DocketNumber: No. X04-CV-00-0121672-S
Judges: KOLETSKY, JUDGE.
Filed Date: 5/2/2001
Status: Non-Precedential
Modified Date: 4/18/2021
According to the allegations of the complaint, the first and second phases of the construction of the plant were to be substantially completed by March 31, 2001. On February 2, 2000, a heat recovery steam generator collapsed at the site, causing the deaths of two workers and significant property damage. The United States Occupational Safety and Health Administration ("OSHA") investigated the incident on February 3, 2000, closing down a portion of the project for a period of time. CT Page 5851
On March 21, 2000, the defendants sent a letter to Milford Power claiming that the collapse of the generator and subsequent OSHA investigation constitute "force majeure" events as defined in article 13.1 of the contract. On August 28, 2000, the defendants sent another letter to Milford Power claiming that a lack of available labor constitutes an additional "force majeure" event as defined in article 13.1 of the contract. Under the terms of the contract, the defendant contractors could be entitled to an adjustment of the contract price and extensions of the dates specified as substantial completion dates if timely notice of a valid "force majeure" event is provided.
The operative complaint, which is the amended complaint dated December 6, 2000,1 seeks declarations from this court that the claimed "force majeure" events do not qualify as "force majeure" events and that both notices were not sufficient in content or timely given to Milford Power. By motion dated November 15, 2000, the defendants move to dismiss plaintiff's complaint on the ground that its claim is not ripe and therefore not justiciable. The court heard oral argument on the defendants' motion to dismiss on February 23, 2001.
A "motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter. . . ." (Internal quotation marks omitted.)Sadloski v. Manchester,
"[T]he court, in deciding a motion to dismiss, must consider the allegations of the complaint in their most favorable light." (Citation omitted; internal quotation marks omitted.) Savage v. Aronson,
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." Mayer v. Biafore, Florek O'Neill,
The plaintiff in this action seeks declaratory relief. "A declaratory judgment may be employed only in solving a justiciable controversy. (Citation omitted.) There can be no such controversy if the interests of the parties are not adverse." Lipson v. Bennett,
The defendants claim that the alleged disagreement between the parties is abstract, that the claim is premature and dependent upon a number of contingencies which have not yet occurred, and that no practical relief can be afforded the plaintiff by this court. A review of the allegations in plaintiff's amended complaint does not support defendants' position. It is alleged that the subject contract provides for guaranteed substantial completion dates; that it contains a liquidated damages provision entitling Milford Power to specified sums for each day of delay; that the defendants informed Milford Power that the substantial completion dates will not be met because of the collapse of the heat recovery steam generator and OSHA investigation; that the defendants will become obligated to pay Milford Power over $4,000,000 for the projected delay under the liquidated damages provision of the contract; that the notice letters dated March 21, 2000 and August 28, 2000 claim certain events constitute "force majeure" events which could entitle the defendants to an equitable adjustment of the contract price and an extension of the substantial completion dates; that an actual controversy exists as to whether certain events constitute "force majeure" events as CT Page 5853 defined in the contract; and that the parties have been unable to resolve this dispute. The declaratory relief sought is a determination of the rights of the parties under the terms of the contract.
As Chief Justice Maltbie noted in Sigal v. Wise,
The court finds that, in accordance with the requisite conditions for declaratory judgments set forth in section 17-55 of the Practice Book, Milford Power "has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to [its] rights or other jural relations. . . ." Furthermore, "[t]here is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties. . . ." The plaintiff's claim is ripe and, therefore, justiciable. Accordingly, the defendants' motion to dismiss is denied.
Koletsky, J.