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Case Studies
Pelletier v. Sordoni/Skanska Constr. Co., 286 Conn. 563 (2008)
The Connecticut Supreme Court holds that a general contractor has no regulatory or common-law duty to inspect welds on steel beams fabricated by a subcontractor on the premises of the subcontractor's shop; express language of subcontract central to ruling
In a landmark, unanimous decision issued on April 14th, the Connecticut Supreme Court sharply limited the scope of a general contractor's duty to inspect, and ensure the integrity of, fabrication and welding work performed by a subcontractor. In Pelletier v. Sordoni/Skanska Constr. Co., 286 Conn. 563 (2008), the Court held that the defendant, Sordoni/Skanska, had no such legal duty under either the state Building Code, or the common law, and therefore reversed a $41.4 million judgment in favor of the plaintiffs, Norman and Reine Pelletier, and ordered the trial court to direct judgment for Sordoni/Skanska.
Norman Pelletier was rendered a paraplegic in 1994 while working on a construction project in Shelton for which Sordoni/Skanska was the general contractor. One end of a two-ton steel crossbeam fell and struck Mr. Pelletier, who was installing sheet metal flooring, a few minutes after several of his co-workers had bolted the crossbeam to a seat connection welded to a vertical steel column. It was later determined that Mr. Pelletier's employer, Berlin Steel Construction Company, the steel subcontractor hired by Sordoni/Skanska to fabricate, erect, inspect and ensure the integrity of all structural steel used at the Shelton project, had failed to properly weld the seat connection in question. Berlin Steel's faulty work – failing to replace the provisional 'tack' weld on that seat connection with a permanent weld capable of supporting the weight of the crossbeam – was the cause of the accident. In 1995, Mr. Pelletier, who was barred by worker's compensation exclusivity from suing his employer, Berlin Steel, brought suit against Sordoni/Skanska. Following a successful appeal by the plaintiffs in 2003, in which the Supreme Court held that an injured employee of an independent subcontractor may sue the general contractor if the employee can establish a legal and factual basis for the general contractor's liability, the case came before the trial court in Waterbury.
After hearing argument on the plaintiffs' claimed bases for liability, the trial judge denied Sordoni/Skanska's motion for summary judgment and held that the plaintiffs could establish a legal basis for Sordoni's liability under Section 1307 of the Connecticut Building Code. The Code adopts by reference the 1987 Building Officials & Code Administrators International ("BOCA")/National Building Codes and the incorporated provisions of the American Welding Society's Structural Welding Code – Steel, AWS D1.1. The trial court held that Section 1307's requirement that the permit applicant provide for special inspections of all work, including steel welds, and provide statements of those special inspections to the state, created a nondelegable duty for the permit applicant to inspect, and ensure the integrity of, every steel weld used at the site – a duty that could not be transferred to a subcontractor, even if the work in question was to be performed by that subcontractor. (Sordoni/Skanska was, by contract with the site owner, Pitney Bowes, the permit applicant.) The trial court did conclude, however, that Sordoni/Skanska did not owe the plaintiff a common-law duty because the accident was not foreseeable and because Sordoni/Skanska did not exercise control over the instrumentality – i.e., the faulty weld – that caused the accident. Following an emotional trial, the jury awarded the plaintiffs a verdict of $32,155,834.74, and the trial court added on over $9 million in prejudgment interest, for a total judgment of $41,417,065.15. Sordoni/Skanska then appealed and the plaintiffs cross-appealed.
On appeal, the Supreme Court unanimously reversed the trial court's ruling and held that Sordoni/Skanska had neither a regulatory nor a common-law duty to inspect the steel welds used at the construction site. The Court determined that the Building Code provisions at issue did not create such a duty; to the contrary, the relevant sections of Section 1307 of the Code, especially the incorporated provisions of Section 6 of the AWS Welding Code, placed that responsibility squarely on the steel subcontractor and not the general contractor. In reaching this conclusion, the Court placed special emphasis on the fact that: (a) Section 6 requires the steel subcontractor to inspect, or provide for the inspection of, all of its fabrication and welding work, but merely gives the general contractor the prerogative to perform such inspections; and (b) the express language in the subcontract between Sordoni/Skanska and Berlin Steel required Berlin Steel to inspect all welds in accordance with the building and welding codes. While the Court assumed, without deciding, that a general contractor theoretically can have a duty to provide special inspections under Section 1307, the Court concluded that, in this case, the language of the welding code and the subcontract placed that legal duty on Berlin Steel and not Sordoni/Skanska.
