DocketNumber: File No. CV980578088S
Citation Numbers: 738 A.2d 1179, 46 Conn. Super. Ct. 101, 46 Conn. Supp. 101
Judges: RITTENBAND, J.
Filed Date: 8/16/1999
Status: Precedential
Modified Date: 1/12/2023
This action has been brought in two counts. Count one is in negligence, and count two is in breach of contract. This court has already, orally, granted summary judgment as to count one based upon the fact that the statute of limitations had expired in favor of the defendant as to the negligence claim when the suit was instituted on or about February 18, 1998. That oral granting of summary judgment to the defendant on the first count is hereby ratified and reaffirmed.
As for the second count, breach of contract, the defendant has moved for summary judgment on two grounds. First, the defendant claims that there is a liquidated damages clause in the contract which limits a judgment to a sum equal to the total of one half of the year's monitoring payments or $500, whichever is less, "as liquidated damages and not as a penalty." The defendant claims that one half of the year's monitoring payments amounts to $198.44.
Second, the defendant claims that, as a matter of law, the failure of an alarm system is not the proximate cause of damages allegedly sustained as a result of the *Page 103
theft and relies on Vastola v. Connecticut Protective System,Inc.,
The plaintiffs have countered with a brief in opposition to these two claims and have added the claim that plaintiff Beth Wyer, wife of the named plaintiff, was not a signatory to the contract, and, therefore, cannot be held liable for the liquidated damages defense.
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v.Graham,
Second, this court finds that Vastola is not conclusive as to the facts of the present case. Vastola overturned the finding by the trial court on behalf of the plaintiff because the trial court had decided by inference and/or speculation that the damages were proximately caused by the breach of contract. The court in Vastola stated that: "It is a reasonable inference that someone would have heard the bell if it had rung. Beyond that, it cannot be known what would have happened. We may speculate whether the hearer would have known that it was a burglar alarm, whether he would have ventured to interfere, whether he would have succeeded in frightening away the intruder in time to prevent the larceny, and whether he would have summoned the police in time to capture or frighten away the burglar." Vastolav. Connecticut Protective System, Inc., supra,
However, although the Supreme Court found that the "meager facts found in this particular case"; id., 20; did *Page 105 not reasonably support an inference that the defendant's negligence was a proximate cause of the loss by burglary, the court did leave open the possibility of a finding of proximate cause based on a different set of facts. The court stated that: "There is no finding that there were people in the street at this early morning hour, that there was a police officer on patrol in the neighborhood, or that there was a police station in the vicinity." Id., 21.
In the present case, in an affidavit dated June 10, 1999 by the named plaintiff, it is clear that there were more substantial facts on which to rely for probable cause than in Vastola. In paragraph 5 of that affidavit, the named plaintiff states that: "Trooper Megin, the resident trooper, responded immediately being just down the road at the time, and the perpetrator fled, having taken most of our jewelry but leaving other valuables in plain sight, obviously being frightened off by the motion alarm which eventually went off and the police siren." (Emphasis added.)
The affidavit further states that if the alarm had been properly wired, the intruder may not have entered the house at all or would have been caught by the trooper who arrived almost at the time the perpetrator fled. The important part of this latter statement is the factual statement that the trooper arrived almost at the time the perpetrator fled, leading to a reasonable inference that if the alarm had gone off properly, the trooper would have arrived before the perpetrator fled. It may well be that the close proximity of the trooper to the house and the time at which he arrived just prior to the fleeing of the perpetrator may not be sufficient for the trier of fact to draw the inference that there was proximate cause. However, in the present case, these facts as set forth in the affidavit go beyond the "meager" facts in Vastola. In any event, whether the trier of fact finds these allegations or statements to be true and *Page 106 whether they rise under all the circumstances of the present case to a basis for probable cause is an issue of fact which should be decided by the trier of fact. The facts in the present case as alleged by affidavit clearly go beyond the meager facts inVastola. Therefore, Vastola is not applicable to the present case, and there is a genuine issue of fact as to the veracity or validity of these facts, and it is an issue of fact for the trier to decide whether these additional conditions are sufficient to warrant a finding of proximate cause after proximate cause has been explained by the trial court in a jury case or by its own knowledge in a court trial. It must be remembered that Vastola was a case in which a judgment was entered for the plaintiff by the trier of fact, namely, the judge, in a court case, and all the evidence had been produced. The Supreme Court believed that the evidence produced was inadequate for the trier of fact to draw the inference it did. Here, we are talking about a motion for summary judgment, and based upon Vastola, it is clearly up to the trier of fact to determine whether these additional facts are sufficient to constitute proximate cause. The fact that inVastola the issue was decided, although incorrectly, according to the Supreme Court, by the trier of fact, certainly indicates that it is up to the trier of fact to make this determination and that, therefore, it is an issue of fact to be determined. Accordingly, these issues cannot be decided, in the present case, on a motion for summary judgment.
