DocketNumber: No. CV-90-0383387, CV-90-0383389
Citation Numbers: 1995 Conn. Super. Ct. 12482-F
Judges: BERGER, J.
Filed Date: 11/20/1995
Status: Non-Precedential
Modified Date: 7/5/2016
On June 9, 1989, The Lane Construction Corporation (hereinafter, "Lane") contracted with the State of Connecticut to construct the North Central Connecticut Correction Facility in Suffield, Connecticut. On August 25, 1989, as required by General Statutes §
In December, 1989, Premium entered into a contract with the plaintiff, Trevex, Inc. (hereinafter, "Trevex"), whereby Trevex agreed to transport gravel and sand fill from Enfield, Connecticut to the North Central Facility. Similarly, Premium entered into a contract with the plaintiff Transporter Trucking, Inc. (hereinafter, "Transporter"), in which Transporter agreed to haul loads of material to the North Central Facility.
The plaintiffs, Transporter and Trevex, have filed similar two-count complaints against the defendants, Lane, Premium, and Seaboard. In Count One, directed at Lane and Premium, the plaintiffs seek contract damages for failure to pay for the trucking services. In Count Two, directed at Seaboard, the plaintiffs seek to recover under the bonding CT Page 12482-G provisions of General Statutes §
On October 21, 1994, Lane and Seaboard filed a motion to consolidate the present cases for the purpose of determining liability and on November 7, 1994, the court, Spada, J., granted the motions.
On December 7, 1994, Lane and Seaboard filed identical motions for summary judgment with respect to the complaints. Lane moves for summary judgment with respect to Count One on the ground that Lane is not a party to, or guarantor of, Transporter's and Trevex's contract with Premium and on the further ground that Lane does not owe Transporter and Trevex an equitable obligation. Seaboard moves for summary judgment with respect to Count Two on the ground that Transporter and Trevex have no standing under General Statutes §
"`The test [for the grant of a motion for summary judgment] is whether a party would be entitled to a directed verdict on the same facts.'" Id., 105-06. "A directed verdict is appropriate when the jury could not have reasonably and legally have reached any other conclusion." (Internal quotation marks omitted.) Boehm v. Kish,
To recover under a contract theory, Transporter and Trevex must be in privity of contract with Lane. Coburn v.Lenox Homes, Inc.,
2.
Similarly, the plaintiffs cannot recover under the doctrine of unjust enrichment. "The doctrine of unjust enrichment `is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another . . . The question is: Did he, to the detriment of someone else, obtain something of value to which he was not entitled?'" Monarch Accounting Supplies Inc. v. Prezioso,
General Statutes §
In determining whether Premium was a subcontractor, the court must focus on its duties: was it a mere supplier of materials to the prime contractor or an actual subcontractor? Both parties agree that if Premium was a supplier of materials, i.e., a materialman, and not a subcontractor, under federal law it may not recover under the bond. See, CliffordMacEvoy Co. v. United States ex. rel. Tompkins,
Whether a party is a subcontractor or a materialman is based on a functional, rather than a technical, definition.F. D. Rich Co. v. Industrial Lumber Co.,
In determining the substantiality of the relationship, federal courts have considered thirteen factors: "(1) the product supplied is custom fabricated; (2) the product supplied is a complex integrated system; (3) a close financial interrelationship exists between the companies; (4) a continuing relationship exists with the prime contractor as evidenced by . . . the requirement that the supplier's representative be on the job site; (5) the supplier is required to perform on site; (6) there is a contract for labor in addition to materials; (7) the term "subcontractor" is used in the agreement; (8) the materials supplied do not come from existing inventory; (9) the supplier's contract constitutes a substantial portion of the prime contract; (10) the supplier is required to furnish all the material of a particular type; (11) the supplier is required to post performance bond; (12) there is a backcharge for cost of correcting supplier's mistakes; and (13) there is a system of progressive or proportionate fee payment." (Footnotes omitted.) UnitedStates v. Aetna Casualty Surety Co.,
2.