The Court also rejected the plaintiffs' cross-appeal and upheld the trial court's conclusion that Sordoni/Skanska did not have a common-law duty to inspect all the steel welds. First, the Court determined that Sordoni/Skanska had no reason to foresee that Berlin Steel would not perform its work properly – and thus had no reason to anticipate any obligation on its part to double-check its expert subcontractor's work. Second, the Court held that the fabrication and erection of steel beams is not the sort of work that involves the "peculiar and unreasonable risk" of serious harm to others, and therefore that Sordoni/Skanska did not have a duty to take special precautions to ensure Mr. Pelletier's safety. The Court sensibly chose not to lump ordinary construction work in with such ultrahazardous activities as blasting with dynamite and working with high-tension electrical wires (past examples of work for which special precautions are required). Finally, the Court held that Sordoni/Skanska did not have control over the instrumentality – i.e., the defective weld – that caused Mr. Pelletier's injuries because the defective fabrication took place at the Berlin Steel factory and not at the construction site itself.
Daniel J. Krisch of Horton, Shields & Knox, argued the case before the Supreme Court for Sordoni/Skanska, along with his partner Kimberly A. Knox.
Corcoran v. Susan Bysiewicz, Secretary of the State of Connecticut (Sept. 3, 2008)
The Republican Town Committee endorsed Matthew Corcoran as its candidate for State Representative for the 88th Assembly District. General Statutes §9-391(c) provides that the candidate's certificate of endorsement must be filed with the Secretary of the State within 14 days of the endorsement. Due to an honest mistake, Corcoran's certificate was filed a day late. Based on the late filing, the Secretary of State refused to place Corcoran's name on the November 4, 2008 ballot as the Republican endorsed candidate. Attorney Brendon P. Levesque filed a motion for temporary injunction in order to have Corcoran's name placed on the ballot as the Republican endorsed candidate.
Attorney Levesque argued that because the late filing was caused by an honest mistake because there was no administrative hardship to the Secretary, that the Secretary had discretion to add his name to the ballot. The attorney general responded by arguing that a 2006 amendment to §9-391 removed the Secretary’s discretion to add Corcoran's name to the ballot regardless of the circumstances.
Superior Court Judge Kevin G. Dubay ruled that "In the narrow circumstances of this case, the court finds that a temporary injunction must issue... The plaintiff has no adequate remedy at law and will suffer an irreparable harm if he is not placed on the ballot as the endorsed Republican candidate for state representative." The office of the Attorney General did not appeal the decision.
Durrant v. Board of Education, 284 Conn. 91 (2007) (en banc)
Supreme Court Maintains Governmental Immunity Protections
A closely divided Supreme Court declined to expand the identifiable person/imminent harm exception to governmental immunity in Durrant v. Board of Education, 284 Conn. 91 (2007). As a general matter, municipal employees enjoy immunity and cannot be held liable for negligent acts performed in the course of their official duties. A very narrow exception exists where the failure of a municipal employee to act will subject an identifiable person to imminent harm. The Supreme Court expanded this exception in Burns v. Board of Education, 228 Conn. 640 (1994), to include an identifiable class of persons subject to imminent harm, in that case schoolchildren on school grounds during regular school hours.
Mrs. Durrant, the plaintiff in this case, fell as she left a Hartford school where she was retrieving her son and nephew from a voluntary after-school day-care and homework-assistance program. The program was funded by the state, and the authorizing statute required recipients to maintain liability insurance. Mrs. Durrant sustained injuries from her fall and brought an action, claiming that government immunity did not apply. She reasoned that her son would be able to sue under Burns, even though he was on the property for the after-school program, and that it was reasonably foreseeable to school officials that parents and their proxies would retrieve their children in the absence of bus service, which was the case here.
The trial court granted summary judgment, but the Appellate Court reversed in a 2-1 decision. The majority reasoned that the "evolving expectations of a maturing society," as stated in Burns supported an expansion of the class of persons subject to the identifiable person/imminent harm exception to governmental immunity. The majority further noted that while the plaintiff's son was not compelled to participate in the program, it was for his benefit and his participation was encouraged. Therefore, the majority held that the identifiable person/imminent harm exception applied to him and by extension his mother. Specifically, the majority concluded that the plaintiff was effectively compelled to reassert protective custody over son at the end of the program.
