WESCONN v. KONOVER CONSTRUCTION, No. X10 UWYCV05-4013439 (Oct. 1, 2009)

DUBAY, J.

Introduction

Before the court are two motions for summary judgment in this action commenced by the plaintiff, Wesconn Company (Wesconn), by writ summons and complaint dated June 6, 2005, with a return date of June 28, 2005. Oral argument was held on September 14, 2009. This matter arises out of the construction of a new high school in the town of North Haven, Connecticut. The plaintiff was hired by the defendant, Konover Construction Corporation (Konover) to apply cementitious fire resistant material to structural members and other surfaces. The cementitious material is sprayed onto surfaces and the contract documents required the plaintiff to follow both the Project Specifications and the Manufacturer's Specifications. The plaintiff alleges that the defendant's interfering conduct impaired its ability to adhere to the Project Specifications and the Manufacturer's Specifications, thereby, making it impossible to meet the requirements of its subcontract with Konover.

The motions for summary judgment were filed by Konover and Continental Casualty, surety on the contract with Konover. Continental Casualty incorporated Konover's arguments for its motion for summary judgment motion. The remaining defendants in the 33-count complaint are The Town of North Haven, for whom the plaintiff has withdrawn his complaint, Agency Construction Management who according to its' counsel is no longer an ongoing concern, and, has been defaulted for failure to plead, and C.R. Klewin. Klewin and Agency Construction Management are agents and/or representatives of the Town of North Haven.

Counts for breach of oral contract, breach of written contract, unjust enrichment, quantum meruit, negligent misrepresentation, intentional misrepresentation, and breach of good faith and fair dealing were brought against Konover (counts 1-7), Town of North Haven (counts 9-15), Agency Construction Management (counts 17-23), and C.R. Klewin (counts 25-31). A count of tortuous interference with business expectation/employment contract was brought against North Haven (count 16), Agency Construction Management (count 23), and C.R. Klewin (count 32). A CUTPA claim was brought against Konover (count 8). Lastly a claim was brought against Continental Casualty for failure to pay (count 33).

Konover claims it is entitled to summary judgment on all counts as Wesconn's claims are precluded and waived due to the settlement agreement reached between Konover and Wesconn on February 21, 2005. Alternatively, Konover contends that it is entitled to summary judgment or partial CT Page 16238 summary judgment as (1) claims for monetary damages resulting from delays and out of sequence work are precluded by paragraph 9(d) of the subcontract with Wesconn; (2) Claims for damages were waived by executed waivers; (3) Consequential damages are prohibited by paragraph 4.3.10 of the General Conditions to the Town of North Haven/Konover Agreement which is incorporated into the Wesconn Subcontract by paragraph 2(b); (4) Any claims Wesconn may have for overhead and profit stemming from extra work performed are precluded by Paragraph 9(c) which limits Wesconn's recovery to 10 percent for the combined overhead and profit of the additional work; (5) Personal income lost by the principal of Wesconn cannot be recovered as he is not a party to this suit; (6) Konover and Wesconn only entered a written contract so there can be no recovery for breach of an oral contract; (7) Wesconn cannot recover on its claim for unjust enrichment as there was a written contract with Konover; and (8) inasmuch as Wesconn cannot prove its CUTPA claim and is not seeking damages in conjunction with its CUTPA claim Konover is entitled to summary judgment.

Wesconn, in opposition to the motion for summary judgment argues that its expert witnesses' reports will detail how Konover interfered, interrupted and frustrated its performance in fulfilling its contractual obligations. Additionally, Wesconn argues (1) that when the delay was caused by the contractor's bad faith, gross negligence, unreasonable and uncontemplated delays, or breach of a fundamental obligation of the contract, that clauses in the contract that would exculpate a contractor are strictly construed and will not be enforced; (2) The subcontract does not waive consequential damages and that the subsection 2(b) of Konover's contract with the Town of North Haven does not pass through to Wesconn; (3) Wesconn is entitled to overhead and profit; (4) Wesconn has a viable CUTPA claim; (5) Issues of fact exist as to the existence of oral agreements; (6) No claims have been waived by Wesconn; and (7) there exist facts that demonstrate that Wesconn may be entitled to Attorneys fees.

Discussion

"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. Practice Book § [17-49]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue CT Page 16239 of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . . Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial. ([I]ndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists)." (Citations omitted; internal quotation marks omitted.) Gold v. Town of East Haddam, 290 Conn. 668, 677-78, 966 A.2d 684 (2009).

