159 Conn.App. 129
Conn. App. Ct.2015Background
- Plaintiff Richard Palkimas owned a historic house with horsehair plaster walls and hired a contractor (Fernandez) for renovations; Nationwide was the contractor’s insurer.
- Sewage flooding occurred in Sept. 2006; remediation was performed by independent contractors (Hygenix and ServPro) and heating to the house was turned off during remediation.
- After remediation, plaintiff discovered cracks, soft walls, and broken plaster keyways; he alleged freezing and moisture during remediation caused the damage.
- Plaintiff sued Nationwide (after dismissing the contractor defendants), alleging negligence for failing to provide heat or otherwise prevent prolonged exposure to freezing temperatures during remediation.
- At trial, plaintiff’s expert (engineer Barry Nelson) testified freezing plus humidity caused the damage but conceded lack of measurements, tests, or horsehair-plaster experience; defendant’s expert (Peter Lord), a plaster/restoration specialist, testified freezing and normal moisture do not cause such damage and that the sewage flooding was too limited to explain the damage.
- Trial court found Nationwide not liable, concluding it lacked control over independent contractors and that plaintiff failed to prove proximate causation; this appeal challenges the proximate-cause finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did plaintiff prove proximate causation between lack of heat during remediation and plaster damage? | Palkimas: lack of heat exposed plaster to freezing/moisture which fractured keyways and caused cracking. | Nationwide: plaintiff’s expert lacked relevant tests/experience; defendant’s expert showed freezing/moisture would not cause the damage; causation not established. | Court: Held plaintiff failed to prove proximate causation; finding not clearly erroneous. |
| Was expert testimony sufficient and credible to establish causation? | Palkimas: Nelson’s engineering opinion established causal link. | Nationwide: Nelson had no plaster expertise, performed no tests, and his conclusions were speculative; Lord’s specialized testimony was more credible. | Court: Preferred defendant’s expert; discounted plaintiff’s expert as unverified and less experienced. |
| Was defendant liable for acts of remediation contractors? | Palkimas (alternative): Nationwide directed heat be turned off and thus controlled remediation. | Nationwide: did not control independent contractors; plaintiff provided no proof it ordered heat off. | Court: Did not reach fully due to disposition on causation, but found no control in memorandum and affirmed on proximate cause. |
| Was trial court’s factual finding subject to plenary or clearly erroneous review? | Palkimas: sought plenary review of proximate-cause finding. | Nationwide: argued clearly erroneous standard applies to factual findings. | Court: Applied clearly erroneous standard (proximate cause is a factual question) and affirmed. |
Key Cases Cited
- Gurguis v. Frankel, 93 Conn. App. 162, 888 A.2d 1083 (Conn. App. 2006) (proximate cause ordinarily a question of fact)
- Stein v. Tong, 117 Conn. App. 19, 979 A.2d 494 (Conn. App. 2009) (standard of review for factual findings; trial court’s inference of fact not reversible unless unreasonable)
- United Technologies Corp. v. East Windsor, 262 Conn. 11, 807 A.2d 955 (Conn. 2002) (trial judge as sole arbiter of witness credibility and weight of expert testimony)
- Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 446 A.2d 799 (Conn. 1982) (trial court afforded discretion regarding witness testimony credibility)