The Supreme Court reversed in a 4-3 decision. The majority held that the plaintiff's son was not a member of a class of identifiable persons subject to imminent harm because the class exception applied only when children were statutorily compelled to attend school. Thus, the voluntary nature of his participation in the after-school program was a critical factor. Because the plaintiffs son was not subject to the exception, the plaintiff was not either.
Of note in the analysis is that the legislature codified the common-law doctrine of governmental immunity in Conn. Gen. Stat. Sec. § 52-557n in certain circumstances, such as those in this case. The court has held that this codification included the identifiable person/imminent harm exception. Because the legislature has codified the common law in this area, the Court believes its authority to alter the common law on this subject is quite limited.
Attorney Kenneth Bartschi represented the defendants in their successful Supreme Court appeal.
Connecticut Supreme Court Examines Premarital Agreement Statute in Landmark Decision
It took four years, but in early 2007, David Friezo was able to enforce the pre-nuptial agreement he and his ex-wife when the Connecticut Supreme Court concluded that the agreement was valid. The 6-1 decision in Victoria Wood Friezo v. David Friezo, 281 Conn. 166 (2007) (en banc), provides a primer to family law practitioners and judges for executing and enforcing pre-nuptial agreements signed after October 1, 1995, when Connecticut’s Premarital Agreement Act went into effect.
The parties met in London in 1994 where they worked at a bank. They soon began dating and eventually moved in with each other. In 1995, Mr. Friezo, an American citizen, bought a home in Westport. In 1997, he asked the future Ms. Friezo, a British national, to come to Westport to supervise renovations of the home.
In August 1998, Mr. Friezo proposed to Ms. Friezo and soon thereafter informed her that they would need to sign a prenuptial agreement. The parties initially agreed to a private wedding November 6, 1998, with a ceremony the following July for family and friends. Because the prenuptial agreement was not ready, the wedding was rescheduled for the following week.
A little over a week before the rescheduled wedding, Mr. Friezo gave Ms. Friezo a draft agreement and asked her to review and sign it. He suggested that his sister-in-law, with whom Ms. Friezo was friends, could find a lawyer for her to review the agreement.
A few days later, Ms. Friezo met another lawyer in the sister-in-law’s firm. By this meeting, Ms. Friezo had reviewed the agreement and made several notations on it concerning questions she had and changes she wanted. Her attorney negotiated these changes with Mr. Friezo’s lawyer, securing an additional $2 million in proper settlement if the marriage lasted 30 years.
The parties met on November 12 to sign the agreement. Although the draft agreement did not contain specific financial information for Mr. Friezo, the final document included a detailed list of his assets. Ms. Friezo’s lawyer was not at the closing, but she reviewed and signed the agreement and left for a hair appointment.
In June 2002, Ms. Friezo filed for divorce. In court papers, Mr. Friezo sought enforcement of the prenuptial agreement. The trial court concluded that, although Ms. Friezo did not sign the agreement under duress, it was nevertheless unenforceable because she did not have adequate time to review the financial information Mr. Friezo provided before signing the agreement. The trial court further concluded that the attorney who advised Ms. Friezo’s on the agreement was either incompetent or not really representing his client.
The Supreme Court disagreed. The majority opinion, written by Associate Justice Peter Zarella, first concluded that the statute in question, Conn. Gen. Stat. Sec. § 46b-36g, which requires “fair and reasonable disclosure” of financial information prior to signing a prenuptial agreement, referred to the substance of the financial information provided, not its timing. The court also held that the burden to inform falls on the disclosing party but that full financial disclosure is necessary only where the other party lacks independent knowledge of the other’s finances. The court further held that the disclosure requirement is stringent in that it is between persons in a confidential relationship. Even so, the disclosure need not be precise and a general approximation of income, assets, and liabilities will suffice. Notably, the court held that the financial wherewithal of the party to whom disclosure is made is not relevant in determining the adequacy of the disclosure. The court also concluded that disclosure to the party's attorney is adequate, as the knowledge of the attorney is imputed to the client.
The court rejected Ms. Friezo’s claim that she had insufficient time to review the agreement, noting that she could have postponed the wedding and asked for more time. She also had the option of remaining unmarried. Notably, the court expressly repudiated the paternalistic notion that women needed protection in financial matters, citing Ms. Friezo’s own financial savvy in supporting herself and the intelligent questions she raised concerning the draft agreement.
