations).

7. The motion to strike dated October 1, 2008, filed by the defendant F.B. Mattson Company, Inc. (F.B. Mattson), directed at count seventeen (breach of contract) and count eighteen (negligence) of the first amended complaint.

8. The motion to strike dated October 1, 2008, filed by the defendant Gilbane, Inc. (formerly known as Gilbane Building Company), directed at count five (negligence), count six (breach of contract), count seven (negligent misrepresentation), count eight (intentional misrepresentation) and count nine (breach of fiduciary duty) of the first amended complaint.

9. The motion to strike dated November 14, 2008, filed by the defendant Hartmann-Cox Architects, directed at count four of the second amended complaint (negligence).

10. The motion to strike dated October 1, 2008, filed by the defendant Hohmann & Barnard, Incorporated, directed at count twenty-four of the first amended complaint (product liability).

11. The motion for summary judgment dated November 17, 2008, filed by the apportionment defendant Johnson Controls, Inc., directed at count thirty-five of the second amended complaint (negligence).

12. The motion to strike dated November 17, 2008, filed by the apportionment defendant Kamco Supply Corporation of New England, directed at count thirty-three of the second amended complaint (product liability).

13. The motion to strike dated November 17, 2008, filed by the apportionment defendant Karnak Corporation, directed at count thirty-seven of the second amended complaint (product liability).

14. The motion to strike dated September 30, 2008, filed by the defendant Lombardo Brothers Mason Contractors, Inc. (Lombardo), directed at count thirteen (breach of contract), count fourteen (negligence), count fifteen (negligent misrepresentation) and count sixteen (intentional misrepresentation) of the first amended complaint.

15. The motion to strike dated October 1, 2008, filed by the defendant Peerless Insurance Company (Peerless), directed at count twenty-five of the first amended complaint (performance bond).

16. The December 1, 2008 objection to the state's motion to strike filed by the apportionment defendant Plascal Corporation, directed to the first and second special defenses (abandonment and statute of limitations) to count thirty-six of the second amended complaint (product liability).

17. The motion to strike dated November 4, 2008, filed by the apportionment defendants Premier Roofing Company, Inc. (Premier), and Titan Roofing, Inc. (Titan), directed at count thirty (Premier — negligence) and count thirty-one (Titan — negligence) of the second amended complaint.

18. The motion to strike dated October 1, 2008, filed by the defendant ProTect of Connecticut, Inc., directed at count nineteen of the first amended complaint (negligence).

19. The motion to strike dated October 1, 2008, filed by the defendant Special Testing Laboratories, Inc., directed at count eleven (negligence) and count twelve (negligent misrepresentation) of the first amended complaint.

20. The motion to strike dated October 1, 2008, filed by the defendant Fox Steel Company, directed at count twenty of the first amended complaint (negligence).

21. The motion for summary judgment dated September 29, 2008, filed by the defendant S/L/A/M Collaborative, Inc., as to count one (negligence), count two (breach of contract) and count three (breach of fiduciary duty) of the first amended complaint.

22. The motion to strike dated November 14, 2008, filed by the apportionment defendant Walter D. Sullivan Company, Inc., directed at count thirty-four of the second amended complaint (negligence).

23. The motion to strike dated November 14, 2008, filed by the apportionment defendant USA Contractors, Inc. (formerly known as United Stone), directed at count twenty-eight of the second amended complaint (negligence).

24. The motion to strike dated November 17, 2008, filed by the apportionment defendant van Zelm Heywood & Shadford, Inc., directed at count thirty-nine of the second amended complaint (negligence).

25. The motion for summary judgment dated October 1, 2008, filed by the defendant Apogee Wausau Group, Inc. (doing business as Wausau Windows and Wall Systems, formerly known as Wausau Metal Corporation), directed at count...