In its memorandum in support of the motion for summary judgment, Seaboard argues that Premium is a materialman and is, therefore, precluded from recovery against the payment bond. Seaboard lists several factors to support this argument. First, Seaboard argues that Lane's purchase order agreement with Premium only required that Premium provide gravel and sand fill to Lane. Seaboard also argues that although Premium was required to provide gravel and sand fill CT Page 12482-K conforming to contract specifications, Premium did not provide customized or specialized materials. Finally, Seaboard argues that Lane did not delegate performance of the construction work of the North Central Facility to Premium nor did Lane have any control over Premium's other contractual relationships.
In their memoranda in opposition to Seaboard's motions for summary judgment, Transporter and Trevex argue that, based on several factors, Premium is a subcontractor. First, the plaintiffs argue that in the body of the agreement between Lane and Premium, Lane describes the agreement as a "contract agreement." Second, the plaintiffs argue that 100% of the gravel and sand fill was provided by Premium. Third, the plaintiffs argue that the gravel and sand fill account for approximately 20% of the materials for the North Central Facility. Fourth, the plaintiffs argue that because the transportation costs were separately stated on each invoice, because Lane had conversations with Transporter and Trevex's representatives, and because Transporter and Trevex's trucks were on the site on an almost daily basis, the transportation costs associated with the delivery were not so remote as to be unforeseen. Finally, the plaintiffs argue that they were required to meet detailed specifications in mixing the material and that the required materials could not be purchased from a number of unknown sources. In addition to these arguments, Trevex included an affidavit by its president, Trevor Thompson, attesting that "Premium material, Inc. had equipment [sic] on site at the project (bulldozers, rollers) and was involved in spreading and compacting material at the project." Trevex's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, Exhibit 3, ¶ 8.
In its reply memorandum and supplemental memorandum, Seaboard argues that the affidavit does not create a genuine issue of material fact and that the description of the agreement as a contract agreement, the requirement of conforming goods, and the foreseeability of the transportation costs do not transform Premium into a subcontractor.
3.
Several of the factors identified by the parties support Seaboard's conclusion that Premium is a materialman. First, whether a party is determined to be a subcontractor or a CT Page 12482-L materialman is based on substance, not form. As a result, whether Lane refers to its agreement with Premium as a "contract agreement" or a "purchase order agreement" is of little significance in determining whether Premium is a subcontractor or a materialman. Miller Equipment Co. v.Colonial Steel and Iron Co.,
However, two factors support the plaintiffs' argument that Premium was a subcontractor. First, the gravel and sand fill provided by Premium constitutes approximately 20% of the contract materials. Miller Equipment Co. v. Colonial Steel Iron Co., supra,
As a result of this equipment issue, it appears to this CT Page 12482-M court that there is a genuine issue of material fact as to whether Premium only supplied gravel and sand fill or whether Premium performed duties on the construction site and provided labor to Lane. Thus, there is a genuine issue of material fact as to whether Premium is a subcontractor or materialman and, consequently, whether Transporter and Trevex can recover under General Statutes §
Accordingly, Seaboard's motions for summary judgment with respect to Count Two of Transporter and Trevex's substituted complaints are denied.
Berger, J.
united-states-of-america-for-the-use-of-harold-bryant-dba-rio-grande-sand , 370 F.2d 293 ( 1966 )
miller-equipment-company-v-colonial-steel-and-iron-company-troitino-and , 383 F.2d 669 ( 1967 )
The United States for the Use and Benefit of Conveyor ... , 981 F.2d 448 ( 1992 )
Kakadelis v. DeFabritis , 191 Conn. 276 ( 1983 )
Coburn v. Lenox Homes, Inc. , 173 Conn. 567 ( 1977 )
American Masons' Supply Co. v. F. W. Brown Co. , 174 Conn. 219 ( 1978 )
Clifford F. MacEvoy Co. v. United States Ex Rel. Calvin ... , 64 S. Ct. 890 ( 1944 )
Monarch Accounting Supplies, Inc. v. Prezioso , 170 Conn. 659 ( 1976 )
F. D. Rich Co. v. United States Ex Rel. Industrial Lumber ... , 94 S. Ct. 2157 ( 1974 )
JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of ... , 98 S. Ct. 873 ( 1978 )