Addressing the trial court’s concerns that Ms. Friezo lacked the opportunity to consult independent counsel, the majority held that the statute only required a “reasonable opportunity” to consult a lawyer. Because Mr. Friezo had not sprung the need for a prenuptial agreement at the last minute, she had ample opportunity to seek counsel and had, in fact, done so. The Supreme Court also rejected the trial court's finding that Mr. Foley had some sort of conflict because another lawyer in the firm was Mr. Friezo’s sister-in-law, noting that there is no conflict by virtue of an in-law relationship and, even if there was a conflict, it was limited to the sister-in-law and did not apply to other lawyers in the firm. The court also noted that Ms. Friezo waived any conflicts.
The court therefore sent the case back to the trial court for further proceedings to enforce the prenuptial agreement.
Associate Justice Fleming Norcott dissented. He concluded that the majority should have been more deferential to the trial court’s factual findings and that under this deferential standard, the finding of invalidity could be sustained.
Nevertheless, Justice Norcott would have ordered a new trial on financial orders because of another error the trial court made. Specifically, in a colloquy with Mr. Friezo’s trial counsel, Attorney Edward Nusbaum, the trial court made it clear that it presumed that marital property should be divided evenly. When Attorney Nusbaum pointed out another judge held otherwise in Wendt v. Wendt, which was upheld by the Appellate Court, the trial court retorted, “Possibly a travesty. You’re dealing with a different judge.” Justice Norcott, however, viewed Wendt as properly decided and would have reversed based on the trial court's failure to follow binding authority.
Mr. Friezo was represented on appeal by Wesley Horton and Kenneth J. Bartschi of Horton, Shields & Knox, P.C., of Hartford and by Edward Nusbaum of Westport’s Nusbaum & Parrino, P.C., at trial.
Connecticut Supreme Court Holds that a Trial Court May Award Attorneys’ Fees Where the Opposing Party Fails to Disclose Marital Assets Regardless of the Recipient’s Need for Attorneys’ Fees.
A divorce can present some of the most acrimonious litigation in the court system. It is not unusual for divorcing spouses to hide or spend assets to avoid paying them to their soon-to-be exes. Nor is it unusual for divorcing spouses to hide information about their assets from the other side. Such tactics now can result in paying potentially hefty attorneys’ fees as a result of the Connecticut Supreme Court's 4-3 decision in Melissa Ramin v. Kurt Ramin, 281 Conn. 324 (2007) (en banc).
“This is an important development in Connecticut family law and provides an important tool for trial judges to compensate spouses who have had to expand substantial attorneys’ fees to acquire information to which they are entitled,” said Attorney Kenneth Bartschi, who argued the appeal in the Supreme Court on behalf of the plaintiff, Melissa Ramin. The Court’s decision allows the plaintiff and her attorneys to be compensated for the time and effort they spent tracking down substantial marital assets hidden by the defendant, Kurt Ramin.
Previously, a judge’s discretion to award attorneys’ fees in a divorce case were limited to situations where the recipient spouse could not afford an attorney or would have to use property awarded to him or her that court intended to use for the party’s support. The majority opinion, authored by Senior Associate Justice David Borden, concluded that where attorneys’ fees are caused by the misconduct of the other spouse during the litigation, the court should not be precluded from making an award of attorneys’ fees to the innocent spouse, even if that spouse has sufficient liquid assets to pay his or her attorneys’ fees. One of Mrs. Ramin’s lawyers, Thomas Parrino of Westport’s Nusbaum and Parrino, had argued at trial that an award of attorneys’ fees was necessary to prevent in future cases the sort of egregious misconduct the defendant had engaged in before and during trial.
The court also held that the trial court abused its discretion when it refused to decide a motion for sanctions the plaintiff had filed in frustration with the defendant, Kurt Ramin’s, failure to comply with previous discovery orders. When one of the plaintiff’s trial attorney’s, Susan Moch, pointed out that that the defendant failed to provide a laundry list of documents he had been ordered to produce, the court expressed its exasperation at the length of time the case had been on what was a crowded docket. Nevertheless, the majority concluded that trial judges must consider non-vexatious, properly-filed motions.
The dissent, authored by Associate Justice Peter Zarella, saw the majority decision on the discovery ruling as infringing too far into the trial court’s discretion. The dissent also viewed the majority’s expansion of the attorneys’ fee ruling as being inconsistent with governing statutes.
&Knox, P.C., of Hartford, and at trial by Attorney Parrino of Westport’s Nusbaum & Parrino, P.C., and Attorney Moch of the Law Offices of Susan A. Moch, also in Westport.
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