Konover contends that all of Wesconn's claims are barred by the execution of a settlement agreement. (Amended Answer, Special Defense and Setoff, Twelfth Special Defense (as to Counts One through Eight), dated May 19, 2009.) The settlement agreement was signed by both parties on February 21, 2005 and the relevant language to the court's analysis reads: "This is an outline of the global settlement between Konover Construction Corporation and Wesconn Co. This settlement will including the following . . . Konover Construction Corporation, on behalf of the Town of North Haven offers a settlement in the amount of $85,000, in addition to the $40,000 already paid to Wesconn, to settle all claims by Wesconn Company to date. This settles all issues to date. Wesconn will hold the Town of North Haven and Konover Construction Corporation harmless for future claims for work performed for the duration of the project.' (Affidavit of Melvin Strauss with attached Settlement Agreement, Exhibit D, Konover's Motion for Summary Judgment.) [Mr Vellrath testified that he signed the settlement agreement (Velrath deposition at 332-33, excerpts attached as Exhibit E to Konover's Motion for Summary Judgment)]

"Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. [T]he intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be CT Page 16240 given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms. When the disputed agreement is between sophisticated commercial parties with relatively equal bargaining power, this court is more likely to apply a plenary standard of review." (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 409-10, 973 A.2d 1229 (2009).

The language of the contract is unambiguous. It specifically states that "Konover . . . offers a settlement in the amount of $85,000 . . . paid to Wesconn, to settle all claims by Wesconn Company to date." The agreement reiterates the point by stating "[t]his settles all issues to date." Additionally the agreement specifically states at the beginning that it is a "global settlement between Konover Construction Company and Wesconn Co." Global is defined as "of, relating to, or involving the entire world: worldwide . . . of, relating to, or applying to a whole." Merriam-Webster's Collegiate Dictionary (10 Ed. 1999).

It is unquestionable that the settlement is to address all outstanding issues between Wesconn and Konover. This is further supported by specifically listing what the settlement will include and exclude. `This settlement will include the following: All outstanding time tickets and claims for additional work from August 1, 2004 to the date of the memo" as well as "all spray fireproofing repairs to Area E exterior. Execution of spray fireproofing in all remaining spaces in Area D. All costs incurred to supplement Wesconn's work Saturday 2/19/05 and Sunday 2/20/05." And, "all costs to perform additional work on 3rd floor, Areas A, B, and C . . . Not included in this settlement are the following: Owner change order for the x bracing in area C . . . Owner change order for patching seismic clips at dormers." (Affidavit of Melvin Strauss with attached Settlement Agreement, Exhibit D, Konover's Motion for Summary Judgment.) Given the specificity of the settlement agreement one cannot imagine how claims that Konover interfered and frustrated Wesconn in performing its contractual duties were not addressed when drawing up the settlement agreement since the agreement covers "[a]ll outstanding time tickets and claims for additional work from August 1, 2004 to the date of the memo." Wesconn was offered a payment of the $85,000 in addition to the $40,000 already received prior to the settlement agreement and there is nothing that indicates that this offer does not settle all issues between the parties up to the date of execution of the agreement.

The original contract between Wesconn and Konover was executed on August 2, 2004.

The Settlement Agreement details how future claims that Wesconn may make will be addressed. "Wesconn will hold . . . Konover . . . harmless CT Page 16241 for future claims for work performed for the duration of the project." Harmless is defined as "free from harm, liability, or loss." Merriam-Webster's Collegiate Dictionary (10 Ed. 1999). Wesconn has specifically agreed that Konover will be free from liability for future claims for the duration of the project. That the Settlement Agreement seeks to eliminate future claims is further supported by specifically noting that "no provision is made for future clean up costs incurred. In the event Konover deems that cleanup is required by Wesconn, Konover will notify Wesconn of the specific issues." Provisions were also made for possible damage to Wesconn's work by other contractors as Wesconn was "to provide patch material to repair damages by other trades . . . and agrees to instruct other trades on proper mix/application of such." If additional provisions were to be made for alleged interference or interruption that could take place in the future, thereby frustrating Wesconn in its performance, then the agreement would have stated so, but it did not.

For the forgoing reasons the motions for summary judgment are granted. Judgment shall enter for the defendant Konover as to counts one, two, three, four, five, six, seven and eight. Judgment shall enter for the defendant Continental Causalty as to count thirty-three.