The third issue is the enforceability of the liquidated damages provisions. Paragraph 12A of the contract states in pertinent part that the defendant is not an insurer and that insurance, if any, covering property loss or damage, shall be obtained by the plaintiffs, and that the payments provided for are based solely on the value of the services as set forth and are unrelated to the value of the clients' property. *Page 107
Paragraph 12B states further that the plaintiffs acknowledge that it is impractical and extremely difficult to fix the actual damages which may proximately result from the failure to perform any of the defendant's obligations because of, among other things, the uncertain amount or value of the plaintiffs' property or the property of others which may be lost or damaged, the uncertainty of the response time of the police or other authority, and, the inability to ascertain what portion, if any, of any loss would be proximately caused by the defendant's failure to perform. The next paragraph, 12C, describes the limitation of one half of the year's monitoring payments or $500, whichever is less, "as liquidated damages and not as a penalty". In New York Life Ins. Co. v. Hartford National Bank Trust Co.,
This court finds that these provisions have not been met. The damages were not uncertain or difficult to prove. The plaintiffs came up with the figure of $6800 in lost jewelry as damages. The plaintiffs easily ascertained that amount, and certainly, as in a jewelry insurance floater on a homeowner's policy, (and the court recognizes that the defendant has rightfully claimed that it is not an insurer) a list or inventory of the jewelry could have been furnished and checked at or shortly after the time of the execution of the contract. As for whether the parties intended to liquidate damages in advance, there is evidence that the plaintiffs did not so *Page 108 intend despite the language in the contract which will be described hereafter. As to whether the amount is reasonable because it is not greatly disproportionate to the amount of damages which the parties assumed at the time of their contract would be sustained if the contract were breached, this court finds that the amount is clearly greatly disproportionate. The actual damages were $6800, and the amount of liquidated damages claimed by the defendant is only $198.44. That is clearly greatly disproportionate. For these reasons, failing to meet at least two of the three requirements and possibly the third, the court finds that this language in the contract is not a proper liquidated damages clause and, is, therefore, not enforceable.
The fourth and final issue is breach of contract by the defendant. Paragraph 12D of the contract provides that: "In the event that the client [plaintiffs] wishes dealer [defendant] to assume greater liability, client may, as a matter of right, obtain from dealer a higher limit by paying an additional amount to dealer, and a rider shall be attached hereto setting forth such higher limit and additional amount, but this additional obligation shall in no way be interpreted to hold dealer as an insurer." (Emphasis added.)
The court recognizes that, according to the provisions of paragraph 161 of the contract, anything or any statement or representation made that is not in the contract is not part of the contract. According to paragraph 7 in the affidavit dated May 12, 1999 by the named plaintiff, *Page 109 however, he claims that he was assured by the defendant that the purchase as a matter of right of a higher limit of liability of the defendant would not be necessary. Paragraph 7 of that affidavit states in full: "Despite knowing of our concerns, I was never offered nor given the opportunity to obtain any additional coverage for the jewelry from Sonitrol as I was assured it wouldnot be necessary." (Emphasis added.) This representation by the defendant may not be in the contract itself, but it certainly appears to be a breach of that aforementioned portion of the contract because, depending upon what was said, the defendant dissuading the plaintiff from obtaining a higher limit of liability despite his absolute right to obtain the same would be a misrepresentation that would constitute a breach of the contract. At the very least, this is an issue of fact to be decided by the trier of fact.
The court also notes from the yellow copy of the contract submitted into evidence that the terms on the back, including the limit of liability provisions, are essentially unreadable. If the plaintiffs never saw or were never given a readable copy of the back of the contract, it is questionable whether those provisions apply to the plaintiffs. The court has to presume that the plaintiffs were aware of these provisions. Otherwise, the named plaintiff would not have requested an increase in the limit of liability.
Bartha v. Waterbury House Wrecking Co. , 190 Conn. 8 ( 1983 )
Dougherty v. Graham , 161 Conn. 248 ( 1971 )
New York Life v. Hartford Nat. Bank , 2 Conn. App. 279 ( 1984 )
Plouffe v. New York, New Haven & Hartford Railroad , 160 Conn. 482 ( 1971 )
Vastola v. Connecticut Protective System, Inc. , 133 Conn. 18 ( 1946 )